국제법상 중국의 對韓 사드(THAAD) 경제보복조치의 주요 쟁점과 평가

The decision taken by the government of Republic of Korea (“South Korea”) on 8 July 2016 to deploy the Terminal High Altitude Area Defense(THAAD) system resulted in China’s fierce condemnation and unilateral economic retaliations against a variety of Korean products and services. This article reviews legal issues related to China’s economic retaliations and appraises its legality and legitimacy under international law. This article introduces relevant cases and special features of economic retaliations taken by China since 8 July 2016, and analyzes some legal issues related to economic retaliations under general international law and the World Trade Organization (WTO) Agreement. China’s economic retaliations for the deployment of THAAD cannot be justified as a lawful retortion or reprisal under international law, violates a duty of peaceful settlement of disputes under the United Nations(UN) Charter (Article 2.3), and is not consistent with a duty of non-intervention into domestic affairs under international law. The WTO Agreement does not allow Members to undertake economic retaliations for a political purpose, and China cannot invoke Article XXI(Security Exception) of GATT 1994 or Article XIV bis(Security Exception) of the General Agreement on Trade in Services(GATS) to justify its economic retaliations for THAAD. The WTO Agreement may not be applied to voluntary acts taken by the public or private company. The Panel may review and judge, however, the illegality of measures attributable to the Chinese government if the Chinese government had entrusted or directed public or private entities to undertake economic retaliations for THAAD. For example, the prohibition by Chinese travel agencies of providing tourism and travel related services for the tourists to South Korea belongs to the regulation on cross-border supply (Mode 1) or consumptions abroad (Mode 2) under GATS. Since China has not made any conditions or reservations for Mode 1 and Mode 2 at the tourism and travel related services sector under the ROK-China FTA and GATS, the total restriction on the cross-border supply and consumptions abroad may violate GATS Article II(MFN treatment), Article XVI.1(market access), and Article XVII.1(national treatment). A countermeasure based on international trade rules against China’s unilateral economic retaliations is to bring trade restrictions not consistent with WTO Agreement to the Dispute Settlement Body(DSB) of WTO. For example, the Korean government may bring the prohibition measures by Chinese travel agencies of providing tourism and travel related services for the tourists destined to South Korea to DSB. Before bringing the case to DSB, Korean government and relevant companies should collect properly informations and evidences necessary to prove the entrustment or direction of the Chinese government for trade restrictions taken by the pubic or private entities as a retaliation for the deployment of THAAD.