안보예외에서의 정보제공 거부 조항(GATT XXI(a))의 기원과 진화에 대하여

Today, national security issues have become one of the predominant key-words across various domains. This is also true in the area of international trade. Since the 2019 Russia-Traffic in Transit case, the security exceptions under Article 21 of the GATT have triggered significant legal debates. Among them, this paper examines how the provision on the refusal of furnishing information under Article 21(a) of the GATT was introduced and how it has evolved in regional trade agreements and digital trade agreements. The provision on the refusal of furnishing information under Article 21 of the GATT retains the spirit of the Havana Charter, which sought to establish the International Trade Organization (ITO). After World War II, the United States advocated for the creation of an international organization to regulate global trade, and through this organization, it sought to include not only trade but also issues related to competition law. This objective was integrated through a chapter on Restrictive Business Practices, which imposed an obligation to provide information requested by the International Trade Organization for the purpose of regulating international cartels. In exceptional circumstance involving national security, however, it allowed for the withholding of the disclosure of confidential information. This illustrates how serious the Organization was about regulating international competition. While it applied only to specific exceptions related to competition, it shifted to a security exception and has remained in place to this day. Since the inception of the WTO, no cases have directly challenged the provision on the refusal of furnishing information under Article 21 of the GATT. However, in numerous regional trade agreements, including those signed by the United States, there are expressions on the refusal of allowing access to information, thereby strengthening the security exception. This phenomenon is also observable in digital trade agreements. With the advent of the digital economy, which places an emphasis on the flow of data, including personal information, the concept of ‘information’ has evolved from its original meaning in the 1947 GATT. The provision on information is no longer just part of a transparency obligation but has come to mean something more. The provision in Article 21(a) of the GATT is no longer becoming obsolete but is rather undergoing a process of evolution. This transformation reflects not only a shift in the legal framework but also the broader changes we experience in an increasingly digital world.