貿易-環境 紛爭에서의 事前配慮原則의 適用 可能性에 관한 硏究

Abstract

The precautionary principle is defined as the principle that the precautionary measures should be applied where there are reasonable threats of serious or irreversible environmental risk involved in scientific uncertainty. It is generally called as a fundamental principle of environmental law. How is it applied in real practice? In particular, is it applied in environment-related trade disputes? If so, how is it applied? Analyzing these questions and exploring the solutions to environment-related trade disputes entangled in scientific uncertainty are at the core of this paper. The EC-Biotech case is related to the risk to the environment and human health resulting from GMOs. It is certain that the Issue of GMOs is the type of controversy in which one would expect the precautionary principle to be applied, because the level of scientific uncertainty is very high, and the potential, suspected harms are serious. From this point of view, it is required to analyze the EC-Biotech case. I study how the precautionary principle is being applied in environment- related trade disputes, through analyzing the case. In order to achieve the goal of this paper, it is necessary to answer the following questions, prior to analyzing the EC-Biotech case. What is precautionary principle in the international environmental law? How has the WTO treated precautionary principle in the SPS disputes? How has EC's treatment of the precautionary principle changed? As a result of analyzing the EC-Biotech case, it is thought that the panel reduced the applicability of precautionary principle in many aspects. The panel extended the scope of the SPS Agreement to cover environmental measures. This implies that the applicability of precautionary principle may be reduced in the field of environmental law. Furthermore, the panel placed the principle strictly in the domain of risk management, limited the scope of "risk assessment" under Article 5.1, and interpreted the requirements of Article 5.7 narrowly. This implies that the applicability of precautionary principle may be reduced in the scope of the SPS Agreement. Also, the panel avoided examining the legal status of the principle, and didn't take into consideration Biosafety Protocol institutionalizing the principle. From these considerations, I show how precautionary principle shall be applied in the environment-related trade disputes. First, it is required to interpret the scope of application of the SPS Agreement prudently. The application of the SPS Agreement should depend on whether the type of risk with which the measure in question intends to deal can be covered with the types of risk which are listed in the definition of a SPS measure or not. This approach is supported by the purport and negotiating history of the SPS Agreement, and conforms to the conception of "mutual supportiveness" between international environmental law and international trade law. If a measure is judged as a SPS measure through this approach, it will be open to the application of a weak version of precautionary principle incorporated in Article 5.7. It should not be allowed to interpret that scientific evidence is "insufficient" within the meaning of Article 5.7 only if it does allow the performance of an assessment of risks, as the EC-Biotech panel. The panel's interpretation is inconsistent with the purport of Articles 5.1 and 5.7, and may make it impossible to protect the public adequately against the complex and potential health risk. I consider that a SPS measure shall be based on a risk assessment only if the risk assessment can be considered as adequate in view of the nation's circumstance and that where scientific evidences are not sufficient enough to perform an adequate risk assessment, the nation is allowed to take precautionary measures provisionally. This interpretation makes it possible to protect environment and human health adequately, and is consistent with the mutual supportiveness between international environmental law and international economic law.