국제사회에서 국제공동체로: 국제법 규범 질서의 질적 변화에 주목하며

The United Nations’ sanctions against the regime of Moammar Kaddafi in Libya and its eventual breakup clearly illustrate that the maintenance of an illegitimate dictatorship that systematically violates human rights is no longer justifiable behind the banner of state sovereignty. The dramatic denouement in Libya also eloquently shows that the establishment of democratic order as well as the effective protection of human rights within a sovereign state amount to global problems beyond the scope of domestic matters. This article primarily attempts to interpret the changing nature of the international normative order with special reference to the end of the Cold War era as a time of change from an ‘international society’ to that of an ‘international community’. It is evident that the concept of ‘international society’, based on the absolute respect of state sovereignty, has for the purpose of international legal order lost much of its persuasiveness as an explanatory device to explain the nature of the international normative structure. Rather, the concept of an ‘international community’, with special emphasis on democratic forms of government and the protection of human rights at the domestic level, appears to be more appropriate when considering the nature of the contemporary international normative order. The development and deepening of international normative structural change towards an ‘international community’, however, does not mean that the concept of ‘international society’ in international law is absolutely dead. Instead it would be more correct to say that the contemporary international legal order may be understood as that of a coexistence of an ‘international society’ and an ‘international community’, where the features of the latter increasingly prevail. For the purpose of examining the changing international normative order that is moving in the direction of an ‘international community’ in which democratic forms of government and the protection of human rights are essentially required, this article focuses on the international normative emphasis on the importance of the guarantee of democratic practices based on the effective protection of human rights at the domestic level and the emerging constitutionalizational phenomenon of the international legal order. In this regard, it should be noted that the essence of the constitutionalization of the international legal order should be understood as the constitutionalizational phenomenon of ‘global governance’ rather than the pursuit of a single, world-centralized government. However, what is striking is that some patterns of associations of states may be identified in the international sphere with the emergence and development of the ‘international community’ since the end of the Cold War era, that is, a group of states belonging to the ‘international society’ vis-à-vis another group of states belonging to the ‘international community’. As a consequence of the development of these patterns of groupings or associations of states and the resulting ‘qualitative’ differences between such groupings of states, a sort of normative hierarchical status of each state becomes evident. States belonging to the ‘international community’ may enjoy international legitimacy and normative primacy with the proper enjoyment of state sovereignty over the states merely belonging to the ‘international society’, whose exercise of state sovereignty may be limited and qualified as illustrated by the recent case of Libya. In conclusion, the development towards an ‘international community’ indicates that the international order is evolving in a direction which is basically aimed at protecting human rights and guaranteeing democratic political institutions within states. This type of structural change to the international normative order would be obviously desirable for the cause of international justice.