WTO체제의 장래적 구제방식에 대한 비판적 고찰: 소급적 구제의 필요성 및 당위성을 중심으로
A Critical Review on the Prospective Remedies of the WTO Regime: Focusing on the Need and Legitimacy of Retrospective Remedies
The WTO legal system is a legal regime which regulates trade relationship between states and is considered to be a branch of international law, especially international economic law. From the perspectives that WTO legal regime is a part of international law, rules and principles of international law seem to have just the same roles as in international law. A principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form, however, has not been known as a rule to be observed in the WTO legal system. Even with the economic reality accompanied by economic damages, a lack of 'retrospective remedies' raises doubts on the availability of effective remedies in the WTO legal system. Seemingly, an awareness that the WTO regime is a self-contained regime influences on the differentiation of the rules to which they are applied. At this juncture, it is crucial to figure out what a self-contained regime is. Is the so-called self-contained regime a special regime that rules out all rules and principles of international law? According to the concept of self-contained regime assumed by the analyses on the PCIJ and ICJ rulings and the definition of it drawn out by the International Law Commission, none of the treaty-regime in existence today is self-contained in the sense that the application of general international law would be generally excluded. On the contrary, the rules of general law supplement the special regime to the extent that no special derogation is provided or can be inferred from the instrument constituting the regime. Furthermore, the commentary on the Article 55 of Draft Articles on Responsibility of States for Internationally Wrongful Acts and Articles of DSU on remedies under the WTO regime do not confine the WTO remedies to those provided by DSU. Rather, facilitating retrospective remedies in the WTO legal system is closely related to an issue of interpretation of silence in the WTO covered treaties which are silent on the application of general international law on remedies. It should be taken note of, however, that a special regime like WTO legal system is a treaty-based legal regime. A special regime, seemingly emancipated from general international law, cannot help relying on rules of general international law in order to ensure the operation of the regime. Discussion on the creation or termination of new regime or on the relationship with other treaty-regimes cannot deviate from the rules on treaties. So does discussion on the consequences of international wrongful acts. This is why the perspectives on the unification of international law are necessary. In this regard, if the silence in the WTO covered treaties is interpreted not as deviation, but as something which needs complement, then the retrospective remedy rules which is the basic rule of reparation in general international law will logically supplement the WTO remedy rules.
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