현대 국제관습법의 형성과정에서 나타난 변화와 안정성 - 국제기구의 결의에 기초한 국제관습법의 형성문제를 중심으로

초록

There are some conflicting issues in the theory of current Customary International Law(hereinafter, "CIL") concerning the legal evaluation on resolutions of international organizations. Especially there are confrontations over the contribution of resolutions of international organizations on the formation of CIL, if any, through what kind of procedures. Therefore, this article was aimed to analysize the formation of CIL based on resolutions of international organizations. For the purpose, this article reviews whether resolutions of international organizations is considered to be the evidence of custom-making State practice and, if any, what kinds of normativity threshold is required for the formation of CIL. Firstly, it is recently inclined to expand the concept of State practice as substratum of international custom. Accordingly, custom-making State practice consists of not only State"s actual activities, but also declarations or statements of States which show stance of the States. Therefore, resolutions of international organizations are regarded as the evidence of State practice representing attitude of the States and would contribute to the formation of CIL. As a result of this trend, current CIL could emerge from resolutions adopted by purposeful, intentional and collective interactions among States. Secondly, according to the Nicaragua case of the I.C.J. and some awards of arbitration on nationalization, a set of criteria for the formation of CIL based on resolutions can be found as follows : the resolution must be normative ; there must be general support to the resolution by States ; there must be a series of resolutions containing the same content as well as State practice out of the resolution. Judging from these criteria, it is not so likely that CIL is found by only resolution. The reason is that besides the normative characteristic of the resolution and the general support to it by States, there must be additional State practice other than the resolution itself. In conclusion, one of the basic characteristics in the current formation of CIL is that CIL can be established relatively fast in order to meet the request of the changing international society and international law by the use of the various forms of state practice and the widespread participation in it by states. Above all, there is a high possibility that CILs emerge from resolutions. Nevertheless, CIL cannot be automatically formed by States" consensus for a resolution. Theorefore, it comes to a conclusion that although the current formation of CIL is distinguishable from traditional one, CIL still remains "customary."

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