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國際慣習法에 관한 硏究
- 國際慣習法에 관한 硏究
- Other Titles
- (A) Study on Customary International Law with reference to basis of its binding force and the formative process of its creation
- Issue Date
- 대학원 법학과
- 국제관습법; 구속력; 성립요건
- 이화여자대학교 대학원
- 本硏究는 一般國際慣習法의 拘束力의 根據와 그 成立要件에 관한 것이다.
(1) 一般國際慣習法의 拘束力의 根據에 관하여는, 慣習法을 默示的合意로 보는 一部學者들에 의해 默示的 同意에서 求하려는 見解가 무시못할 勢力을 構築해 내려오고 있으나, 默示的으로 行해졌다는 同意라는 것이 특히 慣習法 形成에 參與하지 않은 國家나 新生國과 관련하여 그 虛構性 내지는 限界를 드러내고 있다. 따라서 慣習法 拘束力의 根據는 默示的 同意에 있다고 하는 것에는 法的 擬制 이상의 價値를 賦與할 수 없다고 보았다.
그렇다면 一般慣習法의 拘束力의 根據는 무엇인가? 本硏究에서는 이 問題에 接近해 가는데 있어 一切의 演繹的 方法을 拒否하고, 國際社會라는 독특한 社會秩序의 現實 속에서 歸納的으로 얻어지는 하나의 現象에 依存하고 있다. 즉, 慣習法을 拘束的이게 하는 것은 一貫性있게 持續되는 外觀으로부터 國家一般에게 認知되게 되는 一定 行態에 대한 心理的 拘束感 즉 法的 意識이 된다고 보았다.
(2) 다음으로 위에서 論한 바와 같은 拘束力의 根據를 가질 慣習法規는 어떻게 成立되는가? 이 一般國際慣習法의 成立要件에 관한 考祭은 傳統約 接近方式에 따라 心理的 要素로서의 'opinio juris'와 實質的 要素로서의 '慣行'으로 나누어 展開하였다.
(i) 이 心理的 要素로서의 opinio juris란 法이 아닌 慣習인 政治的 通例나 예양으로부터 法인 慣習을 구별해내는 데에 基本的으로 要求되는 것으로서, 慣習法을 形成시키는 慣行이 同伴하고 있어야 하는 行爲國의 心理的 狀態를 말한다. 그런데 이 opinio juris는 傳統的으로'그것이 法에 의해 要求되고 있다는 法的 確信'으로 解釋되어 왔는 바, 여기에는 '그것이 法이기도 前에 이미 法일 것을 要求하고 있다'는 循環的 非論理가 內包되어 있음이 指摘된다. 이러한 難關에서 빠져 나오려는 勞力은 國際社會에서 어떠한 새로운 法規가 점차로 그 資格을 갖추어 나가는 過程에 대한 現實的 理解에 그 基盤을 두어야 할 것이다. 따라서 慣習法을 形成시키는 慣行이 同伴하여야 할 心理的 要素란 '그것이 장차 法이 될 지도 모른다'는 意識, 즉 一國이 그 行爲에 대해 취하는 '法的 見解'로 새겨야 할 것이다.
이로서 傳統的 解釋의 非論理가 克服되는 동시에 어떠한 慣習이 法이 되도록 保障하는 試金石으로서의 opinio juris의 權威가 그대로 保存될 수 있게 된다.
(ii) 한편 이러한 心理的 要素를 積載한 채 慣習法規를 形成시킬 慣行이란 어떤 것인가?
慣行의 槪念에 관하여, 오로지 物理的 行爲만을 慣行으로 볼 것인가, 그 外에 口頭의 陳述나 主張도·慣行으로 볼 경우, 具體的 現實 狀況에서 行해진 主張 만을 慣行의 槪念에 包含시킬 것인가, 아니면 一般的 用語로 行해진 抽象的 陳述까지도 慣行의 槪念에 包含시킬 것인가에 관하여 學者들의 意見은 심하게 갈리고 있다. 本硏究에서는 慣習法의 큰 强點인 '現實 適用力'의 長點을 保障할 수 있어야 한다는 問題 意識을 갖고, 慣行이란 物理約 行爲 外에 具體的 狀況에서 行해진 主張이나 陳述까지 만을 包含하는 것으로 보았다.
이러한 慣行은 앞에서 論한 慣習法 拘束力의 根據를 마련할 수 있을 정도로 充分히 一般的인 것이 되었을 때 慣習法은 비로소 그 誕生을 보게 된다고 하겠다.
(iii) 이러한 慣習法의 創設過程을 거쳐 成立된 法規는, 그 過程의 初期부터 執拗한 反對를 보여온 國家를 除外하고는, 모든 國家에 대해 拘束力을 갖는 一般國際法規가 된다.
(3) 國際慣習法規는 國際社會의 問題解決에 具體的 基準을 提供해주는 現實適用力 있는 法規이다.;(1) Every legal order regulates for itself the creation of its norms. International law as an independent legal order can be created by custom or by treaties. Between the two sources, this article is concerned about the general customly international law, with particular reference to basis of its binding force and the formative process of its creation. Scholarly views seems to vary far more on custom than on treaties. Through these studies, this article aims to make clear the peculiarity of customary international law as a independent source of international law separated from treaties, on the one hand and, on the other, to reconstruct a sound theory of customary international law in relation to the recent controvercies about new sources of international law in response to strong demand emerging lately on rules of international law.
(2) In concern with the basis of its binding force, not a few supporter of the theory that custom constitutes an implied agreement between States has found the basis of customary international law in 'consent' expressly or tacitly. In relation to States which did not participate in the process of formation, they say that the consent is made in the form of absence of protest, that is acquiescence. And according to them, new States' consent is given to international law as a system rather than to each and every rule contained in it. This is a possible way of preserving the consensualist view in the formation of rules of international law, but it is somewhat artificial. To approach true basis of customary international law, we shall shift away from the largely deductive orientation toward inquiry of the jurisprudence of international law.
At the State-perception level, international law is entirely phenomenological : it does not 'exist' apart from the way representatives of States perceive it. Many State-behaviors which constitute general practice exert, in varying extent, a psychological 'pressure' upon national decision-makers to comply with precedents. While the felt pressure may vary from States to State, probably the decisive factor is whether the rule is in fact accepted by the majority of States as part of the body of international law.
Therefore, we can say that binding force of customary international law depends on the shared belief of majority of States that something is law.
(3) To create a rule of customary law, traditionally two elements have been required: opinio juris as a psychological element and State-practice as a material element ; they have equal weight in importance.
(i) opinoi juris is necessary to distinguish legal custom from other usages, international courtesy and political rule. Its traditional meaning was well summarized by the ICJ in the North Sea Continental Shelf Case, where it said that the acts constituting the practice in question "must also be such, or be carried out in such a way, as to be evidence of belief that this practice is rendered obligatory by the existence of a rule of law requiring it".
But, this traditional view contains a logiest dilemma. It requires that States must believe that something is already law before it can become law. If the practice cannot become law until States follow it in the belief that it is required by law, no practice can ever become law, because this is an impossible condition.
Therefore, it is not surprising that various attempts have been made to reformulate the meaning of opinio juris, in order to escape from the logical dilemma caused by traditional requirement. The most radical attempt to overcome the contradiction, suggested by some writers including Kelsen and Guggenheim is a denial of any need for opinio juris. But just as mentioned about, opinio juris is needed in order to distinguish legal rule from non-legal rule. Therefore, if opinio juris is abandoned, some other criterion for making such distinctions will be needed to take its place, and the other criterion must be something legal.
Here, an attractive theory is suggested by Professors D'Amato and Akehurst with substituting opinio juris the repuirement of articulation (statement). Their position is that the practice of States needs to be accompanied by statements that something is law. It is, of course, possible to find examples of new customary law developing through practice accompanied by assertions of legal right and duty. However, many other instances of customary law have arisen from behaviors consisting of unilateral acts which do not in the earlier stages involve explicit articulation of legal rules.
More realistically, opinio juris seems to be simply the view held by an individual State of its own conduct in relation to law. What required by opinio juris is that the State concerned considers the practice in question necessary is law, not merely as a matter of convenience, or of a legal character and not simply a moral or political one. The view that the custom should be law, accompanied by practice, is sufficient to distinguish the emerging legal rule from the usage, or potential usage, of courtesy or convenience. However, although such a view is sufficient to characterize the custom as a subsequent sufficiently genernal practice coupled with the view. Therefore, it can be said that opinio juris is a psychological element that must be accompanied by each practice constituting general practice, the customary international law. Such a construction was suggested by Thirlway, Walden and Meijers with theoretical merits of reflecting reality in that there must be some qualitative difference between the psychological accompaniment of the first instances of a given practice and that of subseguent repeated instances.
Such a view, although there is no stated view, can be inferred from the fact that a State does act in that way.
(ⅱ) On State-practice as a material element of customary international law, there exists quite wide-range disagreements in doctrine on what types of acts are properly capable of constituting State-practice. Which is the most essential problem in this field. Scholarly views. can be broadly categorized into three groups. The first group including Akehurst and Villiger adopts the most broad concept of State-practice, and then according to this view, resolutions or statements in abstracto, besides claims in the context of some concrete situation and physical act, can constitute the material component of custom. The second definition supported by Thirlway and van Hoof preculudes resolutions or statements in abstracto from the State-practice, including the assertion or repudiation of a claim relating to a particular person, ship, defined area of territory, each of which amounts to a certain apple of discord, in addition to physical acts.
Finally, only phsical acts are counted by the third group little supported by scholar, except for D'Amato, Judges Read and Fitzmaurice.
Upon reflection, according to the first group, it is dangerous to denaturate the practice-oriented character of customary law by making it comprise methods of law-making which are not practice-based at all. This undermines the certainty and clarity which the source of international law provides. And which have been recognized as the best merits of customary international law. On the other hand, the third position can't be justified for denying that status to a unilateral declaration which can sometimes be as binding as a treaty, while regarding treaties as State-practice. Above all, if, like the third group, only physical action can be counted as practice, there would be disastrous consequences for world public order, because a certain practice can only be nullified by contrary phisical acts on the part of States which are aggrieved by the physical acts of other States .
For these reason, it seems to be a reasonable view that State-practice as the material element in the formation of custom is, "material", it is worth emphasizing. The substance of the practice required is that States have done, or abstained from doing, certain things in the international field: e.g., practices consists of acts which are material or concrete in the sense that they are intended to have an immediate effect on the legal relationships of the State concerned. Therefore, the second group's view would seem to be the best position.
When such a practice becomes a general one, there exist a customary international law. It is the question of generality that a practice must have before it can amount to a customary international law. Elements of consistency and duration (repetition) must be present in some degree for generality, because they are involved in the very notion of custom. But the actual extort to which they may be required in a particular instance may vary according to the nature of the case.
As to consistency, everyone seems to agree that a small amount of inconsistency does not prevent the establishment of customary rules : consistency of practice required is satisfied with a substantial, virtual not absolute, and complete one.
As far as the duration of practice which is very much bound by the requirement of repetition concerned, it is generally recognized that this requirement is of more or less flexibility? As interaction of States has increased, the time needed to establish a new rule is to a startling degree shortened. In a word, customary law nowadays developes very rapidly due to dramatically improved possibilities of communication in the world. The distingished examples of this pheomenon can be found in the system of continental shelf and the freedom of movement into outer space.
(ⅲ) When a custom satisfying these above-mentioned conditions, a general rule of international law is created. Once a rule of customary law has been established, it is, subject to one exception, binding on all States including not only the State whose practice supports a rule of customary law but also the State whose practice neither supports nor rejects a rule of customary law.
The one exception can be taken out of the ICJ judgment in the Anglo-Norwegian Fisheries Case, which has rejected the so-called ten-mile rule for bays : "In any event, the ‥‥ rule would appear to be inapplicable as against Norway, in as much as she has always opposed any attempt to apply it to the Norwegian coast". This judgment ensures the following view : a State which, while the custom is in process of formation, unambiguously and persistently registers its objection to the practice as law, can release from its binding force.
(4) We can induce the concrete and actual criterion from international custom for the solution of problems aring from international relation.
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