일괄보상협정과 국제법상 강행규범의 관계

The traditional bilateralist conception of international law is indeed showing signs of change thanks to the development of the so-called “peremptory norms of international law”, a set of non-derogable norms designed to protect the interests of the international community as a whole. In the traditional bilateralist world, diplomatic protection was thought of as a unique right of states on the basis of the damages of its constituents, and governments were able to dispose of rights of individuals to compensation through so-called lump-sum agreements. With the advent of individual rights in international human rights law and its emergence as one of the components of the so-called “fundmental values of the international community”, some argue that these lump-sum agreements, state-centric in nature, are indeed violations of jus cogens norms guaranteeing basic human rights. However, a more subtle approach to the relationship between jus cogens norms and lump-sum agreements is needed, taking into account the variety of opinions that exist on the legal nature of international peremptory norms and its effects, as well as the dichotomy between primary and secondary norms. This paper aims to 1)undertake a thorough examination of how jus cogens norms are formed and what its effects might be, and 2)and embark on a mult-faceted examination of the relationship between jus cogens norms and lump-sum settlement agreements. The question of whether the right to reparation by victims of jus cogens violations are themselves jus cogens will be addressed, as well as the question of whether even if these rights are not per se jus cogens, the way governments limit them through lump-sum agreements may sometimes be violations of jus cogens.