[In-Depth Review] International Human Rights Treaties Should Be Made as Accessible as Domestic Laws

When faced with an unjust situation, people seek legal ways to resolve it. If financial damage has occurred, they claim compensation from the other party; if they have been victims of a crime, they report to the police or file a complaint. We can solve problems through the law in this way. But what if, in cases of injustice, one could utilize 'international human rights treaties' instead of domestic law? Since international human rights treaties have the same effect as domestic law, this is not impossible (Article 6, Paragraph 1 of the Constitution).

Among the nine core international human rights treaties selected by the United Nations (UN) Office of the High Commissioner for Human Rights (OHCHR), South Korea has acceded to and ratified a total of seven treaties. These include the ▲International Covenant on Economic, Social and Cultural Rights ▲International Covenant on Civil and Political Rights ▲International Convention on the Elimination of All Forms of Racial Discrimination ▲Convention on the Elimination of All Forms of Discrimination Against Women ▲Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ▲Convention on the Rights of the Child ▲Convention on the Rights of Persons with Disabilities.

In fact, many people have fought to reclaim their rights based on these international human rights treaties. In cases of conscientious objection to military service, cases related to the right to organize and collective action of labor unions, cases restricting clan membership qualifications to males only, and cases involving torture and investigative procedures, international human rights treaties have been used as weapons for the wronged and as grounds for court decisions.

Lee Sun-min, Attorney at the nonprofit organization Duru (Source: Duru website)

Let us look at a representative case of conscientious objection to military service. The court began to specifically apply the International Covenant on Civil and Political Rights (ICCPR) in this case from the lower court (first instance) ruling in 2004. Over approximately 14 years, more than 100 lower court (first and second instance) rulings acquitted defendants, with many judgments citing the ICCPR as grounds for 'justifiable reasons' under the Military Service Act.

Finally, on June 28, 2018, the Constitutional Court, in decision 2011HunBa379, used the ICCPR as an important criterion in declaring the Military Service Act unconstitutional. On November 1, 2018, the Supreme Court, in the plenary session ruling 2016Do10912, acquitted conscientious objectors and explained how the ICCPR is applied through a concurring opinion.

How can one find these important international human rights treaties, which have the same effect as domestic law and are utilized in precedents? Unfortunately, the judiciary’s comprehensive legal information system does not provide any search results for international human rights treaties. It is equally difficult to find them on the National Law Information Center provided by the Ministry of Government Legislation. Even typing the name of an individual international human rights treaty in the search box on the main page yields no results. One must enter the 'Laws' category on the National Law Information Center website and then click on treaties to search.

If the domestic legal effect of international human rights treaties is recognized, the judiciary and executive branches should promptly create an environment where citizens can more conveniently access related content. International human rights treaties can be an effective means for individuals to protect their rights. I would like to conclude by introducing the concurring opinion from the Supreme Court plenary session ruling mentioned above.

"The court must strive to interpret laws in conformity with the treaties, as well as when interpreting constitutional fundamental rights. Interpreting laws in harmony with international human rights treaties is a duty the judiciary must uphold from the perspective of universal human rights."

Lee Seon-min, Lawyer at the Nonprofit Organization Duru