유엔 국제법위원회 “국제관습법의 식별” 제2회독 초안(2018)과 국내문헌 관련 내용 비교분석

Abstract

At its 70th session(2018), the UN International Law Commission(ILC) adopted the entire set of draft conclusions on “Identification of customary international law” on 2nd reading and the commentaries thereto. The Commission submitted the draft conclusions to the UN General Assembly and completed its works. The 2nd reading consists of 16 draft conclusions divided into seven parts. The author considers that some of them need more detailed and critical analysis. This article is divided into five parts including Introduction and Conclusion. The two main bodies, namely Chapter Two and Three deal with the general features of the 2nd reading Conclusions. The Chapter Four discusses in detail about four important legal aspects, namely 1) the contribution of the practice of international organizations to the formation of customary international law, 2) whether and to what extent silence or inaction affects the formation of customary international law, 3) the effect of ILC’s official recognition of “persistent objector rules or doctrines”, finally 4) special customary international law on which the ILC opened up the possibility of the creation of new rules between countries with the same interests along with the development of global networking, such as SNS, as well as the existing theory of the formation of regional customs based on geographic proximity. These above-mentioned four legal aspects or approaches that are adopted by the ILC would have significant impacts on the formation of customary international law in the 21st century. In this regards, it might be necessary and important that the Korean scholars of international law and practitioners should discuss on these points and have a common understanding to enhance the capacity to resolve and respond to any relevant issues of international relations