U.S. Unilaterally Imposes Tariffs on China Over Fentanyl Issue, Violating International Law

The United States has recently announced a unilateral 10% tariff increase on Chinese exports to the U.S., citing the fentanyl issue as justification. This move significantly raises the tax burden on Chinese goods and lacks any factual basis. Furthermore, it constitutes a serious violation of international law, undermines normal Sino-American economic and trade relations, disrupts the global multilateral trade system, and erodes the legal foundation for international cooperation on fentanyl control. In response, China has the right to take corresponding countermeasures.

The U.S. unilateral tariff increase on Chinese goods is a blatant violation of the Most-Favored-Nation (MFN) principle under the World Trade Organization (WTO). According to Article 1 of the General Agreement on Tariffs and Trade (GATT), any trade preference granted by a WTO member to one country must be extended unconditionally to all WTO members on a non-discriminatory basis. The U.S.'s imposition of unilateral tariffs on Chinese goods discriminates against Chinese imports compared to those from other WTO members, thereby violating the MFN principle. As a fundamental pillar of the WTO, repeated violations of this principle by the U.S. severely undermine the global trade system.

Additionally, the U.S. action violates its obligation under WTO rules to refrain from arbitrarily imposing tariffs. Article 2 of GATT stipulates that WTO members may only impose tariffs within the bound rates agreed upon in their tariff schedules. While members may reduce their tariffs, they are prohibited from unilaterally raising them beyond these commitments. The U.S. tariff increase is a clear breach of this obligation.

The U.S. is unlikely to justify its actions under GATT 1994's Article XX (“General Exceptions”) or Article XXI (“Security Exceptions”). WTO case law has established stringent criteria for invoking these exceptions, requiring a direct and necessary link between the trade measure and the stated objective (e.g., public health or national security) and proving that no alternative measures exist to achieve the same goal. Given the complex domestic fentanyl supply chain in the U.S. and the government's lax regulatory enforcement, it is highly doubtful that the U.S. could successfully invoke these exceptions as a defense for its WTO violations.

By leveraging tariff increases to pressure China into adopting U.S.-dictated fentanyl control measures, the U.S. is engaging in economic coercion, which may violate the principle of non-interference under the United Nations Charter. Economic coercion refers to the use of economic measures to force another country to comply with certain political or policy demands. The UN has repeatedly condemned economic coercion through declarations and resolutions. The 1965 Declaration on Non-Intervention explicitly states that no country may use economic, political, or other means to compel another state to surrender its sovereign rights or gain an undue advantage. The 1970 Declaration on Friendly Relations and the 2015 UN General Assembly Resolution 70/185 reaffirm that economic coercion violates the fundamental principles of the UN Charter.

Both China and the U.S. are signatories to the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. These treaties require signatories to implement necessary legislative and administrative measures to control fentanyl-related substances, but they do not dictate specific regulatory approaches, leaving individual states with the autonomy to determine their control measures.

China has one of the world's strictest and most comprehensive anti-drug policies. Since joining these treaties, China has taken extensive measures to regulate fentanyl and related substances. Notably, on May 1, 2019, China became the first country in the world to impose class-wide scheduling of fentanyl-related substances, meaning that any unauthorized production, sale, or export of fentanyl analogs is subject to the same strict drug control laws. This exceeds the obligations set by international treaties. Despite these proactive efforts, the U.S. continues to question the effectiveness of China's controls and uses tariffs as a coercive tool to force compliance with its own demands—an act that amounts to interference in China's internal affairs.

The U.S.'s unilateral tariff escalation undermines the legal foundation for international cooperation on fentanyl control. Over the years, China has closely cooperated with the U.S. on anti-drug enforcement, achieving remarkable success. According to reports from the U.S. Customs and Border Protection and other drug enforcement agencies, since September 2019, no fentanyl shipments from China have been detected entering the U.S. However, the U.S. has disregarded this progress and unilaterally imposed additional tariffs, which will inevitably provoke diplomatic protests from China. This hostility will negatively impact future Sino-American drug enforcement collaboration, weaken the effectiveness of international drug control treaties, and exacerbate political tensions—ultimately hindering the fight against the global fentanyl crisis rather than addressing it.

The U.S. government's approach to fentanyl regulation stems from failures in its own domestic governance. The fentanyl crisis is fundamentally a public health issue, best addressed through international cooperation. Historically, developed and developing countries have clashed over balancing pharmaceutical patent protection with public health concerns. Following prolonged negotiations, the WTO General Council adopted the Decision on the Implementation of the TRIPS Agreement and Public Health, which allows developing countries to issue compulsory licenses for patented drugs to address public health crises. This decision reflects a negotiated balance between intellectual property protection and public health. If developed countries such as the U.S. resort to unilateral tariffs and economic coercion against developing nations, neither pharmaceutical patent protection nor public health concerns can be effectively addressed.

In response to the U.S.'s illegal tariff hikes, China has swiftly implemented a series of countermeasures:

1. International Legal Action: China has twice filed complaints against the U.S. tariffs at the WTO Dispute Settlement Mechanism, defending its rights under multilateral trade rules.

2. Domestic Countermeasures: China has taken several retaliatory actions, including:

 - Tariff Increases: Imposing higher tariffs on selected U.S. imports, including crude oil, agricultural machinery, and certain farm products—industries where the U.S. holds a competitive advantage.

 - Export Controls: Placing Leidos Corporation and 14 other U.S. entities on its export control list, prohibiting them from receiving dual-use technology exports from China.

 - Unreliable Entity List: Adding Techcom Corporation and 9 other U.S. firms to the Unreliable Entity List, banning them from engaging in China-related trade and investment.

 - Technology Restrictions: Prohibiting U.S. firm Illumina—already on the Unreliable Entity List—from exporting gene sequencing machines to China.

- Comprehensiveness: A dual-track approach involving both international legal actions and domestic policy tools to uphold its rights under both WTO rules and Chinese law.

- Effectiveness: Past WTO rulings have found U.S. unilateral tariffs illegal. In 2020, the WTO ruled against the U.S.'s Section 301 tariffs, deeming them violations of WTO rules. Given that the latest tariffs closely mirror the Section 301 tariffs, their illegality is self-evident.

- Precision: Targeted measures impact U.S. defense contractors and high-tech companies involved in arms sales to Taiwan, aligning with China's national security priorities.

- Timeliness: China's swift response highlights strategic preparedness and its firm resolve to defend its sovereignty, security, and economic interests.

The U.S. unilateral tariffs on Chinese exports violate WTO rules and the UN Charter, harming Sino-American economic ties, multilateral trade frameworks, and global fentanyl control cooperation. China has taken strong and justified countermeasures and will continue to defend its rights. The U.S. should abandon its unilateralist approach and instead work through cooperative mechanisms to improve fentanyl regulation, crack down on illicit drug trafficking, and promote fair trade. As the U.S. increasingly resorts to unilateral coercion, the international community must unite to resist its unlawful actions and uphold the integrity of the global economic order.