인권법적 관점에서 본 국제법과 EU법의 관계 - ECJ의 Kadi 판결과 Solange 이론을 중심으로 -

The judgments of the CFI and ECJ in Kadi case concerning the relationship between international law and EU law have caused a lot of attention and debate since the CFI adopted monism by deciding the obligations of Member States under the UN Charter prevail over those under the EC Treaty, the ECJ however adopted dualism by holding although the EU should respect international law, the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights. In particular, the ECJ pointed out that constitutional principles like protection of fundamental rights within the Community legal order take precedence over the UN Charter and Security Council resolutions. Having regard to the judgment of the ECJ, it also needs to take notice of Solange doctrine. It is concerned with respect for fundamental rights in the cases of competing jurisdictions, staring from the judgments of the Bundesverfassungsgericht. For example, Solange principle in the relationship between international and EU law refers as long as international legal order does not provide individuals with effective legal remedies, the ECJ would exercise its jurisdictions based on the constitutional principles of the EU. Until the UN protects human rights well enough, national or regional courts should do this work. In other words, so long as the UN establishes effective judicial control mechanisms in order to protect fundamental rights, the ECJ will not review measures to implement the acts of the UN organs any more. It is because Solange doctrine is aimed at seeking a minimum level of protection of human rights as well as respecting judicial autonomy. With respect to the fragmentation and unity of international law, it seems that the CFI could contribute to unity in light of the principle of primacy of international law, but the ECJ could promote fragmentation in view of the autonomous legal status of EU law. Nonetheless, the judgment of the ECJ is worth observing since it regarded fundamental rights as the most important values. From a human rights perspective, the interpretation of protection of fundamental rights as a constitutional principle would play a major role in the unity of international law in pursuit of constitutional principles common to the UN and EU, as well as recognize the fragmentation of international law. However, it is a pity that Kadi judgment tried to apply just European human rights standards, not universal human rights norms.