국제기구의 법인격과 그 권한에 대한 이론적 고찰
A Theoretical Study on the Legal personality and the Power of the nternational Organizations
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Abstract
An international organization is an entity with an international membership, mission, or presence and distince will. International organizations as a broad meaning are classified into two main categories: 1) International nongovernmental organizations (INGOs), 2) Intergovernmental organizations (IGOs). Usually the main study concerning the legal subjects is focused on the Intergovernmental organizations as this thesis does. The public international organizations are normally created by a treaty or conventions to which states are parties and the members of the organizations so created are generally states. In the late nineteenth and early twentieth century, it was customary for international scholars to claim that states and states alone, could independently bear legal rights and obligations under international law. Other entities were not to be considered as legal subjects or, at best, were analysed in state-centric terms: as gatherings of states, or as derogations from statehood. However, nowadays, International organizations are generally counted among the subjects of international law, together with sovereign states, individuals and some other entities as well. There are good reasons, mainly practical reasons, why the concept of legal personality is useful for the law of international organizations. Without legal personality an organization would not be able to appear in its own right in legal proceedings, whether at the international or non-international level. Therefore, third party can contend that when an international organization endowed with international legal personality commits an international wrongful act, the organization is to be held legal responsible as well, even though the act would have constituted a violation of its member states' obligations if committed by them. From this point of view, this article first reviews the general attribution of international organizations and examines the reasoning for admitting the legal personality of international organizations, as an improvement including an epoch-making steps for comprehension of international institution. For this purpose, this article briefly reviews the legal personality of UN through the case of ICJ decision of 1949, and concludes that international organization which has its own "distinct will" regardless of its membership states has its own legal personality. Futhermore, by revisiting the ICJ advisory decision of 1949, this article looks around the discussion of the legal personality of the European Union. Futhermore on account of the legal status of the international organizations reviewing in this article, it is classically contended that when an international organization endowed with international legal personality commits an international wrongful act, the organization is to be held exclusively or jointly with member states responsible even though the act would have constituted a violation of its member states' obligations if committed by them. After this, this article also reviews the foundations of powers of international organizations, first the doctrine of attributed powers, second the doctrine of implied powers and the doctrine of inherent powers. In conclusion, it must be emphasized that, while is it generally recognized that international organizations and individuals can be viewed as a subjects of international law, not all individuals enjoy the exact same bundle of rights and obligations. Similarly, not all organizations possess identical amounts of rights and obligations as a legal subject in the dynamic global world.
참고문헌 (35)
- 김대순, "국제법론" (2008), 三英社
- 박재영, "유엔과 국제기구" (2007), 법문사
- 성재호, "국제기구와 국제법" (2006), 한울 아카데미
- 이한기, "國際法講義" (2006), 박영사
- 김정건, "국제법 주요 판례집(Major Cases in International Law)" (2006), 연세대학교 출판부
- Jan Klabbers, "An Introduction to International Institutional Law" (2005), Cambridge University Press
- C. F. Amerasinghe, "Principles of the Institutional Law of International Organizations" (2005), Cambridge University Press
- Mangone, "A Short History of International Organizations" (1954), McGraw-Hill Book Company, Inc.
- Patrick, Stewart, "'Failed' States and Global Security: Empirical Questions and Policy Dilemmas". International Studies Review" (2007), Blackwell Publishing
- G. R. Berridge, "Diplomacy: Theory and Practice", ~ (1995)
- Schermers, "International Institutional Law", Martinus Nijhoff Publishers
- Mark W. Janis, "INTERNATIONAL LAW cases and commentary", pp.2006, Thomson
- Nigel D. White, "The Law of International Organizations", Manchester, ~ (1996)
- David J. Bederman, "The Souls of International Organization: Legal Personality and the Lighthouse at Cape Spartel", 36 VaJIL, 275~377 (1996)
- Finn Seyersted, "Treaty-making Capacity of Intergovernmental Organizations:Article 6 of the International Law Commission's Draft Articles on the law of Treaties between States and International Organizations or between ternational Organizations", Copenhagen, ~ (1983)
- Finn Seyersted, "Objective International Personality of Intergovernmental Organizations: Do their Capacities Really Depend on the Conventions Establishing them?", Copenhagen, ~ (1963)
- Geoffrey Marston, "The Personality of International Organizations in English Law", 2 Hofstra Law & Policy Symposium (1997)
- GENERAL LUNDSTROM GIVES EYEWITNESS ACCOUNT OF BERNADOTTE'S DEATH, "UNITED NATIONS Department of Public Information", Press and Publications Bureau (Press Release PAL, 1948
- Reparation for Injuries Suffered in the Service of the United Nations,advisory opinion, , ~, pp.ICJ Reports 174 (1949)
- South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa)preliminary objections, , ~, pp.ICJ Reports, 319.8. ICJ Reports 12 (1988)
- House of Lords Judgment of 21, "House of Lords Judgment of 21.2.91: Arab Monetary Fund (Appellants) v.Hashim and Others (Respondents), Arab Law Quarterly", BRILL, 6(1) (1991), Arab Monetary Fund(Appellants)v.Hashim and Others(Respondents),Arab Law Quarterly,BRILL,Volume 6,Number 1
- "UN Council for Namibia in municipal law (UNJY(1982), The Institute de Droit International (UNJY 1976)", ~
- Jean D'Aspremont, "Abuse of the Legal Personality of International Organizations and the Responsibility of Member States", International Organizations Law Review, 4 (2007)
- Bruno de Witte, "Sovereignty and European Integration: The Weight of Tradition" (1998), The European Court &National Courts: Doctrine and Jurisprudence
- "Permanent Court of International Justice Advisory Opinion № 16,Interpretation of the Greco-Turkish Agreement of December 1st", Final Protocol, Article IV, ~ (1928)
- "Publications of the Permanent Court of International Justice Series B - No.16. Collection of Advisory Opinions", A.W. Sijthoff’s Publishing Company,Leyden, ~
- Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, , ~, pp.ICJ Reports 47 (1954)
- "Finn Seyersted, Objective International Personality of International Organizations: Do Their Capacities Really Depend upon the Conventions Establishing Them?", Copenhagen, ~ (1963)
- Philippe Gautier, "The International Tribunal for the Law of the Sea:Activities in 2002", Chinese Journal of International Law, 2(1) (2003), Oxford University Press
- Philippe Gautier, "The Reparation for injuries Cases Revisited: The Personality of the European Union", Max Planck Yearbook of United Nations Law,, ~ (2000)
- J. Klabbers, "Presumptive Personality:The European Union in International Law", ~ (1988)