국제법상 '면제'제도의 기본적 쟁점에 대한 분석

Abstract

The immunity systems in international law commonly encompass the concept of jurisdictional immunity, which can be found in State immunity as well as diplomatic or consular immunity, immunity of head-of-State, immunity of international organization, and immunity of warship or members of foreign troops. To the extent that the operation of immunity would deprive a State of its otherwise exercisable jurisdiction or competence, this concept of jurisdictional immunity in such various immunity systems has the same legal nature or characteristics. There are, however, some differences in the rationales for justifying each immunity and in the scope and degree of the immunity among the immunity systems in international law. Jurisdictional immunity does not imply any exemption from the application of substantive law. It where applicable is from local jurisdiction and not from legal responsibility. This absence of substantive immunity is clearly manifested by waiver of jurisdictional immunity or voluntary submission of one State to the jurisdiction of another State. Therefore, the substantive as well as procedural rules of the local law, which may be temporarily suspended on account of the jurisdictional immunity, will resume their normal application. The immunity presupposes a subject-matter over which jurisdiction can be exercised but for the doctrine of immunity. while jurisdictional immunity may be differentiated from non-justiciability or lack of competence, the two concepts are indeed relative to one another, particularly from a practical point of view. Judicial confirmation of immunity would produce the same effect as determination of lack of competence. Immunity signifies the absence or lack of power or a duty to refrain from exercising such power on the part of State giving immunity, as well as the right of other State of exemption from, or non-amenability to, the exercise of judicial authority by a territorial State. Granting or claiming immunity seems to presuppose the existence of jurisdiction of the territorial State in the first place. Theoretically or logically, State immunity cases should follow a precise order in approaching the jurisdictional question. A court should determine and establish subject-matter and in personam jurisdiction first. Only after this is done does immunity become a proper subject of consideration. If jurisdiction does not exist, then the court should not reach the question of immunity. However, frequently the court, when seized of legal proceedings involving foreign States, inquiries first into the question of immunity and then proceeds to deal with other jurisdictional aspects. Though State immunity has been recognized as having grown out of diplomatic immunity and the immunity of personal sovereigns, the State immunity has not had much impact on other types of immunity. Diplomatic immunity, for instance, does not seem to have been rendered subject to the kind of limitations or exceptions to which State immunity is sought to be subject. The coexistence of State immunity and other types of immunity make it possible that suits arising out of same cause of action or based on the same facts may generate different results depending upon whether the designated defendants are foreign States or their embassies or diplomatic agents. The various bases and rationales have been suggested to support the rule of State immunity, absolute or restrictive, respectively. The major bases for restrictive State immunity can be found in the theories of acts jure gestionis, rule of law(fairness to private parties), respect for legitimate exercise of territorial jurisdiction.