국제공동체 개념을 통한 국제법상 양자주의의 극복과 대세적 의무

Bilateralism has long been the cornerstone of international law. On the basis of one-on-one bilateral relationship, states have exchanged rights and obligations for their own individual interests. After the World War II and the establishment of the United Nations, the scholarly tradition of the 19th century ‘solidarism’ begun to bear fruit. The term ‘international community’ became a catchword, and states and other subjects of international law started to recognize the fundamental values to be pursued by all members of the international community. Such supreme ethical values as ‘international peace and security’, ‘human rights’ and ‘environment’ compelled international law to develop new legal tools to protect those values. This paper explores one of those legal tools—i.e., obligation erga omnes. When a breach of obligation erga omnes occurs, international law recognizes each and every state’s legal standing to invoke the responsibility of the lawbreaking state. In this regard, obligation erga omnes is a procedural concept, and thus the efforts to explain this notion in a substantive language should be restrained. It also appears that obligation erga omnes has opened a possibility of actio popularis in the field of international law. This concept of obligation erga omnes is closely linked to the theme of ‘enforcement of international law’ either through actio popularis at the international level or through ‘lawful measures’ to be taken by third-sates on behalf of the injured state in the field of state responsibility.