국제재판소의 ILC 국가책임조항 인용에 관한 연구 (References to the ILC’s Articles on State Responsibility in International Courts and Tribunals)

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초록

In 2001 the UN International Law Commission (ILC) adopted the Draft Articles on Responsibility of States for International Wrongful Acts. The UN General Assembly welcomed the conclusion of the work of the ILC on this subject and annexed the text of the Articles to its resolution. Since that time, the General Assembly has discussed development of the Articles into a convention or other appropriate form, but the final decision on that future form has been postponed for almost 20 years. Meanwhile, it is hard to confirm the exact normative status of the Articles. They can be viewed as the draft for a convention on State responsibility, but do not constitute a treaty concluded by States in their current form. Moreover, not all provisions in the Articles can be regarded as reflecting customary law. While the Articles are not a legally binding instrument categorized as a formal source of law, they are nevertheless frequently referred to and quoted in decisions of international courts and tribunals. The question thus arises of what these bodies assume the Articles to represent when they refer them to their decisions. Furthermore, what can be learned from the accumulation of decisions quoting the Articles? The purpose of this paper is to examine the frequency and characteristics of references to and citations of the ILC Articles on State Responsibility in international courts, tribunals, and other bodies since 2001, and to examine the meaning of these accumulating references in terms of identification and establishment of customary international law. To this end, the paper first looks at the statistics on references to the Articles. Next, it examines how individual provisions are referred to in major precedents and the characteristics of such references. Based on these discussions, the paper contemplates the normative status of the Articles, and the significance of this status, from the perspective of customary international law. The accumulation of decisions referencing the Articles would ultimately lead to confirmation of their normative status, and furthermore would develop the normative status of specific provisions where there is not sufficient state practice.

영어초록

In 2001 the UN International Law Commission (ILC) adopted the Draft Articles on Responsibility of States for International Wrongful Acts. The UN General Assembly welcomed the conclusion of the work of the ILC on this subject and annexed the text of the Articles to its resolution. Since that time, the General Assembly has discussed development of the Articles into a convention or other appropriate form, but the final decision on that future form has been postponed for almost 20 years. Meanwhile, it is hard to confirm the exact normative status of the Articles. They can be viewed as the draft for a convention on State responsibility, but do not constitute a treaty concluded by States in their current form. Moreover, not all provisions in the Articles can be regarded as reflecting customary law. While the Articles are not a legally binding instrument categorized as a formal source of law, they are nevertheless frequently referred to and quoted in decisions of international courts and tribunals. The question thus arises of what these bodies assume the Articles to represent when they refer them to their decisions. Furthermore, what can be learned from the accumulation of decisions quoting the Articles? The purpose of this paper is to examine the frequency and characteristics of references to and citations of the ILC Articles on State Responsibility in international courts, tribunals, and other bodies since 2001, and to examine the meaning of these accumulating references in terms of identification and establishment of customary international law. To this end, the paper first looks at the statistics on references to the Articles. Next, it examines how individual provisions are referred to in major precedents and the characteristics of such references. Based on these discussions, the paper contemplates the normative status of the Articles, and the significance of this status, from the perspective of customary international law. The accumulation of decisions referencing the Articles would ultimately lead to confirmation of their normative status, and furthermore would develop the normative status of specific provisions where there is not sufficient state practice.

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