국제법의 가치지향적 연구방법에 대한 일고찰

This paper is aiming at analyzing the current crisis of international law and presenting how to overcome this problem by revitalizing certain value-oriented approaches to international law. Why many states tend to ignore the normative force of international law when their own national interests are at stake in dealing with international disputes. There may be several reasons for this lack of confidence toward international law. First. recent trend of fragmentation in international law may be a salient example to weaken the normative force of international law in general. Plural regional courts or special tribunals apply the same rule of international law differently though they deal with identical cases. Second, sceptical approaches to international law by international lawyers and scholars concerning the normative nature of international law may bring detrimental effects to the building block of international law. Game theory or rational choice theory recently reinforces these sceptical understanding of international law. In order to overcome the fall of confidence in international law, this paper attempts to reinvigorate an alternative approach by examining several contemporary value-oriented approaches to international law. Our focal lenses are on these: Hersh Lauterpacht's emphasis on natural law, reason and human rights; Myres McDougal's policy-oriented approach to international law which has emphasized power, control, authoritative decision-making process; Thomas Franck's analysis on the legitimacy deficit and justice deficit in international law; Harold Koh's new transnational law process which focuses on value and process in order to enhance the compliance with international law. Through value-oriented approaches to international law we may deepen our understanding of the roots of compliance-pull of international law. Theoretically basic values in law along with legal process should be reexamined to ameliorate the behavior of states to comply with international law. Structurally constitutionalization of international law may be a new solution to averse the current trend of fragmentation of international law. Here it is worthwhile participating in recent debates for the introduction of hierarchical order in international law, consolidation of adjudicatory function in main judicial body, as well as the crucial agenda for reforming of UN system.