FTA 노동조항의 "무역 또는 투자에 영향을 주는 방식으로" 요건의 의미와 역할: 연계의 목적에 충실한 해석의 탐색

This article critically analyzes the decision and legal reasoning of the panel regarding the labour chapter dispute under the Dominican Republic―Central America Free Trade Agreement (CAFTA-DR) between the United States and Guatemala, by comparing it with the treaty interpretation rules under the Vienna Convention on the Law of Treaties. It also seeks to draw implications for the structure of labour provisions in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). After examining the theoretical rationales that justify the trade-labour linkage, this article explores labour provisions in free trade agreements that can be seen as having legally endorsed some of these theoretical grounds, with the aim of identifying the object and purpose of such treaties. Based on this preliminary argument, the article advances the core claim that at least some current labour provisions (e.g. those in the CPTPP) possess a dual structure. It argues that individual clauses imposing substantive obligations within the labour chapter pursue two distinct objectives, and that the conditions and effects of a breach differ depending on which objective is implicated. The first purpose is the protection of labour rights as human rights (the social goal), and the second is the securing of fair competition conditions in trade and investment, preventing a “race to the bottom” through the lowering of labour standards (the economic goal). This perspective represents an interpretive effort to equally and substantively achieve the social objectives ― the normative values pursued by labour provisions ― while also respecting and pursuing their economic goals of establishing a level playing field in trade. Moreover, this approach is increasingly necessary in the current context, where international trade is often perceived as a zero-sum game and protectionist policies are being competitively implemented.