WTO 검역법에서의 과학과 인권

• 영문명: Science and Human Rights in the WTO SPS Law: The Case of BSE Health Requirement for USA Beef in Korea
• 발행기관: 조선대학교 법학연구원
• 저자명: 송기호(Song, Ki-Ho)
• 간행물 정보: 『법학논총』제15권 제2호, 439~454쪽, 전체 16쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.10.30

영문 초록

There has been a huge controversy and people's massive protest against the ESE health requirement for USA beef import in Korea, Nevertheless of the people's objection, Korean government has justified its ESE quarantine protocol with USA by the name of the WTO law and OlE guideline, This process and event raise an important legal issue to Korean people and international Public law, Under the international human rights conventions and Korean constitution, Korean people should have enjoyed their basic human rights including health right, participation right, and self-determination for their happiness, However, according to the Korean government, the infringements to these human rights may be justified by the WTO law, Legally, is the WTO law sole and exclusive origin of justification in the regime of the international Public law? Korean government has an international duty to respect and comfort to international human rights law as well as WTO law, There is no legal ground that WTO law is superior to international human rights law, Further, there is no evidence that the decision process of ESE health requirement is the exclusive area of WTO law, The international human rights law shall be applied to such process, In order to reach the harmonization between 9'S(Agreement on the Application of Sanitary and Phytosanitary Measures, "SPS") law and international human rights law, it needs to interpret the WTO SPS law more flexibly, The beneficial step is to restructure the concept of the risk, As Foster (2008) argues, in the area of scientific uncertainty like the ESE, the gratitude of the risk presented by people needs to be incorporated to the risk concept, This contributes to the WTO SPS law's sensitivity to the people's health rights and participation rights, Secondly, the concept of risk management in the OlE standard needs to be actively considered in interpretation of the WTO 9'S law, Although WTO 9'S law has not explicit provisions for the term of risk management, there are articles which cover the concept of risk management, For example, 'the acceptable level of risk' clause in the WTO SPS law indicates the concept, So, the factors including people's diet culture, national characteristics and the economic conditions of the related domestic industry shall be considered in the process of risk management, Thirdly, in the area of scientific uncertainty, the precautionary principle recognized by the Convention on Biological Diversity needs to be incorporated to the WTO SPS law. As far as the Korean government's USA beef BSE guideline, it lacks both the accuracy and flexibility in the application of the WTO SPS law. The government has started its own risk assessment process to the BOE import risk of the USA beef, ani produced its own guideline. However, its final conclusion is only the copy of the OlE BSE guideline that is far from its own findings of risk assessment. Generally, risk assessment in the WTO SPS law is required only when the government tries to set up the more protective guideline that is higher than OlE standard. Nevertheless, Koran government abandoned the result of the risk assessment without any scientific explanation. The official excuse of Korean government is that it failed to persuade USA. Furthermore, in the process of the risk management, the government has not considered such factors as economic results and the diet characteristics of the Korean people. Unexpectedly, the reason of the government choice of the OlE standards is the Korea-USA Free Trade Agreement. This unjustified process has no room for considering the human rights ani precautionary principle. Furthermore the government failed to comply with the risk communication rule. People were not timely informed of the necessary ani true information on the BSE risk and the contents of the quarantine guideline. The matter of setting quarantine guideline is deeply related to the human rights as well as trade interests.

목차

I. WTO 법은 닫힌 규범인가?

II. WTO 법의 규범조화적 해석

III. WTO 검역법에서의 과학

IV. 미국산 쇠고기 검역에서의 과학과 인권

키워드

health rights WTO SPS Agreement risk assessment risk management OlE Korea-US FTA