조약 해석의 기준 원칙에 대한 재고찰 : UN 국제법위원회(ILC) 주석서의 ‘공통의사주의’ 기준을 중심으로

The principles of treaty interpretation are one of the most fundamental issues within the international legal system. However, treaty interpretation is not without its difficulties. Traditionally, there have been three competing positions on the interpretation of treaties, which should be accommodated in harmony. The UN International Law Commission (ILC) also takes a harmonized approach to treaty interpretation, rather than taking a particular position. Nevertheless, a literalist or textualist view, emphasizing the text of the treaty, has traditionally been the majority position. Thus, despite the ILC's harmonized approach, it appears to emphasize textualism and emphasize Article 31(1) of the Vienna Convention on the Law of Treaties over other provisions. However, the ILC also characterizes treaty interpretation as an art with discretionary exercises. What does it mean by art? How is the art of treaty interpretation to be practiced and realized, then? The structure of treaty law conventions, whether textualist or not, is not without its difficulties. The purpose of this study is to identify the principles of treaty interpretation that run through the Vienna Convention on the Law of Treaties system, based on an organic understanding of the treaty law system, and to shed light on the standards of interpretation. It argues that underlying the principles of interpretation of the Vienna Convention on the Law of Treaties drafted by the ILC is an attempt to ascertain the common intention that the parties intended to give to the text of the treaty, i.e., the common intention that they agreed to be legally binding and that this common intention approach can be utilized as a standard for treaty interpretation. It is important to note that common intentionality is distinct from one of the traditional approaches, subjectivism, which focuses on the inner intentions of the parties. A distinction is made between common intentions, which are consensual and legally binding. Furthermore, under Article 31(1) of the Convention, it is clear that the text is the starting point for treaty interpretation. But treaties must be interpreted in terms of the common intentionality standard that runs through the general rule and supplementary means. The ILC emphasized that the provisions of Article 31 are not hierarchical and are all designed to be interpreted systematically and integrally. Furthermore, the ILC's commentary suggests that Article 31 “general rules” and Article 32 “supplementary means” are not hierarchical, but rather of a unity of interpretation. This intentionalist approach has its limitations. Nevertheless, the Vienna Convention on the Law of Difficult Treaties, drafted by the ILC, may be helpful in interpreting the treaty.