合議體 法院 判決의 逆說 : 國際法院의 경우

Abstract

It has been said that the European Court of Human Rights faced the “doctrinal paradox” in the Fretté v. France case. The judgment aggregation theory shows that the paradox may occur in a collegial court when it has to decide a case which involves several connected issues. In a case where a panel of judges faces the doctrinal paradox, the same set of facts, law, and distribution of opinions in the court may result in different outcomes depending on how to aggregate their opinions. This paradox creates a logically incoherent decision because the overall outcome of the case would be incompatible with the reasoning about how individual issues should be determined. Given the impossibility theorem which List and Pettit have proved, there does not seem to exist any general method to prevent the paradox. This paper attempts to find some implications of the paradox for international adjudication, by exploring the ways that the International Court of Justice seems to have employed in its deliberation to evade the paradox in several cases. In the Application of the Interim Accord of 1995 case, for instance, the ICJ avoided determining the former part of the logical sequence of arguments advanced by Greece by way of finding that the latter must be rejected even assuming that the former should be upheld. It is suggested that such a hypothetical reasoning could, under certain conditions, allow the court to evade the paradox.