국제사법기구가 내린 잠정조치명령의 효력- 인권보호 기능을 중심으로 -

Abstract

An order of provisional measures may require that the State take positive action, such as providing protection for human rights activists or journalists, or it may call upon the State to refrain from taking action, such as not extraditing a person or delaying the execution of prisoners until their cases have been resolved before the international judicial body. The purpose of provisional measures in international human rights law is most often to protect persons involved in a case from urgent danger of grave and irreparable injury. We conclude that alternatives for ensuring to implement orders of provisional measures must be sought, and the multiple jurisdictions charged with the enforcement of international norms have the necessity to harmonize and evolve their treatment of provisional measures. In general, States have accepted the decisions of international courts that provisional measures are binding on the States that are parties to the applicable treaties. Many States have not yet accepted the view that provisional measures specified by international quasi-judicial bodies also are binding on States. We argue inter alia that States that have accepted the right of individuals to petition international human rights bodies are bound to respect that petition process by refraining from interfering with the process and by protecting the lives and rights of those involved in the case. Thus, provisional measures are implied in the constituent documents that provide for the right of individual petition and must be considered to be binding on States that are parties.