ScholarWorks@숙명여자대학교

초록

This article aims to systematize and clarify the value and normative force of the pronouncements of treaty bodies that interpret human rights treaties, in relation to their relationship with courts, whether international or domestic. To achieve this, it seeks to establish three main points. First it aims to demonstrate, at an empirical level, the relative interpretative value of the pronouncements of treaty bodies by analyzing case law from international and national courts. Second, it seeks to show that theoretical research and practical reviews to date recognize the authoritativeness of treaty bodies' pronouncements on one hand, but challenges their legitimacy under international law on the other. Finally, it adopts a conceptual analysis of ‘authority’ to suggest that the authority of treaty bodies is not ‘binding authority’ but ‘persuasive authority’ and that access to treaty bodies' pronouncements should be understood in terms of ‘optional authorities’ rather than ‘mandatory authorities.’ The adoption of a treaty body's pronouncement as an ‘optional authorities’ is subject to the normative force of the pronouncement and its effective availability within the legal system to which the court belongs. The normative force of a treaty body's pronouncement depends on whether it is considered legitimate. The effective availability of a treaty body's pronouncement depends on its impact on the legal certainty of the legal system to which the court belongs. If the legal system is to be adopted into domestic law, it will be tailored to be compatible with the established domestic legal system. What practically affects the effective availability of a pronouncement is the degree of international and national diffusion of the norm contained in it i.e., the degree of universalization or generalization. The practical implication of increased reference to and citation of treaty bodies' pronouncements by domestic courts is the complementarity of the pronouncements, which is not merely supplementary but can be a critical factor in crossing the threshold of adoption by adding weight to the same content of two competing norms.

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