Source: YI CAI

Author: Feng Difan

Following his return to office, within less than two months, Trump has once again ignited a trade war—and an epic global one at that. China's firm opposition and resolute countermeasures have demonstrated to trading partners worldwide, who are bullied by the US, the appropriate way to engage with the Trump administration. The rationale behind China's stance was already described nearly a thousand years ago in "On the Six Kingdoms": "Appeasing Qin with land is like carrying firewood to put out a fire; the fire will not cease as long as the firewood lasts." Faced with a Trump administration characterized by bullying, dishonesty, insatiable greed, and a tendency to take an inch given a yard, fawning, yielding, or surrendering will not buy a moment's peace.

In fact, for the vast majority of ordinary people, countermeasures are perfectly justified. The simple, intuitive understanding is, "He hits me, why can't I hit back?" Even those who haven't studied law are more or less familiar with a legal term called "self-defense." However, this seemingly fundamental right is strictly restricted under WTO rules. For instance, WTO regulations stipulate that a member cannot unilaterally determine that another member has violated WTO rules, nor can it take retaliatory measures against another member without WTO authorization. In other words, even faced with actions like those of the US, which completely disregards WTO rules and brutally imposes tariffs, China cannot unilaterally declare the US in violation, nor can it retaliate or take countermeasures without WTO authorization. Otherwise, China's countermeasures could also be suspected of violating WTO rules.

This seems like a huge loophole in the WTO rules! But that's not the case. If we go back to 2018, during Trump's first term, before the Appellate Body was paralyzed, China's countermeasures against the US Section 301 tariffs might have been somewhat controversial. However, after the Appellate Body ceased to function, China's countermeasures against US-imposed tariffs have a solid foundation in international law, particularly the provisions on countermeasures in Chapter II of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter "ARSIWA"), which is generally regarded as having the status of customary international law. For example, Article 52(3) stipulates that countermeasures may not be taken, and if already taken, must be suspended without undue delay if: "(a) the internationally wrongful act has ceased; and (b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties." Paragraph 4 of the same article also states that paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith. Given that the US continuously imposes tariff measures on China, and due to the paralysis of the Appellate Body, no binding ruling can be made against the US—especially as the US blocks the adoption of panel reports by appealing even after losing repeatedly at the panel stage—China certainly has the right to adopt countermeasures under ARSIWA to rectify the US's internationally wrongful acts.

ARSIWA defines an internationally wrongful act as conduct attributable to a State and constituting a breach of an international obligation of that State. These international obligations include both treaty and non-treaty obligations, as well as multilateral and bilateral obligations. Besides the multilateral obligations under WTO rules mentioned above, acts violating "bilateral treaties" also constitute a breach of international obligations. For instance, the recent US Section 301 measures imposing fees on Chinese vessels and Chinese vessel operators clearly violate the Most-Favored-Nation principle in Article 6 of the 2003 US-China Maritime Transport Agreement. This agreement does not provide a dispute settlement mechanism for the two countries, and the US has made no commitments regarding maritime services under WTO rules. In such a situation, where no court or tribunal has the authority to make binding rulings against the US, China's adoption of countermeasures based on ARSIWA is entirely consistent with international law.

Regarding breaches of "non-treaty obligations" in public international law, the easiest to understand are violations of peremptory norms of general international law (jus cogens), such as crimes against humanity or genocide. However, "non-treaty obligations" may also be reflected in some principles of general international law that seem more like exhortations, such as the general principles of international law enshrined in the UN Charter and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States: non-intervention in internal affairs, sovereign equality, and international cooperation on a non-discriminatory basis. This is not my original idea; it is the theoretical basis of international law discussed in the preamble of the EU's Anti-Coercion Instrument. Recently, the Chinese government clearly stated that "We firmly oppose any party reaching a deal at the expense of China's interests. Should such a situation occur, China will never accept it and will resolutely take reciprocal countermeasures." In this context, the Chinese government, acting under the domestic legal authorization concerning anti-discrimination in the Foreign Trade Law and adopting countermeasures based on ARSIWA, is also fully in line with international law.

In short, amidst the current turbulent and shifting international economic and trade landscape, responding to US hegemonic practices with firm countermeasures, and striking back at other followers who dare to side with and blindly follow the US, is a necessary act to prevent international trade rules from degenerating into the law of the jungle. It is a just act to uphold the multilateral system, and a legitimate act in accordance with international law!

We are all witnesses to this trade war, and potentially its victims as well—especially those facing halted shipments, vanished orders, factories reducing or even stopping production, and workers furloughed or laid off. However, it seems we have little choice but to fight with our backs to the river and gradually de-risk from the United States. I believe the Chinese government has certainly made comprehensive preparations and has a rich reserve of policies ready. The sky isn't falling, is it?

Trump Launches Section 232 Investigation into Critical Minerals

April 15, 2025, Trump signed a presidential executive order directing the Secretary of Commerce to initiate a national security investigation under Section 232 of the Trade Expansion Act of 1962 into US dependence on imports of processed critical minerals and derivatives thereof, to assess "the impact of imports of those materials on the national security and resilience of the United States."

According to the executive order, this investigation will cover critical mineral resources, including rare earth elements, which the order describes as "critical building blocks for the defense industrial base," essential for manufacturing jet engines, missile guidance systems, advanced computers, and radar, optical, and communications equipment. The investigation also covers uranium, as well as processed critical minerals and derivative products.

Trump stated in the executive order: "The dependence of the United States on imports, and the vulnerability of our supply chains, increase the possibility of risks to national security, defense preparedness, price stability, and economic prosperity and resilience," and pointed out that "processed critical minerals and their derivative products are vital to national security because they form the foundation of military infrastructure, energy infrastructure, and advanced defense systems and technologies." The order claims that the manufacturing and defense industrial bases of the United States still rely on foreign sources for processing critical mineral products. If the United States is unable to obtain processed critical minerals from foreign sources, the commercial and defense manufacturing bases for US derivative products could face serious shortages and an inability to meet demand.

The Federal Register notice for the Section 232 investigation into processed critical minerals and derivatives has not yet been published. The deadline for submitting public comments on this Section 232 investigation is 21 days after the official publication in the Federal Register.

If Trump imposes tariffs on critical minerals based on the results of this national security investigation, then according to previously issued presidential executive orders, the Section 232 tariffs on critical minerals and their derivatives would replace the "reciprocal tariffs" imposed on them.