국제법상 신체의 자유에 관한 연구

• 영문명: The Right to Liberty of Person as Influenced by the UN Working Group on Arbitrary Detention(WGAD)
• 발행기관: 국제법평론회
• 저자명: 신희석(SHIN, Hee-Seok)
• 간행물 정보: 『국제법평론』제50호, 195~219쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.06.30

영문 초록

The UN Working Group on Arbitrary Detention (WGAD) is a UN human rights body specializing on arbitrary deprivation of liberty, one of the most grave human-rights violations under international law. The WGAD, established in 1991 by UN Commission on Human Rights resolution 1991/42, is a UN human-rights special procedure, which prefers the non-legal, problem-solving approach to cases of human-rights violations. Thanks to the favorable political winds at the time of its creation, the WGAD adopted the quasi-judicial procedure for individual petitions, common among the human-rights treaty-monitoring bodies whose main duty is to authoritatively interpret and apply the respective treaties. The hybrid nature of the WGAD contributed to its expansive remedies for arbitrary detention and progressive development of the norms related to personal liberty. Because the WGAD renders authoritative legal opinions on the basis of established norms and procedure in response to individual communications, the WGAD has been recognized as a quasi-judicial organ not only by the international treaty-monitoring bodies but also by regional human rights courts. At the same time, unlike the treaty bodies, the WGAD’s quasi-judicial proceedings are unencumbered by the requirements for the ratification of treaties by concerned states or the exhaustion of domestic rules thanks to the flexible, non-judicial procedure employed by other UN special procedures. The only applicable condition is indeed the occurrence of arbitrary deprivation of liberty. The WGAD has expanded the doctrinal scope of personal liberty with the concept of arbitrary detention lato sensu to address the detention of political prisoners under convenient legal pretexts as well as to expand its competence, which has to be occasioned by arbitrary deprivation of liberty. Over many centuries of struggle for freedom, national constitutions universally recognize the liberty of person and require its deprivation to be in accordance with the law to protect individuals from the whims of state power. However, the mass deprivation of liberty by Nazi Germany and its totalitarian allies under the color of law prompted the post-war international human-rights law to demand not only the legal basis but also the absence of arbitrariness. The 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights and the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment as well as other international and regional instruments incorporated the prohibition of arbitrary arrest and detention. International law codified the right to be informed of the reasons for arrest and charges, judicial oversight of criminal detention, the general assumption against pre-trial detention, habeas corpus and an enforceable right to compensation for unlawful detention. While these rules may be effective in revising incompatible domestic regulations or practice, their efficacy was limited for arrest and detention of political prisoners and minorities that formally hued to the law. The WGAD’s institutional peculiarities helped it overcome the limitations posed by the existing international law, and provide more effective remedies to the victims of arbitrary detention. In general, the work of monitoring bodies may be categorized as (1) the review function to determine the compliance of states, (2) the correction function to indicate remedies or ways to prevention reoccurrence in case of violations, and (3) the creative function to provide detailed norms to be applied in particular instances. The human rights treaty-monitoring bodies and UN human rights special procedures, the two pillars of international human-rights system, began to develop from the 1960s.

목차

Ⅰ. 서 론

Ⅱ. 기존 국제인권법상 신체의 자유 규범의 발전과 한계

Ⅲ. WGAD의 활동 방식과 특징

Ⅳ. WGAD에 의한 신체의 자유 규범 발전

Ⅴ. 결 론

키워드

신체의 자유 자의적 구금 자의적 신체자유의 박탈 유엔 인권특별 절차 인권조약 이행감독기구 준사법적 개인진정 절차 보편적인 신보호절차 Liberty of Person Arbitrary Detention Arbitrary Deprivation of Liberty UN Human Rights Special Procedures Human Rights Treaty Monitoring Bodies Quasi-judicial Individual Petition Procedure Universal Habeas Corpus