GATT 제XX조 일반적 예외의 해석상 한계와 지역무역협정의 대안적 접근

This paper examines whether Article XX of the GATT effectively functions as a mechanism to protect legitimate domestic regulatory objectives within the WTO framework. Article XX allows member states to adopt trade-restrictive measures for various public policy goals, such as public morals, public health, and the conservation of natural resources. It is regarded as a legal device to balance the core principles of trade liberalization with the regulatory autonomy of sovereign states. However, according to a number of WTO dispute settlement cases, even when the substantive requirements of the individual subparagraphs of Article XX are satisfied, many measures fail to be justified due to overly stringent or ambiguous interpretations of the requirements of the chapeau—namely, the prohibition of arbitrary or unjustifiable discrimination and disguised restrictions on international trade. Such interpretative practices have led to functional limitations of Article XX and have raised significant concerns about its efficacy in safeguarding regulatory space. In response to these limitations, this study explores the alternative legal mechanisms employed in recently concluded regional trade agreements (RTAs). These include self-judging clauses, reservation lists, and side letters, which have been increasingly used to secure domestic regulatory authority. These mechanisms serve as practical tools to address the gaps found in the GATT framework. The paper argues that restoring the functionality of Article XX requires clearer and more consistent interpretative standards, particularly with respect to the chapeau. Drawing on recent developments in RTAs, the study highlights the need for institutional reform within the multilateral trade regime to ensure the balance between ‘trade liberalization’ and ‘the member’s right to regulate’.