국제법상 자연법론에 대한 고찰

Abstract

The purpose of this study is to review the natural law theory in international law in order to examine some of the limitations of today’s international legal system, that is, the legal system based on voluntaristic legal positivism, and to consider the modern implications of natural law theory. Today, it is difficult to find international law scholars who take natural law as their legal theory. Even if there are natural law theorists, they may simply be referring to or emphasizing morality/justice rather than taking an approach based on “true law” or metaphysics like the classical natural law theorists. Therefore, there may be more cases of doubts on the necessity of studying natural law. Nevertheless, there is significance in studying natural law. This is because it is difficult to say that there are no remnants of natural law in the international legal system today. Historical study of natural law has been taken in order to comprehend how it has changed its nature throughout the history of international law. Furthermore, the inter-related thesis of (classical) natural law has been identified. Even though it is difficult to find the adherents of natural law today, the traces of natural law could be identified. Traces such as pacta sunt servanda, opinio juris, general principles of law, obligation of reparation, jus cogens, right of self-defence, equity, and human rights are discussed. Apparently, depending on your point of view, these issues may not be traces of natural law theory. However, in this study, it will be stated that there is a part to increase the understanding of the international legal system through the study of natural law theory. The fact that natural law was influential until the 19th century means that this jurisprudence could not have evaporated in an instant. It does not simply mean that there was a transitional period. There may be remnants of natural law in today’s international legal system, and they may still be affecting it. Therefore, an understanding of natural law may be necessary to deeply examine the limitations of today’s international legal system.