국제적 법치주의의 본질과 기능에 관한 소고

Abstract

The international rule of law consists of a particular set of values and principles associated with the idea of international legality. It is a universal concept for all nations, also an effective means for establishing and maintaining the integrity of international legal order, promoting and achieving international justice and progressing and facilitating international legislation. At the international level the idea of international rule of law operates as a means rather than an end in itself and serves a function rather than defines a status. Essentially, the rule of law in the international arena constrains the government of a State not in the way that domestic law constrains an individual, but in the way that domestic law constrains a lawmaker. Governments are bound in the international arena, as in any arena, to show themselves devoted to the principle of legality in all of their dealings. They are not to think in terms of a sphere of executive discretion where they can act unconstrained and lawlessly. When government lawyers advise their government on the matters of international law they should keep in mind that their legal advice given to the government should not be grudging about legality, treating the international rule of law as an inconvenience. They should not be advising that their government is entitled to avoid the impact of legal constraint where it is ambiguous or unclear. Their legal advice should be given in a spirit that embraces the importance of the international legal order and the obligatory character of its provisions.