개인진정 결정(Views) 불이행을 원인으로 한 국가배상소송 가능성

초록

Republic of Korea is a State that human rights victims bring individual complaints to several UN Human Rights Treaty Bodies after exhausting all available domestic remedies. Among them the most important Treaty Body for Korea is the ICCPR committee(UN Human Rights Committee, HRC). The Problem lies in State’s non-compliance with the HRC Views even though a number of complaints have been filed by victims and recognized as violations of ICCPR by HRC for the last 20 years. Specially individual complaints brought by conscientious objectors have been internationally drawn attention. It is because HRC’s Views for conscientious objectors have been completely ignored by Korean government. Under this situation this paper explores possibility of State compensation for non-compliance with the Views. The direct cause of this paper comes from Ángela González case that the Supreme Court of Spain sentenced in July 2018. The Court has established that the Views expressed by UN Human Rights Treaty Bodies in individual complaints are binding on the State. It has affirmed that the State must comply with the Committee’s decision. This case could be applied in Korea? The State Parties’ non-compliance with the Views of UN Human Rights Treaty Bodies without any reasonable cause cannot condone on the light of the purpose of this mechanism. Even though the Views are formally not binding, irresponsible State’s non-compliance is likely to be a violation of international law. Angela case’s legal principle is difficult to apply in Korea as it is. But, Intentional and long term State’s non-compliance with the Views could correspond to a violation of international law as well as a government officer’s wrongful act of State Compensation Act(SCA) because the Views are de facto binding. Of course, a wrongful act of SCA cannot be decided only by legal character of the Views. Because laws are necessary to implement the Views in domestic arena, the wrongful acts mean legislative ommission. The problem lies whether legislative ommission could be SCA’s wrongful act because it is rarely recognized as tortious liability. However, it is not impossible in exceptional circumstances in Korea as well as in Japan. This paper points out conscientious objection cases as one of appropriate examples of torts because HRC has repeatedly recognized as violations of ICCPR and Korean government also repeatedly ignored them for the last 20 years.

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