공적 긴급사태시 인권조약상 권리정지의 허용 및 한계에 관한 고찰

Since the World War Ⅱ, the serious human rights abuse occurred mostly under a state of emergency and the respect for human rights was restricted as much as it. Even the protection of the fundamental human rights, which is the national duty, was denied and a measure of derogation, which is opposed definitely to international human rights treaties, was adopted arbitrarily. This study explored the fair scope of the international human rights protection and analyzed the relevant precedents, focused on International Covenant on Civil and Political Rights and Convention for the Protection of Human Rights and Fundamental Freedoms, which are relatively detailed provisions pertinent especially to derogation out of the international human rights treaties. Therefore, this study comprehensively examined significance, requirements, procedure and limitation of derogation in light of convention. The objective of the article for derogation in light of the international human rights treaties is what defends or revives the democratic constitutional order available for effectively enjoying a right and freedom. Either Article 4 for International Covenant on Civil and Political Rights or Article 15 for Convention for the Protection of Human Rights and Fundamental Freedoms states clearly what the action of derogation can be taken only in the existence of public emergency, which threatens people's survival and in the limit of emergency, which is strictly required. However, it is not easy to define clearly the requirements for recognizing it to be emergency in light of the international law in reality, and a concept of derogation from the respect for human rights in a country. Nevertheless, requirements for establishment of public emergency, it should be an emergent situation, its influence should cover the whole nation, the continuance of living, which is social organization, should be threatened and its crisis or threat should be an exceptional case, which is definitely inappropriate as a common action or regulation; therefore, the derogation can be said about the final means and the potential measure. Therefore, first, this study examined necessity, proportion, non-discrimination, and observance of duty on international law as substantial requirements for taking the measure of derogation given the public emergency. Second, as the procedural requirements for derogation, this study explored the international notice of derogation and the declaration behavior of emergency. Third, this study examined a right of life as non-derogable rights in relation to derogation and limitation scope, and on a right of freedom in the body and due process of law as other right including prohibition of torture, prohibition of slavery, and prohibition of punishing a crime retroactively. The ultimate aim of derogation in light of the international human rights treaties is to maintain peace and justice by keeping and recovering democratic constitutional order. Therefore, people in democratic society can effectively enjoy a right and freedom. In the public emergency which is threatening people's survival, the nation's powerful limitation methods are required to keep democratic society. However, because there are risks that will cause crisis caused by excessive derogation and the scope issues in margin of appreciation in the country of convention, which has on derogation measure, there is necessity of being arranged the stricter and more specific law in advance and there will be necessity of more reinforcing implementation of international monitoring system for right evaluation on the derogation measure that the convention country executed as a post-control methods.