한국의 화학물질 등록 및 평가 등에 관한 법률(안)의 WTO협정 합치성

Abstract

In 2011, Department of Environment submitted a bill called “Hwapyung-Bup” or “Korean REACH” which aims at a comprehensive control system of chemical through registration. It seems likely that Hwapyng-Bup would be upheld under the requirements on the TBT Agreement and the national treatment provision of GATT Article III. However, if it were determined that the Korean REACH was not the least-restrictive means of determining the risks associated with chemicals used in Korea, then the regulation may be found to conflict with the TBT Agreement. Nonetheless, the program should be upheld under the GATT Article XX exception for regulations aimed at protecting human health. The DSB has used a three-part analysis under Article XX. First, the purpose of the policy must fall within one of the recognized legitimate objectives. Second, the measure be “necessary” to fulfill the stated objective. Third. the measures may not violate requirements of the chapeau of Article XX. The chapeau prohibits the application of any measure that would constitute either arbitrary or unjustifiable discrimination or a disguised restriction on international trade. First, the purpose of the regulation is to protect health by ending exposure to chemicals that pose potential risks, and in order to realize this goal it is essential that the Korea is provided with data with which it can assess the risks associated with chemical use. Second, the REACH requirements apply equally to all manufacturers and importers. Third, in any condition, the Hwapyung-Bup falls under the recognized exception of GATT XX(b) and did not violated a requirement of chapeau.