국제법원 판결의 국내적 효력* - Medellin 판결을 중심으로 -

Abstract

Despite that the United States had agreed to be bound by the rules set forth in the Vienna Convention on Consular Relations, and its Protocol providing for the compulsory jurisdiction of the International Court of Justice, its Supreme Court has continued to opine that the decision of the ICJ has no direct bearings in the courts of the United States. The recent decision on the case of the Medellin presents a most vivid example of such attitude of the U.S. Supreme Court. The Court appears to have shown deference to such principles of law under the U.S. Constitution, as the separation of powers, the Congressional check on the effect of treaties, the federalism, democratic social system, and the restraint on the Executive power in the making of treaties. Yet the Medellin decision apparently cast cold water in the implementation of the rule of law in the international affairs. The decision exhibits a seriously flawed understanding of the nature of the international legal obligations incumbent upon the United States. The decisions of the ICJ, whether provisional measures, or the decisions on the merits, are of compulsory nature with no possibility to be subject to further review. Practices of non-compliance may also be subjected to the sanctions of the Security Council, which in turn confirms the compulsory nature of the decisions of the ICJ. The Medellin decision is also in contravention of the long-held tradition of the U. S. judiciary, as it had been customary for the courts to refer to the principle of international comity so as to avoid the undesirable result of international law violations, rather than to bluntly declare that the Unites States should act in direct breach of the principles of international law. The decision leaves many observers of international law in great woe, in that the gist of the matter in the Medellin case was not mere interests of states, but the lives of those standing in death row, their consular rights, and the fundamental human right to life. As is widely known, the rules of the law of the treaties, and the customary principles of international law allow aggrieved states to take counter measures as a way of receiving remedies for their injuries deriving from breaches of treaty obligations, as long as the rule of proportionality can be adhered to. It is highly desirable that the U. S. courts take a different path in the understanding of the effect of the decisions of the international tribunals to the effect that the wrongs of the Medellin decision can be redressed, especially when the lives of people are at stake.