South Korea: Implementation and Application of Human Rights Covenants

Under article 40 of the International Covenant on Civil and Political Rights (ICCPR), the State Party undertakes to submit reports on the measures it has adopted which give effect to the rights recognized in the ICCPR and demonstrate the progress it has made in granting its citizens the enjoyment of those rights. The report was examined by the HRC in July 1992 and will be discussed in Part I of this article. The International Covenant on Economic, Social and Cultural Rights (ICESCR) also requires State Parties to submit reports, but the initial report of the South Korean government has not yet been considered by the Committee on Economic, Social and Cultural Rights. Because the relevant government reports have not been reviewed, this paper will only discuss briefly, in Part II, the infringements of various economic, social, and cultural rights caused by the unbalanced growth-oriented economic policy of the past. Meanwhile, questions remain as to whether, under Korean law, the Covenants are applicable to domestic human rights matters. These questions include: (1) Are individuals, whose human rights have been infringed by the State or other agency, able to claim protection for their rights and to claim relevant remedies before domestic courts simply on the basis of Covenant violations (i.e., direct application of the Covenants)? (2) If provisions of the Covenants conflict with those of domestic law, which law is controlling (i.e., hierarchy of the domestic laws and Covenants)? These questions will be addressed in Part III. After discussing the validity of several domestic laws which appear to violate the Covenants, Part IV will review a recent Constitutional Court decision which referred to the ICCPR.