WMD 군축․비확산조약 위반과 국제법상 대응조치 (The Violation of WMD Disarmament and Non-Proliferation Treaties and Countermeasures in International Law)

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초록

This article examines three issues arising in the context of taking countermeasures in international law in response to violations of WMD disarmament and non-proliferation treaties.
The first issue concerns the entitlement to take countermeasures in response to violations of WMD disarmament and non-proliferation treaties. According to Articles 42(b)(ii) and 49 of the Articles on Responsibility of States for Internationally Wrongful Acts(ARSIWA), if a State breaches the obligation owed to a group of States, or the international community as a whole, and the breach of the obligation is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation, all the other States should be considered as injured thereby and as entitled to resort to countermeasures. In other words, the ARSIWA establishes a special category of interdependent obligations in the context of collective obligations, permitting broad decentralized responses to violations of such obligations. A strict interpretation of the ARSIWA suggests that core substantive obligations, such as the obligation not to develop, produce, acquire, retain, possess, use, receive, or transfer WMD, and the obligation to destroy WMD, fall within the category of interdependent obligations.
The second issue concerns the violation of interdependent obligations under WMD disarmament and non-proliferation treaties and the problem of reciprocal countermeasures. The State taking countermeasures may take measures suspending performance of obligations that correspond to, or are directly connected with, the obligations that were breached, which are called reciprocal countermeasures, or may take measures suspending performance of other international obligations owed to the responsible state. Under the ARSIWA, the fact that the obligations that were breached is interdependent does not, by itself, preclude reciprocal countermeasures. However, a State party taking reciprocal countermeasures in response to violations of interdependent obligations under WMD disarmament and non-proliferation treaties must bear responsibility to the other State parties, excluding the responsible state, for violating treaty obligations, and it itself becomes subject to countermeasures.
The third issue concerns the scope of permissible countermeasures in response to violations of interdependent obligations under WMD disarmament and non-proliferation treaties. Countermeasures in response to such violations are likely to consist of measures suspending performance of international obligations owed to the responsible state in other areas. In practice, major states have primarily imposed various economic measures in cases of violations of WMD disarmament and non-proliferation treaties. In this case, according to Article 50 of the ARSIWA, which stipulates that countermeasures shall not affect obligations for the protection of fundamental human rights, countermeasures should be carefully designed and implemented to ensure that they do not hinder or nullify the enjoyment of economic, social, and cultural rights by the population of the responsible state. Moreover, in the proportionality assessment in this context, greater emphasis is placed on qualitative factors such as the importance of the interest protected by the rule infringed and the seriousness of the breach, rather than on quantitative element of the injury suffered, which suggests that caution should be exercised to prevent the excessive expansion of the scope of countermeasures.

영어초록

This article examines three issues arising in the context of taking countermeasures in international law in response to violations of WMD disarmament and non-proliferation treaties.
The first issue concerns the entitlement to take countermeasures in response to violations of WMD disarmament and non-proliferation treaties. According to Articles 42(b)(ii) and 49 of the Articles on Responsibility of States for Internationally Wrongful Acts(ARSIWA), if a State breaches the obligation owed to a group of States, or the international community as a whole, and the breach of the obligation is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation, all the other States should be considered as injured thereby and as entitled to resort to countermeasures. In other words, the ARSIWA establishes a special category of interdependent obligations in the context of collective obligations, permitting broad decentralized responses to violations of such obligations. A strict interpretation of the ARSIWA suggests that core substantive obligations, such as the obligation not to develop, produce, acquire, retain, possess, use, receive, or transfer WMD, and the obligation to destroy WMD, fall within the category of interdependent obligations.
The second issue concerns the violation of interdependent obligations under WMD disarmament and non-proliferation treaties and the problem of reciprocal countermeasures. The State taking countermeasures may take measures suspending performance of obligations that correspond to, or are directly connected with, the obligations that were breached, which are called reciprocal countermeasures, or may take measures suspending performance of other international obligations owed to the responsible state. Under the ARSIWA, the fact that the obligations that were breached is interdependent does not, by itself, preclude reciprocal countermeasures. However, a State party taking reciprocal countermeasures in response to violations of interdependent obligations under WMD disarmament and non-proliferation treaties must bear responsibility to the other State parties, excluding the responsible state, for violating treaty obligations, and it itself becomes subject to countermeasures.
The third issue concerns the scope of permissible countermeasures in response to violations of interdependent obligations under WMD disarmament and non-proliferation treaties. Countermeasures in response to such violations are likely to consist of measures suspending performance of international obligations owed to the responsible state in other areas. In practice, major states have primarily imposed various economic measures in cases of violations of WMD disarmament and non-proliferation treaties. In this case, according to Article 50 of the ARSIWA, which stipulates that countermeasures shall not affect obligations for the protection of fundamental human rights, countermeasures should be carefully designed and implemented to ensure that they do not hinder or nullify the enjoyment of economic, social, and cultural rights by the population of the responsible state. Moreover, in the proportionality assessment in this context, greater emphasis is placed on qualitative factors such as the importance of the interest protected by the rule infringed and the seriousness of the breach, rather than on quantitative element of the injury suffered, which suggests that caution should be exercised to prevent the excessive expansion of the scope of countermeasures.

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