國際法上核武器의 地位에 관한 硏究 = (A) study on the status of nuclear weapons in international law|RISS 상세보기

다국어 초록 (Multilingual Abstract)

1. Nuclear weapons are, by explosion or other uncotrolled nuclear transformation of nuclear fuel, or by radioactivity of nuclear fuel or radioactive isotopes, capable of mass destruction, mass injury.
2. By changing the design and mode of use of a nuclear weapon, its normal characteristics can be altered. Nevertheless, due to the high degree of accuracy of the delivery systems, even small warheads can be employed as strategic weapons or for strategic use. The same delivery systems can carry warheads to targets on the battlefield just as well. The distiction between tactical and strategic uses is of greater value than that between the types or yield of weapons themselves.
3. The question of the legality of employing nuclear weapon is controversial. The common approach is to judge the legality of these weapons' employment by applying the various specific legal rules on warfare. When the result shows that the specific rule forbids the use of nuclear weapons and the author cannot conceive of a kind of nuclear weapon or a use of one which would not be outlawed by that rule, the employment of nuclear weapons in general is then deemed to be illegal. In general, these opinions were stated in the 1950s and 1960s, so that the development of the weapons and their means of delivery may have changed the facts upon which these opinions were based.
4. The problem of the status of nuclear weapons under international law is, from now on, to be assessed in the light of the results of the "Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law in Armed Conflicts(1974∼1977)". The work of this Conference, as far as international law of war is concerned, resulted not only in the adoption of the Protocol I Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts ; furthermore an informal consensus was agreed upon conserning the status of nuclear weapons by the delegations from the nuclear Powers and the States without nuclear weapons.
5. This consensus, which is crucial for the application of Protocol I to the employment of nuclear weapons came into being when the heads of the delegations from the three western nuclear States submitted oral declarations during the Conference, according to which the new rules established by the Protocol were not intended to have any effect on, and do not regulate or prohibit the use of nuclear weapons. These declarations, which were not contradicted at the Conference, were repeated in a clause set down by the American and British Governments at the signature of the Protocol. Both China, who only took part in the first session of the Conference, and France did not signed the Protocols. Despite their non-participation in the consensus, these two atomic Powers are nonetheless subject to the rules of customary international law concerning the employment of nuclear weapons which preceded this instrument and are independent of it. China, on 14 September 1983, became party to the Protocol. It is worthy of note that the Chinese government inserted neither a reservation nor a declaration to the nuclear weapon clause of the two western Powers. Although the Soviet Union, who ratified the Protocol on 4 August 1989, has made neither orally nor in writing a comment commensurate with the western declarations, it must be regarded as party to the nuclear consensus.
6. The content of the nuclear weapon consensus can be summarized into two main propositions ;
a) Nuclear weapons are subject to two different legal orders, which must be strictly seperated from one another ; deterrence and arms control on the one hand, and 'jus in bello' on the other.
b) The employment of nuclear weapons is not prohibited 'per se' ; it is, however, subject to the customary legal prohibitions and limits, which were reaffirmed in Protocol I, concerning the protection of the civilian population and civilian objects. Those rules newly introduced by the Protocol, however, are not applicable to the use of nuclear weapons.
7. The atomic weapons clause of the American and British declarations do not represent a reservation according to international treaty law. They therefore need not be accepted and objections cannot legally be brought against them.
8. The differentiation between "old" and "new" rules in Protocol I, which is decisive for the interpretation and application of the nuclear weapons clause, raises some difficult questions, which will inevitably lead to cotroversy. As is usual practice in codifications, the two elements of reaffirmation and development of law, or, in other words, 'lex lata' and 'lex ferenda', are not so characterized in the treaty itself, and furthermore, are not clearly seperated ; on the contrary, they are frequently mixed up. During the process of formulation, an element of interpretation was added to the mere reaffirmation of the existing customary law. As a result of this, it can be open to doubt as to whether certain principles of law, which in their substance are undeniably part of customary law, should not be considered as old rules in one or another respect. Conversely, new rules may certainly contain an old customary law core.
9. The normative separation of the nuclear deterrant and the employment of nuclear weapons means that the legality under international law, or rather the non-illegality of deterrent strategy and deterrent threat are not transferable to the 'jus in bello', i.e. to the actual use of nuclear weapons.
10. The right of self-defence, the argument of necessity (necessity of war, military necessity) and the right of self preservation are no valid legal justification for the employment of nuclear weapons in such a way as to infringe those rules that are also applicable to nuclear weapons.
11. The prohibitions on reprisals drawn up in Protocol I are clearly new rules. However, in the opinion of the author, the nuclear weapon clauses are not applicable to this stipulation. A differentiation must be made here in two respects : firstly, the distinction between the ban on reprisals against the civilian population or civilians(Article 51, para. 6) as well as civilian objects(Article 52, para. 1) on the one hand, and the ban on reprisals against cultural objects and places of warship(Article 53, c), against the natural environment(Article 55, para. 2) and against works and installations containing dangerous forces (Article 56, para. 4) on the other hand ; secondly, the distinction between reprisals as a response to violations of the law of war, which do not themselves constitute an illegal attack on the goods refered to, and the so-called "reprisals in kind." All prohibitions on reprisals in Protocol I are effective for the use of nuclear weapons with the one very important exception of "reprisals in kind" against the civilian population and civilian objects. These reprisals have their foundation and legal justification in the fundamental legal principle of reciprocity. In the preparatory documents, there is no indication and even less proof that the Diplomatic Conference considered repealing this principle, which is fundamental for all law of war.
12. The first use of nuclear weapons is, in itself, not illegal. The Soviet unilateral, unconditional no-first-use declaration on 15 June 1982 which immediately came into force, yet is revocable, has no legal significance. The violation of this unilateral obligation as such would no be considered an offence under positive international law. Nevertheless, the first employment of a nuclear weapon will most likely lead to a response in kind by the opponent nuclear States. This will in turn be answered once more by nuclear weapons. The preemployment assessment of the effects of nuclear weapons cannot be limited to the single nuclear weapon to be used, but must take into account the use of the other weapons to be employed in this connection by the same State. An assumption that the nuclear war may be limited is nothing but a irresponsible gamble.
13. Nuclear weapons are deployed not for the purpose of being employed, but rather to deter the opponent from nuclear war. The threat to use nuclear weapons give rise to the question whether it consists of any violation of international law, expecially the Article 2, para. 4 of the United Nation's Chrter which prohibits all Members from the threat of force in their international relations. Nevertheless, the threat to use nuclear weapons to deter the nuclear agression can not be regarded as the threat of force inconsistent with the Purposes of the United Nations.
14. While modern international law in restricting the right to go to war to one case, Le. defensive war, did not adopt the Doctrine of Just War in the sense of a doctrine based on objective criteria of justice, it has, on the other hand, opened itself by the structure of the relevant norms to an ethical interpretation in terms of the Just War Doctrine. In other words, it has created conditions for a close relatedness of law and ethics in this field.
In taking up this new perspective in some interpretations of present day international law-based on the traditional Doctrine of Just War-, the problems of a just defensive war including the question of a just preventive war are discussed and, furthermore, the justice of a defensive war is scrutinized under the terms of the jus in bello. The works of W.V. O'Brien, P. Ramsey and M. Walzer may be mentioned as the examples. They consider defensive wars including the use of nuclear weapons as just (and legal) if these weapons can be applied in conformity with principle of proportionality and provided that utmost protection can be secured for non-combatants. But their factual argument-the possibility of a controlled use of nuclear weapons-is answered in the negative : a controlled nuclear war is nothing but a fantastical dream. Thereby, at least the defensive war carried out with nuclear weapon is ethically rejected and considered to be illegal. Nuclear war can no longer be judged in terms of the Doctrine of Just War.
15. The Just War theory can no longer be applied in the Nuclear Age. The decisive turning point is the fact that there is no convincing ethical justification for a "jus ad bellum" in the event of a Nuclear War. The North American debate has therefore concerned itself merely with "jus in bello" to gain ethical criteria. The quest for ethical criteria in "jus in bello" lacks the foundation. An ethical and political peace doctrine must take its place. The avertion of nuclear war (deterrence) can provide an ethical and political foundation from which criteria for the use of nuclear weapons (for deterrence or ending of a nuclear war) can be developed.

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목차 (Table of Contents)

目次 = ⅰ
第Ⅰ章序論 = 1
第1節硏索의 目的 = 1
第2節硏究의 方法 및 範圍 = 3
1. 硏究의 方法 = 3

目次 = ⅰ
第Ⅰ章序論 = 1
第1節硏索의 目的 = 1
第2節硏究의 方法 및 範圍 = 3
1. 硏究의 方法 = 3
2. 硏究의 範圍 = 6
第Ⅱ章核爆發技術과 核武器의 軍事的利用 = 8
第1節核武器의 定義 및 開發略史 = 8
가. 核武器의 定義 = 8
2. 核武器開發略史 = 9
第2節核爆發의 原理, 特徵 및 形態 = 12
1. 核爆發의 原理 = 12
2. 核爆發의 特徵 = 15
가. 衡擊波 = 15
나. 電磁氣放射線 = 16
다. 中性子彈爆發의 特徵 = 18
3. 核爆發의 形態 = 19
가. 高空爆發 = 19
나. 空中爆發 = 19
다. 表面爆發 = 20
라. 表面下爆發 = 20
第3節核武器의 分類 및 運搬手段 = 21
1. 核武器의 分類 = 21
가. 戰略核武器 = 22
나. 戰術核武器 = 22
2. 核武器의 運搬手段 = 23
가. 航空機 = 23
나. 彈道彈 = 24
다. 潛水艦 = 26
라. 巡航미사일 = 26
第4節核武器爆發의 效果 = 27
1. 財産에 대한 效果 = 27
2. 人員에 대한 效果 = 29
3. 環境에 대한 效果 = 33
第Ⅲ章核武器에 관한 國際法秩序 = 34
第1節國際社會의 構造와 國際法秩序 = 34
第2節國際社會의 核武器문제에 관한 二元論的認識 = 36
第3節國際法秩序上核武器의 地位에 관한 二元化 Consensus = 39
1. Consensus의 形成과 그 不可避性 = 39
2. Consensus 形成의 證據 = 43
3. Consensus의 內容 = 47
第4節核武器에 관한 國際法秩序와 英·美宣言上核條頂 = 49
1. 核條項의 內容 = 50
2. 核條項의 條約法上地位 = 51
가. 核條項의 法約性格 = 51
(1) 核條項의 反留保的性格 = 52
(2) 核條項에 대한 受諾 또는 異識提起 = 53
나. 核條項의 法的效果 = 56
第Ⅳ章戰時法上核武器의 地位 = 59
第1節槪要 = 59
第2節 1977년 "第1追加議定書"의 核武器에 대한 適用 = 60
1. 核武器使用과 "第1追加議定書"의 解釋 = 60
2. 核武器使用과 관련된 禁止 및 制限 = 64
가. 戰鬪의 方法 및 手段 = 66
(1) 基本原則 = 66
(2) 新武器 = 71
나. 民間住民과 民間財産의 保護 = 72
(1) 民間住民의 保護 = 74
(2) 民間財産의 保護 = 81
第3節不法的核武器使用과 違法性阻却事由 = 84
1. 自衛權 = 85
가. 一般國際法上自衛權의 槪念 = 85
나. 自衛權의 問題點 = 87
다. 正當防衛 = 88
라. 緊急避難 = 91
(1) 狹義의 緊急避難 = 92
(2) 自存權 = 95
(3) 國際刑法上緊急避難과 戰時法上緊急避難 = 97
(4) H. Lauterpacht와 M. Walzer의 見解 = 98
마. 豫防的自衛權 = 100
2. 復仇 = 102
가. 一船國際法上復仇의 槪念 = 102
나. 1977年 "第1追加議定書"와 復仇의 禁止 = 105
다. 慣習法으로서의 對等復仇 = 109
第4節核武器非先制使用, 不使用과 관련된 宣言들 = 112
1. 核武器非先制使用宣言 = 112
가. 1982年蘇聯의 核武器先制使用抛棄宣言의 「이데올로기」的性格 = 114
나. 1982年蘇聯의 核武器先制使用抛棄宣言의 法的性格 = 118
2. 非核國家에 대한 核武器不使用宣言 = 120
가. 1978年美國과 英國의 선언 = 121
나. 蘇聯의 核武器不使用宣言 = 123
第5節核門蹂越責任 = 124
1. 核門蹂越에 대한 責任의 內容 = 124
가. 戰時法上核門蹂越의 責任 = 126
나. 國內憲法上核門蹂越의 責任 = 128
2. 核門蹂越에 대한 責任의 限界 = 129
第Ⅴ章戰爭防止法秩序와 核武器의 地位 = 130
第1節槪要 = 130
第2節現代國際法과 核抑制理論 = 131
1. 核以前의 世界에 있어 國際法의 役割 = 131
2. 核時代에 있어 國際法과 核抑制理論 = 133
第3節核抑制戰略의 內容 = 134
1. 世界의 核抑制戰略 = 134
가. 核超强大國들의 核抑制戰略 = 134
(1) 美國 = 134
(2) 蘇聯 = 139
나. 第3의 核國家들의 核抑制戰略 = 142
(1) 現實的核國家 : 프랑스, 中國 = 143
(2) 潛在的核國家 및 非國家團體 = 146
2. 核抑制戰略과 核戰爭遂行戰略 = 148
가. 核抑制戰略과 核戰爭遂行戰略의 差異 = 148
나. 核抑制戰略과 核戰爭遂行戰略의 接近 = 149
第4節一般國際法上戰爭防止體制와 核抑制戰略 = 151
1. 一般國際法上核抑制戰略의 受容限界 = 151
2. 一般國際法上核抑制戰略의 對象, 目的 및 手段 = 152
가. 核抑制의 對象 및 目的 = 152
나. 核抑制의 手段 = 154
第5節 U.N.憲章上武力使用禁止體制와 核抑制戰略 = 156
1. 武力使用 대한 禁止와 核抑制戰略 = 156
2. 武力使用의 一般的禁止와 核抑制戰略 = 159
가. 現代國際法과 Liberum jus ad bellum의 廢止 = 160
나. Liberum jus ad bellum의 폐지와 Jus in bello = 161
다. "正當한 戰爭論"과 관련된 現代國際法의 解釋 = 162
(1) U.N.憲章을 bellum justum 敎理의 復元으로 보는 見解 = 162
(2) 現代國際法이 "正當한 戰爭論"을 克服한 것이라는 見解 = 163
(3) Jus in bello에 基礎로 둔 "正當한 驗爭論"의 復元을 主張하는 見解 = 164
라. 核時代에 있어 "正當한 較爭論"的觀點의 國際法解釋이 지닌 問題點 = 165
마. "正當한 戰爭論"으로부터 "正當한 平和論"으로의 轉換 = 166
(1) 平和槪念의 危機 = 166
(2) 平和槪念의 再定立 = 168
(3) "正富한 平和論"의 定着과 核抑制의 役割 = 170
第Ⅵ章結論 = 171
參考文獻 = 176
英文抄錄（SUMMARY） = 186

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