국가면제 인정 여부에 관한 상반된 서울중앙지방법원 판결에 대한 비판적 평가

초록

In two cases of compensation for damages due to illegal acts filed by comfort women victims against Japan, each bench of a court is making different judgments. While one bench reached a decision on the merit, without allowing the application of State immunity and acknowledging the court's jurisdiction, the other bench ruled, on the premise that international customary law on State immunity still grants State immunity even for acts that violate jus cogens norms, that it cannot exercise jurisdiction. It seems that each country's position on whether to recognize State immunity for such violations of jus cogens norms is different. Of course, the majority of countries and international courts such as the ICJ and the European Court of Human Rights recognize that the current international customary law on State immunity also recognizes State immunity for acts that violate jus cogens norms, and that, since there is no situation of conflict of norms between the superior norm, jus cogens and the lower norm, say, State immunity, it is said that the current international customary law on State immunity should be respected. On the other hand, Supreme Courts of Italy, Greece, Brazil, and a lower court’s bench in Korea deny State immunity for violations of jus cogens norms on somewhat different grounds. It seems that there are cases where the issue is resolved through a conflict of norms, there are cases where the issue is attempted to be resolved within the framework of State immunity norms, and there are also cases where the issue is resolved based on the protection of national Constitutional values. How do we understand these two conflicting positions? In particular, the question is whether to view the position of Italy and others as a violation of the current international customary law on State immunity or as the beginning of a new practice that signals a change in international customary law on State immunity. I think it is necessary to make a judgment in light of the process in which the concept of national sovereignty is changing in today's international society. Although it is questionable whether we have fully reached that point, the clock is moving in a direction where national sovereignty is weakening and the protection of human rights is becoming a more important value in the international community. If so, it is assumed that the attitude of the international community will be established in the direction of excluding State immunity for acts that violate jus cogens. Methods to accommodate such changes include a functional solution that no longer considers the nature of the act violating jus cogens as a sovereign act, a normative solution that resolves the issue by changing the content of international customary law on State immunity, and a method of resolving the issue by acknowledging the normative hierarchy of jus cogens and State immunity.

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