‘체계적 통합’을 위한 조약의 해석과 ‘공통된 이해’

There have been continuous debate on the interpretation of Article 31:3(c) of Vienna Convention on the Law of Treaties. However, to resolve the issue of “fragmentation of international law”, the treaty interpretation based on the ‘systemic integration’ would be desirable. According to this theory of ‘systemic integration’, even if not all the parties of the treaty being interpreted have participated in the other treaty, this treaty can be considered together with the context of the treaty being interpreted. The qualification to be a ‘relevant rule of international law’ is to contain the ‘common understanding’ of the parties. Here, the concept of ‘common understanding’ is to clarify the context of the treaty provision. It can be seen as the intermediate norm which is being developed to become a customary international law, a kind of so-called ‘soft law’. Since the word ‘relevant rules of international law’ in Article 31:3(c) can be interpreted widely to include not only the substantive binding international law such as a treaty or custom but also a norm contained in a soft law, this definition of ‘common understanding’ is consistent with the structure of this article. The progressive concept of ‘common understanding’ would take a key role to make the ‘systemic integration’ which will prevent further fragmentation of international law.