국제인권조약의 장소적 적용범위 확대 － 역외적용 가능성에 대한 일반적 고찰 －
Extraterritorial Application of International Human Rights Treaties
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The issue of the extraterritorial application of international human rights treaties concerns whether a state party of a human rights treaty has duty to implement the treaty outside of its territory. The extraterritorial application of international human rights treaties is extraordinary account because the ordinary expectation of human rights treaty obligation is limited to an extent that state parties guarantee human rights toward their nationals within its own territory. But in the international society, the empirical reality of state practice of its authority encompass beyond its territorial jurisdiction and boundary. Military occupation, leased territory, abroad settlement of its military force are, inter alias, prominent examples where human rights abuses have been one of the critical issues. Therefore, the extraterritorial application of international human rights treaties becomes a controversy, even though it is an exceptional account. The literal text of human rights treaty, especially ICCPR and its travaux préparatoires do not seem to intend to enlarge the scope outside of the national territory. However, apparently the Human Rights Committee has widened its scope beyond the territorial boundary as it is stated in the Individual Communi- cation, the Concluding Observation, and the General Comment. Moreover, ICJ held that the extraterritorial application of international human rights treaties is possible in belligerent occupation situation as in the Palestine Wall case, the Armed Activities of territory of Congo case, and the International Convention on the Elimination of all Forms of Racial Discrimination case.
Abstract
The issue of the extraterritorial application of international human rights treaties concerns whether a state party of a human rights treaty has duty to implement the treaty outside of its territory. The extraterritorial application of international human rights treaties is extraordinary account because the ordinary expectation of human rights treaty obligation is limited to an extent that state parties guarantee human rights toward their nationals within its own territory. But in the international society, the empirical reality of state practice of its authority encompass beyond its territorial jurisdiction and boundary. Military occupation, leased territory, abroad settlement of its military force are, inter alias, prominent examples where human rights abuses have been one of the critical issues. Therefore, the extraterritorial application of international human rights treaties becomes a controversy, even though it is an exceptional account. The literal text of human rights treaty, especially ICCPR and its travaux préparatoires do not seem to intend to enlarge the scope outside of the national territory. However, apparently the Human Rights Committee has widened its scope beyond the territorial boundary as it is stated in the Individual Communi- cation, the Concluding Observation, and the General Comment. Moreover, ICJ held that the extraterritorial application of international human rights treaties is possible in belligerent occupation situation as in the Palestine Wall case, the Armed Activities of territory of Congo case, and the International Convention on the Elimination of all Forms of Racial Discrimination case
참고문헌 (17)
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