Looks Great Outside, but Maybe Not So Grandeur Inside: Challenges Faced By Permanent International Tribunals

서지정보

· 발행기관 : 전남대학교 법학연구소
· 수록지 정보 : 법학논총 / 34권 / 2호 / 469 ~ 489페이지
· 저자명 : 문기석

초록

Since the outset of the 20th Century, the international community has witnessedthe development of a wide variety of the so-called international tribunals. Thesepermanent international tribunals have been established with high ambitions, albeitutopian in nature, that mandatory and binding adjudication of disputes betweencountries would ensure world peace and stability.
The international tribunals so far established with such desires and expectationshave made significant have made significant contributions to the development ofinternational customary law, and the international community continues to havehigh hopes for these institutions, as evidenced by the fact that there are newtribunals being established throughout the world. However, despite the high hopesand expectations, most of these permanent, independent international tribunals havebeen criticized for their inefficacy. Statistics show that their use has never beensignificant, that states are not consenting to the jurisdiction of these tribunals, orwithdrawing from the jurisdiction, and that their judgments have been sufferingunsatisfactory compliances.
This Article first examines the emergence and the proliferation of such tribunals.
It will also discuss the structure of the International Court of Justice as arepresentative of these tribunals, by providing a general overview over the same.
After that, it would point out that such tribunals have not lived up to theexpectations and that they would continue to frustrate our expectations, because oftheir inherent limitations.
There are many reasons why these tribunals are not free from the criticism basedon such statistics, but this paper focuses on the lack of enforcement mechanisms as one of the reasons, as the repeated defiance of such judgments causes a corrosiveeffect on these tribunals. It will eventually send a signal to states that they shouldnot resort to these tribunals with their disputes if they want a result that can beactually implemented.
It is therefore necessary for the international community to introduce meaningfuland workable enforcement mechanisms to these tribunals. As for the ICJ, thereshould be serious future discussions as to how to clarify the relationship betweenthe Article 94(2) powers and the Security Council’s general powers to take measuresin case of a threat to peace. As for other tribunals, the operators and thesupporters of them should consider, inter alia, introducing an enforcementmechanism similar to that contemplated in Article 39 of the ITLOS. The authorhopes that there will be continuing discussions throughout the world to empowerthese tribunals so that they can exercise meaningful effects on states’ futurebehavior.

참고자료

· 없음