국제기구의 면제의 제한 가능성에 관한 전망

An Outlook into the Possibility of Restriction on Immunity of International Organization - Focusing on ‘Access to Justice’ -

Under the postwar international law, immunity of international organization has frequently been invoked mainly to secure the functional necessity. The relevant immunity assigned to each international organization needs to be granted according to the respective legal capacity which is essential for the functional integrity. However, the predominant tendency related to the immunity of international organization is bound to the outdated practice of absolute immunity. Though not prevailingly, absolute doctrine of sovereign immunity has been surmounted in several areas despite the defensive attribute of sovereignty. Contrariwise, international organization connotes no sovereign essentials and the functional immunity thereof needs to be restrictive, if confronted by claims by victims of serious breach of international law. One needs to focus on the guideline of‘alternative-means test,’which was formulated in Waite and Kennedy case. Each domestic court has some possibility of surmounting the immunity of international organization and then proceeding to the merits according to the existence of alternative means. For victims in pursuit of judicial claim despite the relevant immunity, fight for‘access to justice’usually implies last resort. Therefore, recent decisions inobservant of‘alternative-means test’cannot avoid criticism from the viewpoint of human rights law. The ultimate aim for contemporary international law will be to subjugate the situation of accountability vacuum which has been aggravated by the immunity of international organization. Therefore, relevant judicial decisions on immunity issues need to be re-analyzed from critical approach.