关于中国电信垄断和开放的分析
1. Introduction
In recent years
Four agreements in the WTO directly related to the information industry areas：The "Information Technology Agreement" on the goods trade, the "basic telecommunications agreement", the trade-related "Intellectual Property Rights" (TRIPS), in addition, there is a discussion of "e-commerce" question, therefore,
At the same time,
After China's accession to the WTO, the domestic telecommunications market environment will undergo great changes, as the Chinese government’s industry control is concerned, on the one hand, it should reform and adjust the domestic telecommunications legislation, management and policy system to make the management manner consistent with the WTO's basic principles and requirements, protect foreign investors’ interests, and ensure the effective competition of domestic telecommunications market, on the other hand, it should further strengthen our government’s effective management to the telecom industry so as to enable the government to execute the effective control with the telecommunications department which locals the foundation status in the economic and social life. Taking into account that
Basing on the actual development situation of China's telecommunications business, according to the agreement of the WTO and commitments of China's Entry into WTO commitments, preliminary thinking should be carried out about how to deal with the management of China's telecommunications industry；In a word, facing such opportunities and challenges, how to run the
2. The Agreements on Telecommunications
2.1 The World Trade Organization (WTO) GATS
World Trade Organization (WTO) was established in January 1, 1995 and is headquartered in
WTO as a formal international trade is in equal legal status with the United Nations and other international organizations. In addition to implementation of multilateral trade agreements and multilateral trade negotiations and providing an international forum the original GATT organization has provides, its responsibilities also include the regular consideration of its trade policies and dealing with trade disputes among members, and be responsible for strengthening relations with the IMF and the World Bank to cooperate to achieve global consistency of economic policy-making.
WTO agreements rang from agriculture to textiles and clothing, from services to government procurement, from rules of origin to intellectual property rights etc. Compared with its predecessor, GATT, the WTO covers trade in goods，trade in services and intellectual property trade, while knowledge of the GATT trade only serves for merchandise goods.
Modern economy is a service-based economy, and an efficient services sector is a prerequisite for economic development. From 1986 onwards, trade in services became the Uruguay Round important topic for negotiations, although countries have a serious rift on the negotiating objectives, trade in services and trade relations, trade in services and the content and national treatment, exceptions and safeguards, through coordination and consultation, countries finally reach the GATs draft in 1991, and it was adopted finally as an important component of WTO in December 1991.
On February 5, 1998, the WTO agreement on basic telecommunications services, called the Fourth Protocol to the GATS, entered into force. In varying degrees, 72 WTO Members have pledged to open their markets to foreign competition, allowing overseas companies to buy stakes in domestic telecom companies and to abide by common rules on fair competition in telecom markets. The liberalization of telecom markets will be beneficial because it encourages a more efficient use of resources, such as capital and manpower. Furthermore, the agreement is likely to promote innovation, productivity, diversity and quality of products. For many telecommunication users, the transition to a multilateral trading system will bring benefits in terms of greater choice and lower prices. For the majority of carriers, there will be significant benefits in terms of creating new market opportunities and a more level playing field.
Signing and implementation of GATs is the most significant achievements of the Uruguay Round of multilateral trade negotiations, and it makes the standardization of international trade in services, liberalization began on the agenda which is bound to have a far-reaching impact on world trade and international trade in services as a whole. GATS agreement has three aspects : version of GATS, it is of a general area, including applicable services, definitions, general discipline, and specific commitments, progressive liberalization and the dispute settlement mechanism; Annex II is about the trade in services; The third is the commitment of all members, which is members’ specific obligations.
Still, the impact of the WTO agreement could prove to be rather modest. This is because many exemptions in form of sect oral reservations, limits to foreign investment and phase-in commitments over various periods of time are likely to undermine market access and national treatment commitments. Therefore, the agreement will not necessarily immediately result in a rigorous liberalization of national telecom markets. Apart from the various exemptions, another aspect raises concern about the impact of the WTO agreement on opening national markets: regulatory provisions. Evidence of countries having established elective competition in their telecom markets demonstrates the need for a comprehensive regulatory framework. Yet, the rather general nature of the WTO regulatory provisions raises doubts about whether the rules will be efficient in ensuring open market access. Rather, the agreement seems to leave WTO Members the choice of how to comply with the agreement. Thus, the impact of the WTO agreement on opening national telecom markets might depend crucially on the regulatory framework erected by the WTO Members.
WTO legal framework is composed by the "Final Act of the Uruguay Round", "WTO agreements" and the decisions and declarations annex from other ministers [4]:
(1) Multilateral Agreements on Trade in Goods;
(2) The General Agreement on Trade in Services (GATS) and its annex;
(3) Trade-Related Aspects of Intellectual Property Rights (TRIPS);
(4) Rules and procedures for dispute settlement understanding (DSU), which provides specific rules, procedures, management and time period for the settlement of any agreement under the WTO Agreement and its annexes dispute;
(5) Trade Policy Review Mechanism (TPRM), which is supervising the exercise of the WTO international trade policy at the core functions;
(6) Plurilateral trade agreements, including the "civil aircraft trade agreements", "government procurement agreement."
（1）It marked that the world multilateral trade system is gradually reaching perfect; Although trade in services is growing very rapidly, due to differences in product mix and the stage of economic development, service trade imbalance of development, the international norms of international trade in services didn’t form for a long time. GATs’s appearance meets the urgent demands of the times, fill the gaps and provide a common international norm for all countries in international trade in services.
（2）GATs will promote the continued growth of international trade in services
Due to the differences in stages of economic development, the developed countries have the clear edge in advanced services; the service in the majority of developing countries is still keeping in the most naive status without full ability to compete with the developed countries. GATs followed the GATT rules on the chief principals including the most-favored-nation status, transparency and the participation of developing countries, market access and national treatment principle, which will result in trade restriction in services in all fields and aspects of protectionism, strengthen of trade liberalization trend and steady incensement of world trade in services has.
（3）GATs will promote the all-round development of International Trade
The development of the service sector indicates a country's overall level; precisely because of the backwardness of certain services or even blank in the development of many developing countries, it results in the overall economy and international trade programs. GATs promotes the liberalization of trade in services development and development of international trade closely related to the trade in services.
（4）GATs played a major role in promoting the establishment of a new international economic law and order
In the traditional international legal order, the developing countries is only the object of international law, have no say in international affairs, and most of the international law was in the formulation without Participation of developing countries. At present, developing countries have stepped onto the international political and economic arena. With the participation GATs reflects the demand of developing countries to a certain extent, GATs will become an international economic and legal order of the important sources, but will also contribute significantly to a new international economic order at an early date.
2.2 The General Agreement on Trade in Service (GATS)
According to the WTO basic telecommunications requirements of the agreement in principle, the WTO members must open up the telecommunications market, a key element of which is opening in accordance with the requirements of the WTO basic telecommunications services market. Unlike trade in goods, trade in services is that it has no distinction between the issue of tariffs, the liberalization of service trade in countries generally achieved through domestic policy adjustments. As an important component part of trade services, the opening of telecommunications is also realized by relaxing control of the domestic market and reducing the restrictions on foreign capital to the country.
The basic telecommunications agreement signed on February, 1997 is the most important agreement for the management of telecommunications trade, and in principle it required the WTO member countries must open its telecommunications market. Its specific contents can be divided into the following three parts [5].
(1). General obligations and disciplines
The main contents include the opening part of the basic telecommunications services in principle; (a) most-favored-nation status (MFN) and immunities; (b) transparency; (c) The provisions of domestic regulations.
(2). Appendix Telecom
Appendix telecommunications which introduces the specific provisions of the document on certain telecommunications commitments put forwards the detailed methods and rules on the telecommunications business measures involved in the commitments of the countries.
In fact, same as the first part, this part does not have much room for discussion. So far not a developing country has made any commitment on the implementation of the modifications required.
(3). States commitment to the liberalization of the telecommunications market
The States commitments of opening the telecommunications market is the most crucial part of the WTO basic telecommunications. WTO requires all member countries to put forward their own opening commitments in this part of the basic telecom market. Its main contents include each member's commitment to market access, national treatment and possible additional commitments. In the commitment form, members can be allowed into the market and provided by full national treatment, whereas both of these requirements can also be added to certain restrictions, conditions and qualification, in addition to the need to implement the commitments specified time.
(a) Market entry commitments means that a member who has committed to opening its market allows other service providers to operate telecommunications services on the condition of meeting the specified restrictions which it promised. General restrictions on the market is concerned about the volume of business, additionally, the restrictions include foreign equity participation and organizations type providing the services.
(b) The commitment of national treatment to foreign telecommunications service providers requires that the restrictions imposed on the member countries can not be stricter than native country. If such a situation cannot be avoided indeed, we must set out clearly in its commitment. These differences may include: restrictions on foreigners buying land, or limit the prescribed percentage of foreign equity on some special enterprises in the promising form, or limitation on the nationality or residence of the directors, on foreign ownership restrictions, even allow the priority of domestic investors on the frequency allocations.
(c) The additional commitment
The additional commitments are not covered by the two provisions above, but exactly the impact on telecommunication services trade has been discussed and clarified.
WTO has many rules, which include basic principles, laws related with the goods trade, law rules of textiles and clothing trade, law rules of agricultural trade and service trade, investment measures (TRIWS) related with trade, intellectual property rights (TRIPS) related with trade and World Trade Organization dispute settlement mechanism. Among them, trade in services is mainly determined by the "General Agreement on Trade in Services". "General Agreement on Trade in Services" consists of two main components: the Framework Agreement and the specific obligation all members provide to the table in accordance with Article 20. The Framework Agreement is consisted by the provisions and Appendix part, and telecommunications services appendix is one of them.
Telecommunications services Appendix has certain restriction to the objectives, scope and definition, transparency, public telecommunications transport network and its access and use of services and technical cooperation agreements and relevant international organizations and so on. Among them, "public telecommunications transport network and its access and use of services" is the core provisions of the appendix. It provides that members have the obligations of access and use of the public telecommunications transport network service, including the following aspects [6]:
（1） All members shall be reasonable and non-discriminatory (referring to MFN and national treatment), and allow service providers to provide access and use of services listed in the table of public telecommunications transport network and its services.
（2）Members should allow other members to provide the access and use of public telecommunications transport network and its services, including private leased circuits in its territory, or cross-border. Specifically, the service providers should be allowed to ：purchase or lease the added terminal or other equipment connected with communication networks which is necessary to carry out services; connect rented or own transmission lines of the public telecommunications network and services with another lines service provider owned or leased; Apart from the need to ensure that public services and the use of telecommunications transmission network, members can use his own choice in the provision of services to the business paper.
(3) All members should ensure other members of the service providers may use the public telecommunications transport network and services, exchange information in its territory and cross-border, including the service provider's internal communications, as well as the information of the database or other machine-readable format from any members. If one member introduces new measures which will have a major impact on the service, it should notify all other members and carry out the negotiations in accordance with the procedures of "General Agreement on Trade in Services", but this does not affect members to take the necessary measures to ensure the security and confidentiality, and such measures should not be thought as an unreasonable discrimination or potential limitations on trade in services.
（4）All members shall unconditionally allow service providers from other members access and use of public telecommunications transport network and its services, but the following exceptions : for the preservation of public telecommunications transport network and public service functions of service providers, to ensure the public telecommunications networks and services in particular; To protect the public telecommunications transport network services and technical integrity; To ensure that other members of the service provider provide services in accordance with the table of contents that one members promise.
In these circumstances above, one member may maintain certain conditions on the access and use of public telecommunications transport network and services[7]：
① limit the share resale or use of the service;
② require the use of specific technical connections, including related documents which connect with the telecommunications transmission network and its services;
③ necessarily, require the applicability of the service and encourage the standardization of international telecommunications services;
④ meet the technical requirements of terminals connected to the telecommunications transmission Internet and other equipment in the corresponding Annex;
⑤ limit private rented or owned transmission lines and telecommunications networks or the lines other service providers lease or own;
⑥ notification, registration and licensing.
6. The obligations of access and use are described in detailed. 7. Certain conditions on the access of everyone member
（５）In accordance with their level of development of developing countries, members may maintain reasonable terms in access and use of public telecommunications transport network and services to strengthen its ability of the domestic telecommunications facilities and services and enhance its participation in international trade in telecommunications services. These conditions should be detailed in its commitment table.
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