이중용도 물품 수출통제에 관한 국제통상법적 고찰 - GATT 제21조(b)(ii)의 해석 및 적용을 중심으로-

As the effectiveness of the international export control regime is increasingly being questioned, the issue of export controls on dual-use goods has become a central concern for the international community, particularly with the advancement of cutting-edge science and technology. The ongoing US-China tech rivalry has led the United States to continuously revise its Export Administration Regulations (EAR) to expand the scope of export controls. Furthermore, following Russia's invasion of Ukraine, the ideological confrontation between Western and socialist countries has intensified, prompting major countries such as the United States and the EU to deepen their efforts in strategic goods export controls through unilateral measures or by forming bilateral and multilateral consultation groups. The Wassenaar Arrangement is a representative example of the international community's commitment to controlling exports of dual-use items. However, the Wassenaar Arrangement only imposes obligations on member states to exchange information and consult, leaving the implementation as a “sovereign authority” of individual member states. Additionally, it retains a ‘soft law’ nature, making it difficult to argue that an obligatory regime exists under international law for enforcing dual-use goods export controls. On the other hand, international legal norms that restrict export controls can be identified in the principles of GATT, which forms the foundation of the WTO regime. In particular, GATT Article XI, which prohibits quantitative restrictions, applies to dual-use goods export controls, which can only be justified if they meet the conditions for exceptions. In this paper, the issue of export controls on dual-use items is examined from the perspective of international trade law, focusing on the security exceptions clause. Until recently, discussions surrounding the security exceptions clause have primarily revolved around the self-judging nature of the provision and the application of GATT Article XXI(b)(ⅲ). However, this paper focuses on the interpretation and application of GATT Article XXI(b)(ii), a provision that has not been specifically examined within the GATT and WTO systems, to address the issue of dual-use goods export controls. As the international export control regime falters and unilateral export control measures by major powers like the United States on dual-use goods expand, this paper aims to lay the groundwork for establishing judicial control mechanisms concerning dual-use goods export controls.