자국민의 건강보호를 위한 기술규정 조치의 국제통상법적 쟁점에 관한 소고 : 미국-인도네시아 정향담배 사건을 중심으로

This article focuses on the recent TBT-related case, US-Clove Cigarettes between the USA and Indonesia to determine how main provisions of the TBT Agreement should be read in order to maintain the sensible balance between the rights and obligations of the Member states. Although rules for trade in goods under the GATT have been well-established, it had been uncertain whether a different approach was required for technical regulations, where Member states adopt measures to pursue legitimate regulatory objectives such as health, safety, or environmental protection. Since the objects of two agreements are different, and there is no “obligation- exception” provision under the TBT, its provisions need to be approached differently than those of the GATT. In this sense, regulatory objectives must be taken into account to the extent that they are relevant to the determination of likeness between the products, and of less favourable treatment under the national treatment. When we decide whether technical regulations cause trade restrictions than necessary to fulfill a legitimate objective, we need to compare the extent how much possible alternative measures contribute in the light of the nature of the risks at issue. In addition, ‘reasonable interval’ must be calculated by taking into account of financial and technical factors situated in the Member state rather than by pointing the certain amount of time.