국제법상 국가면제 － 국제인권법의 관점에서 －

Abstract

It is widely accepted that a foreign state enjoys some jurisdictional immunity in the domestic courts of another state. The doctrine is based on the equality of sovereignty, and practical reasons to avoid unnecessary conflicts among countries. State immunity developed from absolute immunity to restrictive immunity. The theory of restrictive immunity divides state acts into sovereign, public acts and private, commercial acts, and the privilege of immunity is denied to the latter. Domestic legislation such as the U.S. and the United Kingdom, and the U.N. Convention on Jurisdictional Immunities of States and Their Property follow restrictive immunity but still grant state immunity to human rights violations by states. The development of international human rights after World War II, however, has weakened the theory of absolute sovereignty, and promotion and protection of human rights became international concern. Accordingly, gross human rights violations cannot be justified by sovereignty. Universal jurisdiction, which allows any state to prosecute individuals responsible for violating international crimes, has been increasingly accepted. Allowing torts claims against a state responsible for gross human rights violations such as torture contributes to preventing similar human rights violations in the future and enforcing international norms in domestic courts. Considering that diplomatic protection and other mechanism to protect individuals are not sufficiently efficient, remedy by domestic courts could be one of the alternatives. Morever, prohibition of torture is considered as jus cogens. Therefore, denying civil jurisdiction based on state immunity, which is lower in status than jus cogens, cannot be justified. State immunity, which has been a serious obstacle to civil remedy in case of human rights violations, should be reconsidered.