WTO 안보예외조항 연구: WTO 미-중 반도체 분쟁 및 분쟁해결기구(DSB)에 대한 시사점

The security exceptions under the WTO agreements exempt members from treaty obligations when they take certain measures deemed necessary for their essential security interests. For decades, GATT contractual parties and WTO members exercised self-restraint in evoking the security exceptions in dispute resolution proceedings, but recent years have seen a dramatic increase in members’ evocation of the security exceptions during WTO disputes. The United States is among the most prominent advocates of the security exceptions, and has maintained that the exceptions are “self-judging” — i.e., once a member evokes the exception during a WTO dispute, the panel should defer to the member’s judgment and decline to substantively review whether the requirements of the exception were met. This paper reviews recent WTO panel reports concerning the security exceptions and considers the implications of these decisions for the ongoing US-China dispute concerning the US’ semiconductor export control measures, as well as more generally for the WTO regime. All of the WTO panel reports issued thus far have concerned either Article XXI(b)(iii) of GATT or Article 73(b)(iii) of GATT, which are identical. The main interpretative issues in these provisions are (i) whether the security exceptions are self-judging and relatedly, whether WTO panels have jurisdiction over cases in which security exceptions are invoked; (ii) the standard of review applicable to “any action which it considers necessary for the protection of its essential security interests”; and (iii) the standard of review applicable to “taken in time of war or other emergency in international relations.” In four cases, the relevant WTO panel rejected the argument that the security provisions are entirely self-judging and found that WTO panels have jurisdiction to review claims where the security provisions are invoked. In three of these cases, the panel found that all or some of the contested measures did not fall within the scope of the in voked security exception. Based on existing panel rulings, it will likely be difficult for the US to prevail on a GATT Article 21(b)(iii) defense, while the outcome of an Article 21(b)(ii) defense is uncertain. Given the central role of these export controls in the US government’s economic and national security agenda, an adverse panel decision will deepen US dissatisfaction with the WTO dispute resolution system, and may prompt the US to call for an amendment of the security exceptions.