브라질-재생타이어 수입제한조치 사건

The Brazil-Measures Affecting Imports of Retreaded Tyres ("Brazil-Tyres") case relates primarily to the question of whether brazilian import ban on retreaded tyres to protect human health and environment can be justified under GATT Article XX(b). The Panel and Appellate Body in this case have thoroughly examined the meaning and application of "necessity" of Article XX(b) and chapeau requirement, based on the relevant previous WTO jurisprudence. This study is to provide a useful summery of those decisions made by the Panel and Appellate Body and to assess legal implications on the legality of human health and environment measures under the free trade rules of GATT and WTO. In sum, with respect to measures to protect human health and environment, the Appellate Body of the Brazil-Tyres case broadly allows the right of member countries to adopt appropriate public policy in the Article XX(b) necessity test, while it did not allow for the measure to be applied in a discriminatory manner by strictly applying the chapeau requirement. In other words, since the measure relates to an important policy objective such as the protection of human life and health, a member country may pursue the reduction of risks to the maximum extent possible and choose a powerful non-generation measure like import ban without requiring a rigid cost-benefit analysis. However, when the measure is applied in a manner that would be relatively advantageous to domestic industry or a limited number of countries. it cannot be justified under GATT Article XX. The relationship between human health and environment policy and free trade rules seems to be more contentious relating to the recent movements of member countries to cope with climate change issue. For instance, the proposed American Clean Energy and Security Act of the United States contains a set of border measure provisions which cause serious debates on the legality under the WTO rules. The Brazil-Tyre case can be a useful guideline on such debate.