국제법상 국내구제완료 원칙과 재판의 거부와의 관련성에 관한 소고 - 유엔국제법위원회 ‘외교적 보호에 관한 조항 초안’을 중심으로 -

Denial of justice is a concept that belongs largely to the realm of the primary rule. It is, however, inextricably linked with many features of the local remedies rule, including that of ineffectiveness, and as such may be said to have a secondary character. The local remedies rule and denial of justice are historically intertwined. Even though the codification failed, The concept of denial of justice had been dealt with many features of the local remedies rule, including that of ineffectiveness, in the ILC with regard to diplomatic protection. ILC in 2006 codified the exceptions to the exhaustion of local remedies rule in art. 15. Among these, the concept of denial of justice is deemed to be covered by art. 15 (a), (b) and (d). These clauses as follows; Local remedies do not need to be exhausted where: (a) There are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress; (b) There is undue delay in the remedial process which is attributable to the State alleged to be responsible; (d) The injured person is manifestly precluded from pursuing local remedies. The Art. 15 of ILC draft is judged to seek to harmonize the concept of denial of justice with the exhaustion of local remedies. Too much rigidity between both will be undesirable. We need to allow a denial of justice to constitute a mitigating factor for the requirement to exhaust local remedies.