구금 이주민의 권리에 관한 비교법적 분석 –미국 연방대법원 및 유럽인권재판소 사례를 중심으로–

Human rights laws present a challenge to the sovereign rights of states. The right to determine who may enter a state is one of the fundamental rights of sovereignty. The right to liberty, right against arbitrary detention, and freedom from torture or cruel, unusual, or degrading treatment are among the most basic human rights, in international human rights law and the constitutional or domestic laws of most states. Clashing human rights and national security create a dilemma for states. Cases involving migration and migrant detention have reached the US Supreme Court and the European Court of Human Rights (ECtHR). Each court must balance states’ sovereign right to protect their borders with their human rights commitments. The courts have consistently emphasized the importance of due process and procedural rights for migrants. However, the US Supreme Court has been deferential to state’s broad powers to enforce immigration law. The ECtHR has been more likely to rule in favor of migrant applicants under European Convention on Human Rights. Comparing how courts in these two jurisdictions balance delicate questions of individuals’ rights with the state’s sovereign prerogatives illuminates the critical question of the appropriate balance between national security and human rights. The US Supreme Court and the ECtHR present excellent cases for comparative analysis because their jurisdictions are common destinations for migrants. Moreover, state practices of the US and EU member-states have strongly influenced the development of international law. This Article compares court cases involving detention of migrants in the US and Europe to determine how states can comply with human rights law while preserving their right to protect their borders. Based on these cases, the Article proposes best practices for state compliance with international law on migrant detention.