국제법원의 裁判不能 재론 : 괴델의 不完全性 定理 유추의 한계

Pursuant to Article 38, paragraph 1(c), of the ICJ Statute, which is a virtual carbon copy of Article 38, paragraph 3, of the PCIJ Statute, the ICJ may apply “general principles of law recognized by civilized nations”, as well as international conventions and international custom. This clause was inserted in 1920 when the Advisory Committee of Jurists adopted the proposal made by Mr. Root and Lord Phillimore to avoid the “blind alley of non liquet” after some discussion of, for instance, the prohibition of non liquet as a principle of law, the so-called residual negative principle, and the adversarial principle in litigation. There had never been any declaration of non liquet by the PCIJ or the ICJ until the Nuclear Weapons Advisory Opinion was given by the ICJ in 1996. On the other hand, some American scholars argued in the early 1990s the incompleteness of law by an analogy to Gödel’s Incompleteness Theorems, which had seemingly never appeared before in the legal literature. It is attempted in this paper to show that the completeness or incompleteness of law in general as well as that of international law has not been proved yet and the question of non liquet, and the related question of lacunae, in international law remains to be solved.