WTO SPS･TBT협정상 ‘국제기준’에 관한 연구

This study analyzes the structure and nature of “international standards” as stipulated in both the SPS and TBT Agreements, compares the differences between the two in terms of their standard-setting bodies, legal binding force, and modalities and scope of application. Both agreements aim to harmonize regulations among WTO Members and require that domestic measures be based on or conform to international standards. However, despite the essential differences between the international standards under the two agreements, they are often mistakenly regarded as having similar characteristics and the same legal status. This misconception hampers the accurate interpretation and application of international standards. Accordingly, this study examines the international standards under the two agreements as follows. First, the standard-setting bodies of these international standards differ fundamentally. Under the SPS Agreement, international standards refer to intergovernmental standards established by intergovernmental organizations such as the Codex Alimentarius Commission (CODEX), Office International des Epizooties (OIE), and the International Plant Protection Convention (IPPC)—all “international organizations under international law” composed solely of State actors. In contrast, under the TBT Agreement, international standards are private standards established by non-governmental bodies such as the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC), which are developed by non-State actors. Therefore, the international standards under the SPS and TBT Agreements are essentially different in nature and legal status—intergovernmental and private, respectively—and must be clearly distinguished. Second, differences also exist in the de facto legal binding force of international standards. Although the international standards of both agreements are, in principle, non-binding and function merely as recommendations, this study examines whether such binding force exists in light of recent developments in WTO jurisprudence and international legal scholarship. (i) The international standards under the SPS Agreement are evaluated as possessing de facto legal binding force. ① Recent WTO rulings on Article 3.1 of the SPS Agreement indicate an “interrelationship” between international standards and the Agreement itself, implying that standards originally lacking binding force may acquire de facto legal effect. ② Furthermore, these rulings tend to apply the concept of “based on” in Article 3.1 in the same manner as “conform to” under Article 3.2, by reviewing whether the measure at issue complies with “all relevant elements” of the relevant international standard under Article 3.2. This trend also blurs the distinction between the concepts of “based on” in Article 3.1 and “conform to” in Article 3.2, effectively treating them as equivalent. This development represents a departure from the Appellate Body’s earlier findings in EC-Hormones, indicating a shift toward recognizing such international standards as de facto binding norms within the SPS framework. ③ Furthermore, scholars in international law argue that the codification of international standards in Article 3 of the SPS Agreement within the WTO framework has endowed them with such de facto binding force. (ii) In contrast, the international standards under the TBT Agreement are not regarded as possessing de facto legal binding force at present. This study introduces both supporting and opposing views within international legal scholarship regarding the legal effect of such international standards. However, as WTO jurisprudence has yet to examine the compliance of ISO standards—representative of the “international standards under the TBT Agreement”—with Article 2.4, the issue of their legal binding force remains unresolved. Accordingly, it is difficult at this stage to conclude that those international standards under the TBT Agreement possess de facto binding effect. Third, differences also exist in the modalities and scope of application of international standards. Annex A of the SPS Agreement limits the scope of international standards to those “adopted” by specific international organizations—namely, the CODEX, OIE, and IPPC. In other words, only the standards formally established by these bodies are recognized as international standards, and WTO Members are expected to base their SPS measures on, and conform them to, those standards. In contrast, Article 2.4 of the TBT Agreement covers not only existing international standards but also those under development. Thus, the TBT Agreement allows for the use of both “adopted” and “non-adopted” standards from international bodies into the Members’ domestic TBT measures. However, this difference in the scope of application of international standards under the two agreements is often not fully recognized in practice. Consequently, WTO Members should exercise greater caution when reflecting international standards in their domestic measures in the future. By closely examining the distinctions between the two agreements, this study broadens the understanding of international standards and clarifies their legal status. This is significant as it provides practical guidance for practitioners in navigating and resolving future WTO disputes.