고용소송과 국가면제 ‒ 국제인권법과의 관계를 중심으로 ‒

Employment and State Immunity ‒ Focusing on the Relationship between State Immunity and International Human Rights Law ‒

The practice of today indicate that not every act of a foreign State is accorded State(or sovereign) immunity, and that many countries distinguish between acts jure imperii and acts jure gestionis and only accord immunity to the former. The United Nations Convention on the Jurisdictional Immunities of States and Their Property is reflective of this trend, stipulating in Article 11 that if a State employs a person in another State, the employment itself is in principle not a sovereign act, allowing that person to file suits against the employer State in cases of alleged violations of labour law. However, such employment contracts might at times be sovereign, for exmaple when the employee is responsible for acts performed in the exercise of sovereign authority, or when their work is closely related to such sovereign acts. Immunity might also be granted when the employee is more closely related to the employer State rather than the State of the forum, or when allowing the employee to sue the employer State at the State of the forum harms the former s security interests. State practice is not uniform in this area, but most States now take into account these factors in deciding whether to allow State immunity or not. This dissertation explores how according State immunity in employment disputes might clash with the right to access to court in international human rights law. Currently, the European Court of Human Rights accepts sovereign immunity rules, particularly those stipulated in the aforementioned UN Convention, as constituting a legitimate limitation to the right to access to court. This not only diminishes the unique aspects of proportionality analysis in international human rights law, it might in some circumstances constitute a violation on the duty not to discriminate based on nationality. This dissertation argues that this potential clash should be avoided by a fuller proportionality analysis, in particular taking into account whether the applicant has alternative effective remedies available