국제법의 본질과 조약 해석에 관한 소고: 해석주의 법철학을 중심으로

This article is concerned with the problems of the nature of international law and treaty interpretation from the perspective of interpretivism, developed by the great liberal legal philosopher, Ronald Dworkin, who died in 2013. Dworkin’s posthumously published article “A New Philosophy for International Law” has triggered diverse controversies about the plausibility of his interpretivist approach with regard to the nature of international law. Interpretivism based on political liberalism requires us to go beyond legal positivism and natural law theories with respect to the nature of international law. Interprevisim denies any metaphysical assumption of the existence of law and morality. It attacks any kinds of distinction between morality and law in order to understand the concept of law in a society, because such distinctions will make a coherent understanding of law very difficult. Rather, interpretivism accepts law as a part of political morality and all values, including politics, humanity, justice and others are intertwined and incorporated into a broadly defined general morality in a society, which is eventually about how human beings should live meaningfully and happily in a political community. Unity of value is also the core of interpretivism and a political community in the name of a statehood and its constitutive members are all interconnected though moral obligations and rights. These kinds of moral states comprise an international community. Undoubtedly, legal positivism and natural law theories have been dominant theoretical trends for the understanding of the nature of international law. However, it is also true that these two schools of thought have contributed to an incomplete and inconsistent understanding of international law. In this regard, interpretivism shows us the possibility of overcoming such intellectual limitations caused by legal positivism and natural law theories, thereby broadening the academic horizon for proper understanding of international law. Interpretivism tends to establish and develop the objectivity of value historically through the continuing process of providing potentially best arguments and rebuttals, with the goal of justifying the values of relevant law practices in question by all relevant participants in a community, which will encourage consensus and acceptance in a democratic fashion over time. Domestic legal orders that connect each state and its peoples provide moral bases of international law through solid associative obligations of states as moral agents of their peoples across borders. Such international legal order structured by moral states will develop and deepen the authority of international law as a political morality. From the perspective of interpretivism, treaty interpretation is a process of determining the real intentions of contracting parties to a particular treaty ‘in light of’ the fundamental principles and values of international law as a sort of a constitutional law of the international community. It is also a process of reading the texts of relevant treaties in an evolutionary way through the constant making of ‘value judgments’ by all relevant participants, obviously including the contracting parties to those treaties, all of whom have been concerned and connected with the law practices in question. Therefore, treaty interpretation cannot be a one-off process with matters exclusively reserved only for courts and states. Rather, a proper treaty interpretation should be the process of ‘continuity’ and ‘change’ in which the constant provision of potentially best arguments and the justification for the values of relevant international law practices are essentially required.