권고적 의견 상 국제인 개념이 다국적 기업의 국제법상 지위에 갖는 함의 (Implications of the Concept of International Person in ICJ’s Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations on the Sat면 of Multinational Corporations)

서지정보

· 발행기관 : 영남대학교 법학연구소
· 수록지 정보 : 영남법학 / 36호 / 113 ~ 131페이지
· 저자명 : 안태희

초록

ICJ`s Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations has been one of only a few authoritative international instruments containing the process through which the status of international person or subject of international law is conferred, while there has been no concrete legal system officially rendering the status to each international actors. Many criticisms ICJ has faced, nonetheless, on the circularity it was alleged to have used in elucidating the process, seem to be due to the critics` overlooking of the difference between the two concepts of international person and the subject of international law ICJ implied. Unlike ICJ treated the two concepts as distinct ones, those who have criticized the logic as circular appear to have mistakenly considered ICJ as having treated the two as the same concept. In the meantime, generalizing the process by applying it to all the international actors other than international organizations, of which approach has been taken by many scholars, is misleading as well. The inductive approach ICJ took in regard to the status of international personality, in the sense that certain legal consequences follow once the status is given, doesn`t reflect the unique feature of international legal system. Differing from domestic legal systems, decentralized international legal system allows certain rules of specific legal areas to be grown into general rules by the deductive way of codification. Moreover, the inductive approach seems to ignore the reality of international legal system where various international actors other than states and international organizations, such as multinational corporations (MNCs) enjoy numbers of international rights and obligations, even the capacity to bring international claims. Better approach is to acknowledge the international actors as international persons or subjects of international law corresponding to the international rights and obligations they are granted

영어초록

ICJ`s Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations has been one of only a few authoritative international instruments containing the process through which the status of international person or subject of international law is conferred, while there has been no concrete legal system officially rendering the status to each international actors. Many criticisms ICJ has faced, nonetheless, on the circularity it was alleged to have used in elucidating the process, seem to be due to the critics` overlooking of the difference between the two concepts of international person and the subject of international law ICJ implied. Unlike ICJ treated the two concepts as distinct ones, those who have criticized the logic as circular appear to have mistakenly considered ICJ as having treated the two as the same concept. In the meantime, generalizing the process by applying it to all the international actors other than international organizations, of which approach has been taken by many scholars, is misleading as well. The inductive approach ICJ took in regard to the status of international personality, in the sense that certain legal consequences follow once the status is given, doesn`t reflect the unique feature of international legal system. Differing from domestic legal systems, decentralized international legal system allows certain rules of specific legal areas to be grown into general rules by the deductive way of codification. Moreover, the inductive approach seems to ignore the reality of international legal system where various international actors other than states and international organizations, such as multinational corporations (MNCs) enjoy numbers of international rights and obligations, even the capacity to bring international claims. Better approach is to acknowledge the international actors as international persons or subjects of international law corresponding to the international rights and obligations they are granted

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