국제법상 “Necessity” — 일반국제법상 위법성 조각 사유로서의 “Necessity”와 국제통상법상 “Necessity test”의 관계 —

This article aims to analyze the meaning of the term“necessity”in different contexts of international law. In particular this article compares the concept of necessity as a circumstance precluding wrongfulness stipulated in article 25 of the ARSIWA with the “necessity test” as one of the general exceptions in article XX of the GATT 1994, and with the one in the U.S.-Argentina BIT. Necessity test in article XX of the GATT 1994 has been chosen because it has some common grounds with one in ARSIWA, for instance, it provides some justifications for domestic measures of a WTO member state. Moreover, some recent decisions from international investment disputes have adopted the standards set by the WTO Appellate Body in interpreting article XI of the U.S.-Argentina BIT, which shows the tendency of the international legal society to seek harmonization and systemic integration. Before focusing on the noticeable trend, however, we have to pay a keen attention to a number of implications that we can get by analyzing similarities and differences of the necessity tests in different and delicate contexts. For this purpose, this article researches various tests regarding necessity. In particular the author concentrates upon whether the necessity test in WTO system requires the condition of the existence of a grave and imminent peril. After thorough research, this article concludes with providing possible implication of necessity tests for the development of international legal theory, using the famous principle in article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties. That is, the international trade agreements can be regarded as “relevant rules of international law”in interpreting investment treaties, promoting “systemic integration”of international law.