글로벌시대 주권과 인권에 대한 이해(理解)의 변화와양자의 관계 정립

Sovereignty is the political and legal concept created by the establishment of absolute monarchy in Europe, circa the 15th and 16th centuries. Sovereignty aims to preserve social chaos in the late Middle Ages and to maintain minimum order and peace for survival. Sovereignty can be understood as a ‘unified supreme power’ in politics, and as an ‘absolute supreme power’ legally. The theory of sovereignty evolved from the monarchy to the national sovereignty. The monarchy has led to a limit, due to its excessive concentration of power and the lack of capacity for the monarchy. The modern civil revolution which was emerged under this backdrop changed the subject of sovereignty from the monarchy to the people. National sovereignty is the starting point for democracy. National sovereignty was understood as a combative and ideological concept, as same case with the monarchy. However, the meaning of national sovereignty should be interpreted differently in today's democratic era. Today's national sovereignty should be interpreted as a meaning of the legitimacy of the national authority, and as a direction to which the state order should be directed. As the global era has arrived, the subject of sovereignty is still the people. The essence of national sovereignty is the nation's final arbiter, and this does not change. The changes are shown at the part of the absolute nature of sovereignty, which can be described as ‘Weakness of Sovereignty’. This is the expansion of international legal limits on sovereign power, due to the deployment of globalization. And these are the examples: The increase in FTA talks being a constraint on the formation of economic policies and social policies of individual sovereign states. And the adoption of mandatory jurisdiction of the international tribunal. The change in the subject of sovereignty from the monarchy to the people is a codification process of human rights. One can understand that human rights as natural rights are guaranteed to be the fundamental rights of constitutional rights. Not only the development progress of the human rights have been materialized as a process of becoming fundamental rights in each country. But also The World War Two has developed human rights in order to expand the ‘Reinforcement of Universality of Human Rights’ internationally, as the international human rights act. Globalization may be a factor in enhancing the reinforcement of universality of human rights. In global era, the changes about the understanding of sovereignty and human rights have led to changes in the relationship between the two sides. In the past, it was sovereignty over the supremacy in the relationship between sovereignty and human rights. But the change in globalization has rendered the sovereignty of each country no longer possible to act as a proper framework for guaranteeing human rights for the people of each country. Thus, it is impossible to maintain the supremacy of sovereignty continuously. To prepare for the change of sovereignty and human rights, the need of establishing a ‘normative criterion’ as a criterion for defining a ‘Global Standard’ has begun. Global Standard has no the accepted definitions yet, and it can be a concept of value judgements or not. The global standards will apply to changes in domestic law and international law, which are influenced by ‘Weakness of Sovereignty’ and ‘Reinforcement of Universality of Human Rights’. So it would be highly likely to be addressed as normative value in terms of legal standards. Such changes(‘Weakness of Sovereignty’ and ‘Reinforcement of Universality of Human Rights’) in the global era are all aimed at respecting and ensuring fundamental rights for the people. The normative value that could serve as a global standard for domestic and international order could be and should be ‘human rights’. When human rights are functioning as a global standard, it does not mean the extreme superiority of human rights toward sovereignty. That means that ‘balance putting emphasis on human rights between sovereignty and human rights’. It would be understood that human rights would respect the ‘uniqueness of national sovereignty(or culture)’, and thus expand the universal values that exist therein. These can be viewed as examples: The trend toward expanding the scope of social norms for foreigners, the recognition of multiple nationalities, the changes in national perception of individual sovereign states and expansion of the possibility of international involvement of the violation of human rights in individual sovereign states.