국제법상 국가의 성립요건 재고찰

• 영문명: Re-examining the Montevideo Criteria for Statehood in International Law - Lessons from Studies of James Crawford and Jure Vidmar -
• 발행기관: 국제법평론회
• 저자명: 이혜영(Lee, Hyeyoung)
• 간행물 정보: 『국제법평론』제49호, 55~95쪽, 전체 41쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.02.28

영문 초록

After World War II, a large number of new states emerged. While there were only about 75 states shortly before World War II, the number of existing states climbed to at least 193 states by 2011. Examining the practices on the emergence of new states after World War II, many have expressed that the traditional criteria of statehood in international law based on the Montevideo Convention adopted in 1933 is no longer viable. Some assert that new states that did not satisfy the Montevideo criteria emerged, while independent-seeking entities that seemingly satisfied all criteria failed to achieve statehood. This article is intended to address this assertion by examining practices on the creation of states after World War II. This article acknowledges commonly shared epistemological premises on the nature of state creation and the concept of statehood among contemporary international lawyers, and examines the viability of the Montevideo criteria despite being adopted nearly 90 years ago. In particular, this article is based on three premises: first, the formation of a new state is a matter governed by international law; second, the creation of states is in principle not left to the recognition of individual states; and third, the generally agreed concept of “state” in international law is not an absolute notion that prohibits other interpretations of the term. Based on these premises, this article examines central arguments on the criteria for statehood of two international scholars, James Crawford and Jure Vidmar, who have both studied the practices of state creations after World War II, using different methodological approaches in providing alternative explanations to address modern practices. While Crawford provided supplementary criteria for statehood that are mainly based on the legal principles of the right of self-determination and the illegality of the use of force, Vidmar attempted to proceduralize the law of statehood by making state-creation a “law-governed political process” in which the principle of democracy played some important roles. By benefiting from outcomes of those scholars’ extensive studies on practices, this article ultimately asserts that the traditional criteria of statehood are still viable in a sense that they are complemented by Crawford’s legal criteria and Vidmar’s law-governed political process.

목차

Ⅰ. 서 론

Ⅱ. 논의의 전제: 국가성 성립에 대한 인식론적 이해

1. 국가의 성립은 사실의 문제인가, 법적 문제인가?

2. 일국의 타국에 대한 승인은 선언적 효과를 가지는가, 창설적 효과를 가지는가?

3. 국가성은 객관적으로 확인 가능한 절대적인 것인가,상호주관적으로 결정되는 상대적인 것인가?

4. 소 결

III. 국가의 성립요건 재고찰: 몬테비데오 협약상 요건의 불완전성과 대안

1. Crawford의 대안

2. Vidmar의 대안

Ⅳ. 평가 및 결론

키워드

국가성 국가의 성립요건 몬테비데오 협약 강행규범 민주주의 Statehood Criteria for Statehood Montevideo Convention James Crawford Jure Vidmar