국제인권규범과 헌법: 통합적 관계 구성을 위한 이론적⋅실천적 고찰

The development of international human rights law has brought a significant normative change to a traditional conception of state sovereignty and to the dichotomous understanding of international and national law. A general attitude toward international human rights law in Korean legal scholarship and practice, however, is still heavily influenced by a nationalist idea that categorically prioritizes the domestic constitution. Constitutional law and international human rights law constitute an integrated global normative system that aims for a common purpose of universally guaranteeing and realizing human rights, based on organic mutual interactions and cooperation. Constitutions in many states recognize that international human rights law holds a semi-constitutional status or at least a status superior to domestic statutes. Multiple constitutions around the globe provide for an obligation of domestic courts to interpret human rights in accordance with major international human rights treaties and norms. In particular, when a domestic court and an international treaty body are in disagreement over concrete rights interpretations, the domestic court bears a “duty to engage” － to duly consider and respect the treaty body’s view and to provide a persuasive reason when the court decides not to follow the international body’s interpretation. The German Constitutional Court and the Spanish Supreme Court provide good examples that concretize this duty. The latest decisions of the Korean Constitutional Court and the Supreme Court indeed began to display a progress towards an integrative understanding of international human rights and national law. However, limitations remain as the court practice shows incoherency depending on the conclusion of the case (whether the domestic court’s interpretation coincides with that of an international treaty body) and tends to disregard the normative authority of the international body’s view for its lack of binding force as strict as that of judicial decisions. The Constitution of Korea is rich with its cosmopolitan potential that can be further realized. By recognizing the organic and integrated relationship between international human rights norms and the domestic constitution, and by constructing a productive partnership between domestic courts and international human rights treaty bodies, the meaning of human rights can be better concretized and human rights norms can be further developed through bottom-up processes. The two levels of law then can together constitute a global human rights norm system that possesses a dynamic and pluralistic nature.