국가의 일방적인 환경보호관련 조치의 정당화 요건 -GATT 제XX조 두문(Chapeau)의 해석과 적용을 중심으로- = Can the WTO Member States justify the unilateral domestic measures for protecting the environment under the WTO Law? - How to interpret and apply the Chapeau of GATT Article XX -

다국어 초록 (Multilingual Abstract)

The WTO Member States have the sovereign right to take measures for protecting its national environment. However, it must not serve as a trade barrier. If so, the measure should be justified under the requirements of GATT XX, which provides the general exceptions. The provision has the two-tiered system. To justify a particular measure, it should meet the requirements of paragraphs (b) or/and (g), covering necessary measures to protect human, animal or plant life or health and relating to the conservation of exhaustible natural resources. Then, that measure should satisfy the requirements of its Chapeau. The Chapeau provides that a measure should not be a means of arbitrary or unjustifiable discrimination or disguised restriction on international trade. Appellate Body emphasized that the Chapeau should be interpreted in the contextual perspective of the measure and related policies. It is applied not to the intention of the measure but to execution of the measure. It, therefore, functions as a means of preventing the Member States from abusing such right. On the other hand, there is no agreed standard to apply the chapeau. It means that judgments can be varied based on contexts of cases. Thus, it is important to analyze WTO jurisprudence to acknowledge the trend of interpretation. According to WTO jurisprudence, the measure should be transparent and flexible as applied and a Member State is required to have multilateral negotiations with other Member States before taking a measure. Also such measure includes the goal relating to protecting the environment. This study can suggest the guidelines for the Member States to take unilateral measures and avoid disputes over their own measures.

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