국제법상 연성법의 재인식
Rethinking Soft Law in International Law
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Since last half of the 20th century, soft law has emerged from regulating newly faced international issues including human rights, environment, and trade. The concept of soft law has been broadly recognized today and will be much more utilized in future. Unfortunately, however, it has not established a unified concept. Commentators have used the term differently. Therefore this article seeks to make an outline of the concept, status and role of the soft law. This article examines the concept of soft law. Although the use of the term is diverged, there is common characteristic in its usage. Basically, documents classified as soft law don't pertain to hard law, which is made up of the norms creating precise legal rights and obligations. Although they legally have no binding force, there are at least good faith commitments. Also, there are law-making will, parties' intension affecting state practices, and elements for progressive developments in many cases. As a consequence of legal implication, soft law documents have become alternatives to treaties, and complemented implementation of already concluded treaties, and have provided its own mechanism for soft enforcement. This interaction between hard law and soft law has made soft law documents with certain status in international legal system and some effect on international affairs, and, as de facto effect, has altered behaviors of their addressees. In conclusion, soft law documents are not a source of law in the sense of Article 38 para. 1 of the Statute of the International Court of Justice. Soft law should be regarded as a conceptual tool. Therefore, a further research on soft law should elaborate the normative value of non-binding instruments in detail and make a systemaitc analysis of these instruments.
Abstract
Since last half of the 20th century, soft law has emerged from regulating newly faced international issues including human rights, environment, and trade. The concept of soft law has been broadly recognized today and will be much more utilized in future. Unfortunately, however, it has not established a unified concept. Commentators have used the term differently. Therefore this article seeks to make an outline of the concept, status and role of the soft law. This article examines the concept of soft law. Although the use of the term is diverged, there is common characteristic in its usage. Basically, documents classified as soft law don't pertain to hard law, which is made up of the norms creating precise legal rights and obligations. Although they legally have no binding force, there are at least good faith commitments. Also, there are law-making will, parties' intension affecting state practices, and elements for progressive developments in many cases. As a consequence of legal implication, soft law documents have become alternatives to treaties, and complemented implementation of already concluded treaties, and have provided its own mechanism for soft enforcement. This interaction between hard law and soft law has made soft law documents with certain status in international legal system and some effect on international affairs, and, as de facto effect, has altered behaviors of their addressees. In conclusion, soft law documents are not a source of law in the sense of Article 38 para. 1 of the Statute of the International Court of Justice. Soft law should be regarded as a conceptual tool. Therefore, a further research on soft law should elaborate the normative value of non-binding instruments in detail and make a systemaitc analysis of these instruments.
참고문헌 (28)
- 김석현, "국제법에 있어서 Soft Law", 국제법평론, (8) (1997)
- 문규석, "국제환경법의 법원: Soft Law를 중심으로", 외법논집, 2 (1995)
- 이재곤, "국제환경법에 있어서의 “소프트 로”(soft law)", 법학연구, 8(1) (1997)
- 전순신, "국제법에 있어서 Soft Law", 동아논총, 35 (1998)
- 鄭京洙, "현대 국제관습법의 형성과정에서 나타난 변화와 안정성- 국제기구의 결의에 기초한 국제관습법의 형성문제를 중심으로", 국제법학회논총, 47(3), pp.8~190 (2002), 대한국제법학회
- Alan Boyle, "The Making of International Law" (2007), Oxford Univ. Press
- Allison Christians, "Hard Law Soft Law and International Taxation", Wis. Int’'l L.J, 25 (2008)
- Andrew T. Guzman, "International Common Law: The Soft Law of International Tribunals", Chi. J. Int'l L, 9 (2009)
- Anna Di Robilant, "Genealogies of Soft law", Am. J. Comp. L, 54 (2006)
- C. M. Chinkin, "The Challenge of Soft Law: Development and Change in International Law", Int'l & Comp. L. Q, 38 (1989)
- Cynthia A. Williams, "Civil Society Initiatives and Soft Law in the Oil and Gas Industry", N.Y.U. J. Int’'l. L. & Pol, 36 (2004)
- Daniel Thürer, "Soft Law", Encyclopedia of Public International Law, Ⅳ (2000)
- F. Sloan, "General Assembly Resolutions Revited", British Year Book of International Law, 58 (1987)
- Hartmut Hillgenberg, "A Fresh Look at Soft Law", European Journal of International Law, 10 (1999)
- Henry Deeb Gabriel, "The Advantages of Soft Law in International Commercial Law: The Role of Unidroit, Uncitral, and the Hague Conference", Brook. J. Int'l L, 34 (2009)
- Jonas Anderson, "The War on Terrorist Financing: Collateral Damage from a Hard-nosed Soft Law", Rev. Jur. U.P.R, 78 (2009)
- K. Skubiszewski, "The Elaboration of General Multilateral Conventions and of Non-Contractual Instruments Having a Normative Function or Objective", Institut de Droit International Annuaire, 61-I (1985)
- Kent Anderson, "Testing the Model Soft Law Approach to International Harmonization: A Case-Study Examing the UNCITRAL Model Law on Cross-Border Insolvency", Aust. YBIL, 23 (2004)
- Kevin T Jackson, "Global Corporate Governance: Soft Law and Reputational Accountability", Brook. J. Int'l L, 35 (2010)
- Mauro Barelli, "Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples", International and Comparative Law Quarterly, 58(4) (2009)
- Prosper Weil, "Towards Relative Normativity in International Law", Am. J. Int'l L, 77 (1983)
- R. R. Baxter, "International Law in "Her Infinite Variety", Int'l & Comp. L. Q, 29 (1980)
- Richard L. Williamson, "Hard Law, Soft Law, and Non-Law in Multilateral Arms Control: Some Compliance Hypothesis", Chi. J. Int’'l L, 4 (2003)
- Roger Blanpain, "The Globalisation of Labour Standards: The Soft Law Track", Tilburg L. Rev, 14 (2008)
- Setsuko Aoki, "International Legal Cooperation to Combat Communicable Diseases: Increasing Importance of Soft Law Framework", Asian J. WTO & Int’'l Health L & Policy, 1 (2006)
- Timothy Meyer, "Soft Law as Delegation", Fordham Int'l L.J, 32 (2008)
- Ralph G. Steinhardt, "Soft Law, Hard Markets: Comparative Self-Interest and the Emergence of Human Rights Responsibilities for Multinational Corporations", Brook. J. Int’'l L., 33 (2007)
- Walter Kälin, "Hardening Soft Law: Implementation of the Guiding Principles on Internal Displacement", Am. Soc’'y Int’'l L. Proc, 102 (2008)