기후변화상품에 대한 특별대우와 국제통상규범

Economic activities of human beings are destroying global environment and stirring a serious concern. Especially after the industrial revolution,increased use of fossil fuels created global warming. Global warming is now causing not only increase of air temperature and sea level, but also other natural disasters such as flood and draught, changing the whole eco system. Then this change is threatening the survival of human beings. To slow down this climate change, international society worked together and concluded its effort to the Climate Change Convention and Kyoto Protocol. Also, the parties of the convention are now having negotiations to create a new norms for additional reduction of greenhouse gases. Within these processes, each country is planning to enforce some domestic measures for the greenhouse gas reduction. There is a variety of measures which can be taken by countries to reduce greenhouse gases. Among these measures, a traditional method is to reduce emitting carbon dioxide during the process of production or consumption. Also, by distinguishing the products causing a relatively large amount of emission from the others, countries may impose carbon tax on the products in proportion of its carbon emission or prohibit the production, importation, and sale of those products. According to GATT Article I and III, there are non-discrimination rules such as the most-favored nation(MFN) and national treatment(NT)principles which prohibit any discrimination among like products. Thus, if the products causing more carbon emission and the others with less emission can be seen as like products, discriminating these products are not allowed. If these can be seen as different products, some differentiation may be allowed. Following the consistent interpretation of GATT and WTO panel or Appellate Body(AB), the likeness should be decided case-by-case considering each market situation, based on the nature of the products such as physical characteristic, end-uses, and consumer tastes. So discriminating the products due to the difference of producers, production methods, or ways of consumption is a violation of MFN and NT principles. This implies that distinguishing the products by the amount of carbon emission during the process or production and consumption is a violation of non-discrimination rules. Even if a preferential treatment to the less-carbon-emitting products violates GATT provisions, it may be justified by GATT Article XX as a general exception. In the past, panel interpreted this exception provision strictly and narrowly, so it was difficult to justify some preferential treatments. Nowadays WTO panels and AB are having more contextual approach to interpret, so there is more possibility to have the Article XX justification. However, protecting less-carbon-emitting products is still limited with the strict conditions under Article XX. On the other hand, WTO TBT agreement allows the environment protection by technical regulations with the condition of not having any unnecessary limitations on international trade. Thus, each country can have the measures that prohibit the production, importation, and sales of carbon-emitting products by certain technical regulation. TBT agreement includes the regulations not only on the nature of the goods but also on the product-related processes and production methods. Thus, it is possible to differentiate products based on the carbon emission at the consumption and to prohibit the production, importation and sales of more-carbon-emitting products. Of course, these technical regulations must be consistent with TBT agreement. Nevertheless, TBT does not regulated about non-product related processes and production methods, so discriminating products based on the amount of carbon emission at the production is not allowed.