미국 해양포유류보호법에 따른 수산물 수입제한 조치의 WTO 합치성에 관한 연구

The United States, through the Marine Mammal Protection Act (MMPA), prohibits the harassment, hunting, and capture of marine mammals. By 2026, fish and fish products harvested by fisheries that fail to obtain the comparability finding under the MMPA will be completely banned from export to the U.S. The import restriction under the MMPA distinguishes fish and fish products based on the processes and production methods(PPMs) by which it is harvested, which could potentially serve as an unnecessary trade barrier. Therefore, it is essential to examine whether the MMPA’s import restrictions are consistent with the agreements of the World Trade Organization (WTO). Currently, in WTO jurisprudence, import restrictions based only on Non-Product-Related PPMs are generally considered within the scope of Article XI of the GATT, and these are not classified as technical regulations under TBT Agreement. However, in recent years, WTO members have increasingly adopted environmental protection measures, including trade restrictions based on Non-Product-Related PPMs. This evolving trend suggests that traditional interpretations may have limitations in striking an appropriate balance between the legitimate values of free trade and environmental protection. In this context, this paper argues that the MMPA’s import restriction measures could also be examined under GATT Article III as well as GATT XI and, more importantly, proposes a new interpretative approach regarding the definition of technical regulations. This study suggests that there is a possibility for MMPA measures to be classified as technical regulations under the TBT Agreement. Through this analysis, the paper further examines whether the U.S. MMPA measures align with both the GATT and TBT Agreements.