Fears of trading breach on first day of milk curbs
Limit on formula also affects genuine operators, academic says, which is an illegal restraint
A law professor has added his voice to fears that the government risks breaching world trade laws by curbing the amount of baby milk formula that people can take with them when leaving Hong Kong, as the measure took effect yesterday.
Legal experts say the crux of the potential breach of the World Trade Organisation law lies in whether the policy - limiting formula exports to two cans per person - blocks commercial exports. In theory, the government could be challenged if immigration officers impose the limit on people who say the export is part of their business.
The most likely breach would stem from a general rule the WTO adopted - Article XI:1 of the General Agreement on Tariffs and Trade (GATT). It bans prohibitions or restrictions - other than duties, taxes or other charges - whether made effective through quotas, import or export licences or other measures.
Bryan Mercurio, professor of law at Chinese University, says a breach of this rule could arise if people carrying a third tin are barred from doing so at the border "even if they declared the goods as commercial".
Mercurio said earlier he was not sure whether the policy would conflict with international trade law. But after reading the government's draft law, he says he is more certain that a conflict would arise. "As drafted, the objective of the amendment is to prohibit exports. This violates Article XI:1 [of GATT]," he said.
"Its objective is to prohibit exports - so it applies to legal traders. That is an illegal export restraint."