WTO 무역구제조치의 개선 방안 －비례 원칙을 중심으로－ = Improving the WTO Trade Remedies －Focusing on the Principle of Proportionality－

다국어 초록 (Multilingual Abstract)

The Trump administration has declared to impose a series of increased tariff rates on automobiles, steel and aluminum from its trading partners. This motion to increase tariffs is based on the so-called ‘America First Trade Policy’ proclaimed by President D. J. Trump. In line with this, it is expected that there would be fundamental changes in the international trade regime maintained by the World Trade Organization for the last 80 years. In response to the changes in the trade environment, the Korean government shall modify its trade policies to trading partners such as the United States and China, and promote its responses to a series of unilateral trade restrictions. Against this background, this paper would examine theoretical bases of the WTO trade remedies and suggest options to improve trade remedies, in the light of the self-help concept in public international law.
The self-help in public international law is a concept which reflects the fundamental limitation of the international law system: that is the lack of law-enforcement organs in the system. There are various sub-concepts under the term of the self-help, such as the armed reprisal, self-defence, countermeasures against internationally wrongful acts and responses to serious breaches of treaties. However, the common principle that have been applied to self-help measures in public international is the principle of proportionality. This principle requires that the response by the injured states shall be proportional to the injury suffered. The principle of proportionality has been confirmed by the international courts and tribunals, and was then adopted in Article 51 of the Articles on Responsibility of States for Internationally Wrongful Acts by the International Law Commission.
On the other hand, the WTO trade remedies are legitimate measures that can be adopted by the WTO members which have suffered injuries in their domestic industries as a result of dumping, or provision of subsidies of trading partners. However, trade remedies are currently being criticized, in that they are applied with a view to protect domestic industries or to sanction competing industries of exporting countries. In this regard, this paper examines relevant provisions in the WTO Anti-dumping Agreement and WTO Agreement on Subsidies and Countervailing Measures. The current WTO agreements have failed to prevent the possible abuse of trade remedies by importing countries having an intent to protect their domestic industries. It is mainly because the WTO agreements only provide the outer-limit of trade remedies without limiting the discretion of investigating authorities of importing countries. To improve the current limitations of trade remedy rules of the WTO agreements, this paper submits that it is necessary to adopt the principle of proportionality as limitations of the self-help measures in public international law.