국제적 수준에서의 기본권의 제한과 보호

Fundamental rights generally are regarded as legal norms especially protected in the level of national constitutions due to the fact that the rights are provided in the constitutions. In contrast of that, Human rights are generally to be protected in the level of international society regardless of the provisions of the Constitution. Thus the discourse on the protection and limitation of fundamental rights should be premised on the discussion of Nation States unlike the Human Rights. However as the various entities such as international organizations and non-governmental organizations emerge, it is necessary to discuss the Fundamental Rights without the premise that there needs the States in the discussion of Fundamental Rights. In particular, the area where the concerned discussion is being introduced in earnest is Europe. In terms of the limitation of Fundamental Rights, the United States intends to limit the fundamental rights of European Union citizens directly with the SWIFT-Ⅱ convention. In other words, it is reasonable to postulates that the other states are able to limit the fundamental rights of nationals in a State. And in terms of protection of fundamental rights, we can consider primary court, namely the European Court of Human Rights to protect the fundamental rights of nationals without the help of any Member States. Furthermore, taking the fact into consideration that the right to privacy is to be protected by the power of nation states, it is noticeable for international entity like European Court of Human Rights to try to protect the fundamental rights without the help of Member States. Thus It is not unreasonable to sat that the matter of the limitation or protection of fundamental rights is not discussed in the level of nation states any more. And as it is possible that the international organization emerges in the Asian area, the discussion of the protection and limitation of fundamental rights is meaningful to us.