중국 고체폐기물 수입금지조치의 WTO GATT 합치성에 관한 연구

As of January 1, 2021, the global waste management market has undergone a major change. As the amendment to Annexes entered into force, which was adopted by the Conference of the Parties to the “Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal” on the work of its 14th meeting in 2019, the movement of whole plastic waste was restricted. China, which has been the largest import State of solid waste for a long time in the world, has implemented a complete ban on the import of all solid waste through the revision of the “Solid Waste Environmental Pollution Prevention and Control Law” (hereinafter ‘Solid Waste Act’). China's Solid Waste Act and subsequent measures prohibiting the import of solid waste were designed to protect the ecological environment, ensure the health of the peoples, and further promote sustainable development of the economic society. However, it is unclear whether China's measures are allowed under the “World Trade Organization” (hereinafter ‘WTO’) system which ensures the international free trade order. It appears to have violated Article XI:1 of the “General Agreement on Tariffs and Trade” (hereinafter ‘GATT’), prima facie, which prohibits quantitative restrictions on imports. However, the violation of GATT Article XI:1 obligation can be justified if GATT Article XX paragraphs (b) or (g), which are the general exceptions related to the environment, is applied. This study aims to examine whether China's ban on imports of solid waste for the purpose of environmental protection is consistent with GATT provisions. The results of the review are as follows. 1) If China's measures are proved to be for the purpose of ‘protecting human, animal, or plant life or health’ and a ‘necessary’ measure to achieve its policy objectives, they meet the requirements of GATT Article XX(b). 2) GATT Article XX(g) can be applied if China proves that the measures were ‘related to’ the ‘conservation of exhaustible natural resources’ and they are ‘in conjunction with restrictions on domestic production or consumption.’ 3) In both cases, however, it must be proved that the measures by China of its import ban on solid waste were not applied in a manner which constitutes a means of ‘arbitrary or unjustifiable discrimination’ or a ‘disguised restriction on international trade’ pursuant to the chapeau of GATT Article XX. In order for China's measures to be in harmony with trade and environment within the WTO system through GATT consistency, it is necessary to review the application of less trade-restrictive alternative measures than the complete ban on imports of solid waste. Also, it is necessary to consider the direction of change in waste import management policies and the feasibility of sustainable society with States that will be affected by the measures.