강행규범과 국가면제: 2012년 ICJ 관할권 면제 사건을 중심으로
Jus Cogens and State Immunity: With Special Reference to the Jurisdictional Immunities Case
0
조회
0
다운로드
14
인용
0
참고문헌
키워드
초록
In international law, jus cogens is accepted as rules which override other rules of international law, be they conventional or customary. In this respect, it is problematic whether jus cogens also override the rule of State immunity. As it were, the question is if it is possible to grant State immunity to actions brought against a foreign State before a national court in case where the foreign State violated jus cogens. As to this question, the Italian Corte di Cassazione, Greek Areios Pagos and English House of Lords respectively took different positions. The English court took the view that, on the exception to the State immunity, the English State Immunity Act provides so cleary that the English court whose principal duty is to apply the Act of Parliament should be bound by the terms of the Act. Thus, the English court ruled that State Immunity Act does not have a provision to exclude granting State immunity in case where a foreign State violated jus cogens. And also, the English court decided that there is no conflict between jus cogens and the rule of State immunity based on the assumption that the first is in nature substantial, the second procedural. However, the Greek court decided that an act which violates jus cogens is international crime which cannot benefit from State immunity. The Greek court furthermore said that a foreign State which violated jus cogens waived the benefit of State immunity tacitly. Finally, the Italian court straightforwardly ruled that as jus cogens overrides the rule of State immunity, it is not allowed to grant State immunity to a foreign State which violates jus cogens. In spite of these diverse views on the content of State immunity, ICJ, in the case which was raised by Germany against Italy, endorsed the English view. I presume that the view of ICJ is reflecting the formal legal positivism according to which jus cogens and the rule of State immunity cannot conflict each other, because the one is substantial and the other procedural. But, I would like to argue that if the international community accepts jus cogens, then it is requested to grant full effect to jus cogens, which means that if the rule of State immunity acts as a bar to realize the value which is enshrined in jus cogens, then, the rule of State immunity yield to jus cogens.
Abstract
In international law, jus cogens is accepted as rules which override other rules of international law, be they conventional or customary. In this respect, it is problematic whether jus cogens also override the rule of State immunity. As it were, the question is if it is possible to grant State immunity to actions brought against a foreign State before a national court in case where the foreign State violated jus cogens. As to this question, the Italian Corte di Cassazione, Greek Areios Pagos and English House of Lords respectively took different positions. The English court took the view that, on the exception to the State immunity, the English State Immunity Act provides so cleary that the English court whose principal duty is to apply the Act of Parliament should be bound by the terms of the Act. Thus, the English court ruled that State Immunity Act does not have a provision to exclude granting State immunity in case where a foreign State violated jus cogens. And also, the English court decided that there is no conflict between jus cogens and the rule of State immunity based on the assumption that the first is in nature substantial, the second procedural. However, the Greek court decided that an act which violates jus cogens is international crime which cannot benefit from State immunity. The Greek court furthermore said that a foreign State which violated jus cogens waived the benefit of State immunity tacitly. Finally, the Italian court straightforwardly ruled that as jus cogens overrides the rule of State immunity, it is not allowed to grant State immunity to a foreign State which violates jus cogens. In spite of these diverse views on the content of State immunity, ICJ, in the case which was raised by Germany against Italy, endorsed the English view. I presume that the view of ICJ is reflecting the formal legal positivism according to which jus cogens and the rule of State immunity cannot conflict each other, because the one is substantial and the other procedural. But, I would like to argue that if the international community accepts jus cogens, then it is requested to grant full effect to jus cogens, which means that if the rule of State immunity acts as a bar to realize the value which is enshrined in jus cogens, then, the rule of State immunity yield to jus cogens.
참고문헌 (46)
- 이성덕, "국제강행규범과 대세적 효력 원칙 개념의 비교", 중앙법학, 13(3), pp.379~410 (2011), 중앙법학회
- 정인섭, "신국제법강의, 제3판" (2012), 박영사
- 최태현, "국제법 위반행위에 대한 국가면제의 제한", 국제법학회논총, 51(2), pp.11~43 (2006), 대한국제법학회
- Badr G. M., "State Immunity, an Analytical and Prognostic View" (1984), Martinus Nijhoff Publishers
- Bankas E. K., "The State Immunity Controversy in International Law" (2005), Springer
- Bianchi A., "Ferrini v. Federal Republic of Germany", A.J.I.L, 99, pp.242~ (2005)
- Brower II C. H., "Republic of Austria v. Altmann, 124 S.Ct. 2240. United States Supreme Court, June 7", A.J.I.L, 99, pp.236~ (2005)
- Brownlie I., "Principles of Public International Law, 5th ed" (1998), OUP
- Byers M., "Custom, Power and the Power of Rules: International Relations and Customary International Law" (1999), Cambridge University Press
- Cassese A., "International Law, 2nd ed" (2005), OUP
- Chong A., "Transnational Public Policy in Civil and Commercial Matters", L.Q.R, pp.88~113 (2012)
- Evans M. D., "International Law, 2nd ed" (2006), OUP
- Fox H., "Jurisdiction and Immunities, In Fifty Years of the International Court of Justice", pp.210~236 (1996), Cambridge University Press
- Fox H., "The Law of State Immunity, 1st ed" (2002)
- Fox H., "The Law of State Immunity, 2nd ed" (2008)
- Gavouneli M., "Prefettura do Voiotia v. Federal Republic of Germany Case No. 11", 2000. Areios Pagos (Hellenic Supreme Court), May 4, 2000, 2001, pp.95, 198~
- Gattini A., "The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?", L.I.I.L, 24, pp.173~ (2011)
- Henkin L., "International Law: Politics and Values" (1995), Martinus Nijhoff Publishers
- Higgins R., "Problems & Process International Law and How We Use it" (1995), Clarendon Press
- McGregor L., "State Immunity and Jus Cogens", I.C.L.Q, 55, pp.437~ (2006)
- Orakhelashvili A., "Peremptory Norms in International Law" (2006), OUP
- Pauwelyn J., "Conflict of Norms in Public International Law : How WTO Law Relates to Other Rules of International Law" (2008), Cambridge University Press
- Roberts A., "Comparative International Law? The Role of national Courts in International Law", I.C.L.Q, 60, pp.57~ (2011)
- Sena P. De, "State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case", E.J.I.L, 16, pp.89~ (2005)
- Sir Watts A, "International Law Commission 1949-1998, Vol. II" (1999), OUP
- Yang E., "The Jurisdictional Immunities Case: Between Immunity and Impunity", OUULJ, 1, pp.32~36 (2012)
- Yang X., "Absolute Immunity of Foreign Armed Forces from tort Proceedings", C.L.J, 71(2), pp.282~286 (2012)
- "대법원 84가합 5303판결", ~
- "대법원 97다39216 판결", ~
- Al-Adsani v, "Government of Kuwait and Others, England, Court of Appeals", ILR, 107, pp.536~ (1996)
- "35763/97, Council of Europe: European Court of Human Rights" (2001)[URL]
- Arrest Warrant of 11 April 2000, , 3~ (2002)
- Light and Power Company Limited, "Barcelona Traction", ~ (1970)
- Bouzari v. Iran, , 7, pp.586~ (1996)
- "Dissenting Opinion of Justice Wald, Princz v. Federal Republic of Germany, 26 F 3d 1166", ~ (1994)
- Furundžija, "IT-95-17", I-T
- Greek citizens v, "Federal Republic of Germany, case No. III", ZR, 245(98) (2003), Neue Juristische Wochenschrift
- 1 A.C. 270,
- Jurisdictional Immunities of the State, "Dissenting Opinion of Judge Cançado Trindade Dissenting Opinion of Judge Yusuf", ~ (2012)
- Ferrini v., "Federal Republic of Germany, Judgment No. 5044", 2044, 11 March, 2004, Rivista di diritto internazionale 87, 2004, pp.128, 539~
- Kalogeropoulou and others v., "Greece and Germany, Application No. 59021", 00, Decision of 12 December 2002, ECHR Reports 2002-X, 2002, pp.129, 417~
- Margellos v, "Germany, Case No. 6", 2002, ILR Vol. 129, 2002, 525~
- Prefecture of Voiotia v, "Federal Republic of Germany, Case No. 11", 2000, 2000, pp.129, 513~
- "Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts", ~
- "Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, A", CN.4, pp.2006, ~
- General Assembly Convention on Jurisdictional Immunities of States and their Property, , Chairman of the Working Group, ~, pp.A (1999), C.6[DOI]