국제법 준수를 위한 국내재판소와 국제재판소의 새로운 관계 정립

A New Relationship between Domestic Courts and International Courts with respect to Compliance with International Law

While classic international law usually regulates external relations among nations which constitute international community, modern international law deals with various internationalized internal matters such as international human rights law, international investment law, international criminal law and international environmental law, etc. The areas which the jurisdiction between international courts and domestic courts interacts are gradually increasing, and there are rule of exhaustion of local remedies, principle of complementarity under the Rome Statute of the International Criminal Court, margin of appreciation doctrine of the European Court of Human Rights and preliminary rulings procedure of the Court of Justice of the EU which handle with this interaction in international law. First, the rule of exhaustion of local remedies makes international courts to focus upon material international legal problems which could be difficult to solve in national courts, but it can still be short of legal remedies of individuals. In addition, while international courts play an incidental role compared to domestic courts according to the principle of complementarity under the Rome Statute of the ICC and the margin of appreciation doctrine of the ECtHR, the preliminary rulings procedure of the CJEU can enable national courts to depend on international courts. It thus follows that there hardly exist consistent principles and rules concerning the relationship between international courts and domestic courts. In conclusion, it is essential to strike a balance in the relationship between international courts and domestic courts in order to comply with international law. Therefore, some proposals could be made that international courts should decide which courts are the best interpreter and executor in the cases involved, contribute to strong compliance with international law, and an international institution has to be established to make jurisdictional criteria. Besides, from the perspective of domestic courts so as to comply with international law, it seems that the interpretation of friendliness towards international law, the acceptance of binding character of international courts judgments, the use of international law experts in national court proceedings, international law education for domestic judges, and the opportunity for dialogue between national judges and international judges are needed.