국제통상규범상 안보 예외에 관한 연구

A Study on Security Exception in International Trade Law

Recently, unilateral trade restrictive measures taken with the reason of national security are increasingly important issues. In particular, through competition for technological hegemony led by the 4th Industrial Revolution, the COVID-19 crisis and so forth, the perception of security has gone beyond traditional concept of security such as military threats. The concept of security has been expanded to human security or comprehensive security including non-military and non-human threats like the economic crisis, cyber threats, diseases and climate change. Thus, the security exceptions under Article XXI of the GATT should be subject to scrutiny than at any time since 1947. However, it is difficult to interpret Article XXI of the GATT as the Article contains self-judging language that a Member State can invoke whenever it considers a measure to be necessary for the protection of its essential security interests. In addition, since there have not been many WTO cases regarding security exceptions, it can not be said that the principles of WTO law have been sufficiently accumulated. Therefore, the author s doctoral thesis aimed at filling large gaps in interpreting Article XXI of the GATT and rigidly judging according to certain criteria. It also pursued improvement suggestions and further tasks for evolutive interpretation and application of Article XXI of the GATT. To this end, the thesis investigated the origin of the concept of security and the process of its being expanded in the historical and theoretical context. It also examined how to specifically protect security interests in international law. States can protect their essential security interests under many international agreements such as the UN Charter, FCN(Friendship, Commerce and Navigation) treaties, bilateral investment treaties, free trade agreements, digital trade agreements and necessity in customary international law, so the thesis scrutinized these norms. Moreover, it analyzed case law on security exceptions. In particular, it identified legal principles related with self-judging security exception, jurisdiction, essential security interests, necessity test, necessity defense in jurisprudence of the International Court of Justice and International Centre for Settlement of Investment Disputes. The next thing, it dealt with concrete interpretation and application of Article XXI of the GATT as the representative of security exception provisions. Above all, it specifically analyzed the origin and requirements of Article XXI of the GATT. Then, it navigated how Article XXI of the GATT has been interpreted in the disputes raised in the GATT/WTO regimes. Especially, considering that the case where the Article XXI of the GATT was analyzed exhaustively for the first time on the dispute between Ukraine and Russia in 2019, this study reviewed the panel report minutely. Furthermore, it also looked briefly pending cases in the WTO focusing on the factual details and future prospects on them. Based on such discussions, it suggested future projects to strike a balance between trade liberalization and security interests. First of all, it offered some ideas on how Article XXI of the GATT can be revised, and while raising the problems related with security exceptions in free trade agreements and digital trade agreements, emphasized that it is necessary to search for ways to harmoniously interpret WTO rules. In light of the recent five years when Article XXI of the GATT has been frequently invoked, in the end, the following efforts are required in addition to establishing strict and specific standards for Article XXI of the GATT. Most of all, it should be recognized that WTO has made a significant contribution to work to guarantee a rule-based international trading system as a bastion of free trade. So, based on this, from the perception of security in the liberal perspective on international relations,