국가면제에서 ‘국가’의 의미에 관한 소고

Abstract

Insofar as the State immunity is granted to a ‘State’, the definition of the legal person entitled to such immunity is a central question in the determination of such status by the domestic courts. While the status of a ‘State’ entitled to immunity would be self-evident in most cases, there may be other cases where the question would arise. In addition, it may not be sufficient to refer a ‘State’ per se, given that a State is brought before domestic courts in the name of different legal entities through different capacities. What, then, is the definition of a ‘State’ entitled to immunity under international law, and how is the status of such a State determined? For instance, should State immunity apply to an entity that is not recognized as a sovereign State by the international community but exists as a so-called de facto State? Does the status of an entity that is entitled to State immunity in domestic courts depend on the forum State’s State recognition?.
 Regarding recent litigations involving an individual civil damages claim against North Korea in a domestic court, scholars have argued that the State immunity recognized under customary international law should be examined in light of North Korea’s status as an unrecognized State. The applicability of State immunity in cases against North Korea is primarily a question of the multi-layered legal status of North Korea, but it is also fundamentally linked to the epistemological perspective on statehood. The issue is related to the understanding of a State relevant to the objective personality under international law or reciprocal-relative or subjective personality which depends on other circumstances, such as the existence of State recognition.
 This article examines the definition of ‘a State’ in the context of State immunity to clarify whether the entitlement to State immunity is based on the entity’s objective legal personality under international law, or whether it is subject to interpretation or recognition within the domestic legal order. The article first reviews the use of the term ‘State’ in the UN Convention on State immunity and national legislation in individual States, and examines the external attributes of a State focusing on statehood, independence, and foreignness. In particular, the article examines the practice of domestic courts in applying State immunity to an entity not fully a ‘sovereign independent State’. It further explores the relationship between State recognition and State immunity, and the practice of domestic courts in conferring State immunity on an unrecognized State. The discussion concludes with implications for recent litigation against North Korea.