EC-Biotech 사건에 대한 소고 -WTO 패널의 법해석의 협소함에 주목하며-

The Panel report of the EC-Biotech Case, GMO dispute before the WTO, contains many noteworthy findings. The most extraordinary and potentially far-reaching are those regarding the scope of the SPS Agreement. The Panel report of the case has vividly illustrated that its interpretation of international treaties can be problematic in the process of judicial review in the WTO dispute settlement mechanism. What is critically important point is that the Panel has ignored the external sources of public international law beyond narrowly or strictly defined WTO law or has consciously avoided possible applicability of relevant international rules and principles of treaty interpretation in reviewing the case. The Panel found that the SPS Agreement extends to trade-restrictive measures addressed to a range of health and environmental risks, even where those risks only indirectly relate to the introduction of pests into a Member’s territory. The Panel could not escape the criticism that it has not taken into account the normative importance of multilateral environmental agreements, which have remarkably developed since the entry into force of most of the WTO agreements. This negative approach of the Panel to the possible applicability of non-WTO sources of international law in reviewing trade disputes (or GMO disputes) could contribute to deepening of crisis of external legitimacy of the WTO. Granted that international trade law can be in conflict with international environmental law in respect of normative considerations, employing teleological interpretation of relevant international treaties on the basis of integrative and organic methods beyond narrowly or strictly defined WTO agreements in reviewing GMO disputes would be beneficial to mutual supportiveness of international trade law and international environmental law. This approach would also eventually contribute to upgrading external and internal legitimacy of the WTO, as an international organization. The Panel has expanded the scope of the SPS Agreement by employing the ‘constrained’ interpretation of relevant provisions, which is only confined to literal understanding of the SPS Agreement devoid of social and cultural considerations. More concretely, the Panel has limited the scope of the risk management under Article 5.1 and approached the requirements of Article 5.7 narrowly. This is even more serious in that the normative status of precautionary principle, as a critical principle under international environmental law, may be devalued in reviewing GMO disputes. The Panel did not consider the significance of the development of international environmental law, such as Biosafety Protocol which has institutionalized the precautionary principle. The consequences of the Panel’s strict and narrow construction of the WTO law illustrated in EC-Biotech Case would be serious in the overall structure of contemporary international law, as it will be likely to facilitate the fragmentation of international law.