국가면제와 강행규범, 二元性 검토

In the Thai Embassy case (1975), the Supreme Court of Korea held that sovereign acts of a foreign state lay beyond the jurisdiction of Korean courts, thereby implicitly recognizing state immunity. This position was made explicit in the Libyan Embassy case (1989), where the Court expressly affirmed the principle of state immunity. The Daelim case (1997) subsequently confirmed the doctrine of restrictive immunity, and, more recently, in the judgments delivered after 2021 concerning compensation claims by victims of the Japanese military ‘comfort women,’ the Court recognized the primacy of jus cogens norms over state immunity. Similar tendencies can sporadically be found in certain foreign courts; however, these stand in contrast to the ICJ’s 2012 judgment in Jurisdictional Immunities of the State, revealing tensions between domestic and international legal orders that transcend the realm of mere civil litigation. International legal assessments of these judgments are diverse. The strongest criticism is that such decisions drive the relationship between domestic and international law into a state of “divorce,” whereby international law, once in conflict with the constitutional order, may be formally incorporated but loses its substantive effectiveness. This so-called “robust dualism” has been characterized as a form of judicial putsch, effectively neutralizing international law within the domestic legal order. While acknowledging international legal arguments, these rulings erected constitutional safeguards as a barrier against their domestic application, thereby undermining the universality of international law and exacerbating legal uncertainty. Moreover, the fact that enforcement immunity continues to pose a formidable obstacle, rendering effective remedies elusive even after judgments are secured, must not be overlooked. Still, these rulings have also been positively evaluated for highlighting the lack of judicial protection afforded to victims, such as wartime detainees, despite their evident conflict with the doctrine of state immunity under international law. Against this backdrop, it has been argued that absolute prioritization of victims’ rights risks eroding the authority of international law itself, while absolute adherence to state immunity makes the effective protection of victims unattainable—hence the emphasis on a more conciliatory approach. Ultimately, the solution lies not in domestic court judgments but in institutional reconciliation through international and diplomatic mechanisms. The original rationale of state immunity, after all, was to exclude one state from the adjudicatory authority of another and to preserve sovereign equality through diplomatic settlement. Thus, what threatens the international legal order is not the victims’ recourse to litigation per se, but rather the divergent perspectives on how state immunity, situated at the intersection of domestic and international law, is to be understood. In this respect, the central challenge is how to overcome the tension between the hierarchical view, which treats state immunity (a procedural rule) and jus cogens (a substantive norm) within a unitary framework, and the coexistence view, which regards them as distinct and parallel. Just as the doctrine of absolute immunity gradually evolved into restrictive immunity, contemporary international relations require a recalibration between the ideal of human rights protection and the reality of sovereign coexistence. A shift from a dualistic to a ㅡmonistic and integrative understanding of the relationship between state immunity and jus cogens can be realized through a precise understanding of the origins and nature of state immunity, together with sustained efforts to harmonize international and domestic law.