국제법 위반의 중대성에 따른 주권면제 부인 가능성

Sovereign states, which had been established under the Westphalian system of international law, acquired the status as essential subjects exclusively on the premise of mutual equality. Such an international legal status necessarily stimulated the notion of sovereign immunity to the extent that a sovereign state would not be subject to any foreign jurisdiction. By the middle of the 20th century, the sovereign immunity had undergone a constant transition to the restricted practice within the range of acta jure imperii. Since then, the restrictive sovereign immunity has been repeatedly perceived as customary international law. However, it is hard to deny that the adherence to the sovereign immunity of last century by main courts at home and abroad can also be problematic, considering the development of contemporary international law in terms of both quality and quantity. Therefore, it is worthy of notice that the postwar international order has changed fundamentally from the blueprint which the law of nations had presumed. The diversification of the subjects in international law, the development of jus cogens, and a series of the war-crimes trials continued up to the establishment of International Criminal Court in 2002. Such a postwar development implies a constant expansion of effectiveness with regard to state responsibility and relevant sanctions. Added to that, the recent development also suggests that practice on the restrictive sovereign immunity cannot be free from the changing tendency of contemporary international law. However, the restrictive sovereign immunity has not been able to reflect the new international legal tendency adequately despite the steady supports from a series of international and domestic courts up to recently. Above all, the relevant concept of the restrictive sovereign immunity cannot distinguish the state practices quantitatively as well as qualitatively in a proper manner, since the notion of acta jure imperii is presumed to cover both the ordinary act of state and serious breach of international law. The restrictive sovereign immunity originated from the purpose of illuminating the relevant cases and securing the predictability thereof on the premise that the sovereign immunity on the absolute doctrine should be modified. However, the recent decisions by some mainstream courts have excessively adhered to the predictability within the restrictive sovereign immunity, eventually causing the legal accountability vacuum under the pretense of legal stability distant from the development of contemporary international law. As we can observe this from the majority opinion of the ‘Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)’ of ICJ and ‘Al-Adsani v. the United Kingdom’ of ECtHR, sovereign immunity has been functioning paradoxically as an obstacle to access to court for the victims and eventually to the protection of their human rights in case of serious breach of international law. Then, after grasping the relevant points by the international and domestic courts, it needs to be arranged how sovereign immunity should be modified. In spite of the prevalent adherence to sovereign immunity from a series of practices in international and domestic courts, there certainly exists a common feature in a chain of decisions which have performed a role as a significant objector. It deserves attention that the Italian Constitutional Court in 2014, inter alia, found the enactments and subsequent practices of Italy in compliance with ‘Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)’ of 2012 to be unconstitutional, blocking the relevant legal effect. The Italian Constitutional Court based its reasoning on the ground that the right of access to court of Italian victims in pursuit of compensation for forced labor damages caused by the Third Reich constitutes an inalienable fundamental value in the Italian Constitutional Order. The decision implies that the right to compensation attributable to the jus cogens violation must not be neglected on the pretense of sovereign immunity with procedural character. In addition, some domestic courts have steadily ruled against sovereign immunity especially on the issues of return of Nazi-plundered cultural heritage, torture by state organs, and terrorism. It is essential for contemporary international law to protect the right of access to court in order to restore and secure human rights and dignity of the victim. In particular, the possibility to remedy by means of access to court is a last resort for the victims to be linked to their raison d’êre. This interpretation originates separately from the context of postwar settlement among relevant nations. Therefore, the possibility to remedy is inseparable from the discussion on the further restriction on sovereign immunity and can be achieved only through the rational adjustment thereof. Furthermore, the access to court will also offer the last bastion for Korean victims of the jus cogens violations in a situation with the postwar compensation issues unsettled entirely for over 70 years. To sum up, the doctrine and practice of sovereign immunity need to be constantly adjusted and restricted according to the human rights friendly practice under the contemporary international law. Furthermore, the time is at the point of denying sovereign immunity in the cases of serious breach of international law lest states should convert the immunity into the de facto indulgence.