GATT 협정 내에서의 환경보호 관련 무역규제 조치에 대한 소고; 공정 및 생산방법(PPMs) 규제를 중심으로

Processes and Production Methods (PPMs)―related policy measures are designed for preventing environmental degradation caused by production processes. It is widely recognized that ultimate goal of environment protection cannot be achieved without avoiding environmental degradation at all stages in the life-cycle of products. Nevertheless, the relationship between WTO rules, The General Agreement on Tariffs and Trade (GATT) in particular, and trade-restrictive measures based on PPMs has caused much debate. It is because certain production externalities do not affect the product characteristics itself and may be referred to as non-product-related PPMs requirement. As PPM requirements can be designed in different ways, PPM-based measure can be used as non-tariff barrier, and therefore, The World Trade Organization (WTO) is unwilling to accept its consistency with GATT rules despite of its important roles in promoting sustainable development. Traditionally, the PPM-based measures restricting trade has been considered as a violation of Article XI of the GATT rather than Article III unless they have been justified under Article XX of the GATT. In this article, I argued that PPMs-based measures objectively related to actual non-protectionist goals are indeed consistent with Article III provided that the standard of consumer’s tastes and habits and regulatory purpose in determining ‘like products’ have been fully appreciated. According to Note Ad Article III provides that internal regulatory measures imposed at the point or time of importation are still covered by Article III if the measures are applied to both domestic and imported products. In addition, the way the products are processed or produced indeed affects the price of the products and its quantity sold in a given market. Lately, there has been an increasing preference for environment friendly products among consumers, and it may play a significant role in determining whether products are “like” in a sense that the competitive relationship between products in the marketplace is decided by consumers. Accordingly, consumers have come to view themselves as purchasing not only products, but also shares of responsibility in protecting environment. It should be noted that as Appellate Body in EC-Asbestos held, risk posed by the product is clearly important in assessing different product’s physical characteristics as well. In addition, determination of regulatory purpose is not that much difficult because it can be inferred from design, architecture and structure of its provisions. Indeed, consideration of regulatory purpose is consistent with general principle of Article III, anti-protectionism, that is addressed in Article III:1. Therefore, non-protectionist PPMs requirements from important environmental policy purposes should not be significantly constrained by WTO law.