국제법상 제재(制裁)의 개념과 변천 (The Concept and its Modifications of Sanctions in International Law)

서지정보

· 발행기관 : 국제법평론회
· 수록지 정보 : 국제법평론 / 37호 / 1 ~ 35페이지
· 저자명 : 김부찬

초록

It is generally admitted that the breaches of international law as a kind of coercive order or norm must incur consequences of sanctions like municipal law. "Sanctions" is regarded as an element of legal norms together with "authority" and as a tool of securing implementation of norms or rules under international law. But, there is not yet any instrument or document which authoritatively defines the concept of international sanctions. It is, therefore, possible, or more precisely, necessary to begin with work of defining the concept of sanctions on the basis of general legal science or jurisprudence, because international law is also pertaining to the scope of law in general.
In this perspective, the scope of the concept of sanctions under international law comprises varied types of sanctions such as, "unilateral sanctions," "collective sanctions," and furthermore "invalidation or nullity" and other contents of "responsibility" which are the legal consequences of the internationally wrongful acts. Methods of self-help including "retorsions" and "reprisals"("countermeasures") have still significant roles in a decentralized international society unlike State as centralized society. But, recently, international society has been transformed into a kind of centralized society based on proliferated international organizations and reinforced international law including systematic method of sanctions such as collective "coercive measures" by the UN Security Council("the Council").
"The UN sanctions" by the Council is the most centralized and institutionalized sanctions system under contemporary international law, and is regarded as a typical category of international sanctions in a narrowed sense of the term. The Council, however, is not judicial organ, but executive or enforcement organ of the UN, so it might take into consideration more political concerns rather than legal aspects in the process of decision-making for coercive measures. Many critics argue that the Council has much room for discretion in relation to exercising its sanctions powers, therefore sanctions powers of the Council should be limited on the institutional basis and scrutinized by "judicial review" of the International Court of Justice("ICJ").
Under 「「Draft Articles on Responsibility of States for Internationally Wrongful Acts」」("Draft Articles on Responsibility of States"), "State responsibility" is to be connected with international legal sanctions system based on strong nexus between sanctions and responsibility. In fact, it is not easy thing to include a subject matter of responsibility in a scope of sanctions without establishment of compulsory jurisdiction of international courts including the ICJ. But, in the widest sense of the term, systems of international responsibility and international sanctions could be merged into either of these systems or closely connected each other on the basis of mutually common or overlapped conceptual element and function under international law.
Nowadays, it is very urgent task to promote international law and to reinforce its efficacy for the realization of international legal community and international rule of law. The present is opportune moment to make efficient system for securing compliance with international law including international legal sanctions system. If we admit that it is the mission of the 21st Century's international law to maintain international peace and security, to ensure human rights, and to promote social welfare on world-wide basis, we should strive much more to perform this task through enhancement of international law scholarship and institutional capability.

영어초록

It is generally admitted that the breaches of international law as a kind of coercive order or norm must incur consequences of sanctions like municipal law. "Sanctions" is regarded as an element of legal norms together with "authority" and as a tool of securing implementation of norms or rules under international law. But, there is not yet any instrument or document which authoritatively defines the concept of international sanctions. It is, therefore, possible, or more precisely, necessary to begin with work of defining the concept of sanctions on the basis of general legal science or jurisprudence, because international law is also pertaining to the scope of law in general.
In this perspective, the scope of the concept of sanctions under international law comprises varied types of sanctions such as, "unilateral sanctions," "collective sanctions," and furthermore "invalidation or nullity" and other contents of "responsibility" which are the legal consequences of the internationally wrongful acts. Methods of self-help including "retorsions" and "reprisals"("countermeasures") have still significant roles in a decentralized international society unlike State as centralized society. But, recently, international society has been transformed into a kind of centralized society based on proliferated international organizations and reinforced international law including systematic method of sanctions such as collective "coercive measures" by the UN Security Council("the Council").
"The UN sanctions" by the Council is the most centralized and institutionalized sanctions system under contemporary international law, and is regarded as a typical category of international sanctions in a narrowed sense of the term. The Council, however, is not judicial organ, but executive or enforcement organ of the UN, so it might take into consideration more political concerns rather than legal aspects in the process of decision-making for coercive measures. Many critics argue that the Council has much room for discretion in relation to exercising its sanctions powers, therefore sanctions powers of the Council should be limited on the institutional basis and scrutinized by "judicial review" of the International Court of Justice("ICJ").
Under 「「Draft Articles on Responsibility of States for Internationally Wrongful Acts」」("Draft Articles on Responsibility of States"), "State responsibility" is to be connected with international legal sanctions system based on strong nexus between sanctions and responsibility. In fact, it is not easy thing to include a subject matter of responsibility in a scope of sanctions without establishment of compulsory jurisdiction of international courts including the ICJ. But, in the widest sense of the term, systems of international responsibility and international sanctions could be merged into either of these systems or closely connected each other on the basis of mutually common or overlapped conceptual element and function under international law.
Nowadays, it is very urgent task to promote international law and to reinforce its efficacy for the realization of international legal community and international rule of law. The present is opportune moment to make efficient system for securing compliance with international law including international legal sanctions system. If we admit that it is the mission of the 21st Century's international law to maintain international peace and security, to ensure human rights, and to promote social welfare on world-wide basis, we should strive much more to perform this task through enhancement of international law scholarship and institutional capability.

참고자료

· 없음