I. Scope and Contents of the Report. 1. This report discusses how the international human rights law ( IHRL ) and the international

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1 Report on the Implementation Status of International Human Rights Law and International Humanitarian Law in the Republic Of Korea : Cases of Domestic Court Application Chan-Un PARK 1 I. Scope and Contents of the Report 1. This report discusses how the international human rights law ( IHRL ) and the international humanitarian law ( IHL ) are applied within the domestic courts in the Republic of Korea ( ROK ). Most of this report will be focused on the IHRL, since the IHL is relatively infrequently applied compared to the IHRL. Only a few notable cases regarding the IHL are explained in this report. 2. The contents of this report are as follows: Status of Ratification of the IHRL and the IHL in Korea General Analysis of the Status and Legal Effects of the IHRL in the Domestic Court Application Status of the IHRL and the IHL in the Courts of the ROK Domestic Implementation of the Decisions of Individual Complaints under the IHRL Role of the National Human Rights Institution in the Domestic Implementation of the IHRL and the IHL II. Status of Ratification of the IHRL and the IHL An Outline of the Status of Ratification 3. The ROK is party of almost all of the international human rights treaties and international humanitarian treaties. The ROK ratified most of the international humanitarian treaties during the1960s and 1970s, and unlike many Asian countries, ratified the Rome Statute of the International Criminal Court. After the ROK acceded to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESCR) in 1990, it began 1 Professor of Law, The Law School, Hanyang Univ. Seoul, Korea; Attorney at Law; Ph.D in International Law. The author would like to thank Yoojin Oh, Officer of National Human Rights Commission of Korea, for valuable comments, suggestions, corrections and help in the preparation of this report. She corrected many errors and made this a worthwhile enterprise.

2 to accede or ratify many international human rights treaties that were either newly established or had not yet been joined by the ROK. This was closely linked to the wave of democratization that swept throughout Korea in the 1990s. Considering that the ROK recently ratified the Convention on the Rights of Persons with Disabilities (CRPD), it would not be much to say that the ROK is especially advanced in ratifying international human rights treaties like other developed states. However, certain human rights treaties have not been ratified due to domestic circumstances: the Second Optional Protocol to the ICCPR has not yet been ratified because the public consensus over the death penalty has not yet reached a compromise. At present, rising concerns about the increasing number of unregistered migrant workers make it difficult to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW). In addition, ratifying the Optional Protocol to the Convention against Torture (OPCAT) is reserved due to the concerns over the power and immunity of national preventive mechanisms 2 and on-site visits conducted by the Sub-Committee Against Torture. <Table 1> Status of Ratification on Human Rights and Humanitarian Treaties H u m a n R i g h t s Treaty ICESCR ICESCR-OP ICCPR ICCPR-OP1 ICCPR-OP2 CERD Ratification (deposit of the instrument of ratification or accession/ effected date / / / / Reservation/ declaration Art.14(5), (7), Art. 22, Art.23(4) Withdrawal of reservation/ declaration of acceptance Art.23(4) Art.14(7) Art.14(5) Art.14 Declaration of Acceptance l a w CEDAW / Art. 16(1)(c),(d),(f) Art Art16(1)(c),(d),(f) Art.9 CEDAW-OP / The NHRCK recommended the government to ratify the OPCAT, stating that it may be the national precaution organization required by clause 3 of the OPCAT. See Opinion on the Ratification of the OPCAT and the Designation of the National Preventive Mechanism (April 24, 2006). On this matter, institutions such as the Ministry of Justice have expressed concerns regarding the potentially excessive function and authority that may be acceded to the NHRCK.

3 CAT / Art.21, 22 Declaration of Acceptance CAT-OP CRC CRC-OPAC CRC-OPSC ICRMW / / / Art.9(3), Art.21(1), Art. 40(2)(b)(v) Art.9(3) CRPD / Art.25(e): Life insurance CRPD-OP ICPED R e f u g e e l a w Convention relating to the Status of Refugees Protocol relating to the Status of Refugees / / Art.7. Exemption from reciprocity Art.7. Exemption from reciprocity H u m a n i t a r i a n l a w 1907 Hague Convention 1949 Geneva Convention I 1949Geneva Convention II 1949 Geneva Convention III 1949 Geneva Convention IV 1977 Geneva Protocol I 1977 Geneva Protocol II Rome Statute of the International Criminal Court Genocide Convention 1899 Hague Convention was ratified by the former Korea in The Republic of Korea succeeded to the Convention on Aug / / / / / / / / declaration declaration declaration, interpretive declaration reservation and declaration declaration Reservations and Interpretative Declarations 4.When analyzing the ROK s patterns of ratification, the following can be found: if the provisions of treaties seem to be in conflict with the domestic legal system, the ROK makes reservations upon ratification rather than amend the conflicting domestic legislation to undertake the treaty obligations.

4 In addition, there were cases which showed that preliminary review of whether the provisions would conflict with the domestic law was not thoroughly carried out before ratification. 3 This proves that the purpose of ratifying human rights treaties is not focused on the improvement of domestic human rights standards. However, withdrawal of reservations enhances the level of domestic protection of human rights. For instance, when the government of Korea withdrew its reservations from the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), it actually amended the discriminatory domestic law. Recently, the reservation to Article 9(3) of the Convention on Rights of the Child (CRC) was withdrawn and it was followed by the amendment of the relevant Civil Act. With regards to the international humanitarian law, it is notable that the ROK is a party to the 1899 Hague Convention, not the 1907 Hague Convention, as the 1899 Hague Convention was ratified by the Korean Empire succeeded by the ROK. It can be perceived that the ROK made reservations and interpretative declarations to the Four Geneva Conventions due to the Korean War and the existing armistice. One common interpretative declaration here was that ratifying these treaties would not influence the status of the ROK, the only legitimate government in the Korean peninsula. The interpretative declaration reads, And, furthermore, the Government of the Republic of Korea does hereby declare that it is the only lawful Government in Korea as set forth in General Assembly Resolution No. 195(III) of 12 December 1948, and its accession to the present Convention shall not be construed as recognizing and Contracting a Party thereto which the Republic of Korea has not hitherto recognized. On the other hand, the following reservations were made to the Third and Fourth Geneva Convention, respectively: The Government of the Republic of Korea do hereby accede to the same and undertake faithfully to perform and carry out all the stipulations therein contained, subject to the following reservation : ad article 118 of the Geneva Convention relative to the Treatment of Prisoners of war: "The Republic of Korean interprets the provisions of Article 118, paragraph 1, as not binding upon a power detaining prisoners of war to forcibly repatriate its prisoners against their openly and freely expressed will." 3 For instance, the ROK made reservations on Article 14(7) of the ICCPR, but this was due to misinterpretation. In addition, the ROK made reservations to Article 40(2)(b)(5) of the Convention on the Rights of Child and Article 14(5) of the ICCPR (both provisions on the right to appeal), but the ROK only withdrew its reservation on the ICCPR. The ROK did not withdraw its reservation because of revision of law; the ROK did so because it interpreted Article 4, and Article 14(5) of the ICCPR, together. The ROKs interpretation of these articles was that they permitted limitations on the right to appeal under the situation of state emergency.

5 ad article 68 of the Geneva Convention relative to the Protection of Civilian Persons in time of War: "The Republic of Korea reserves the right to impose the death penalty in accordance with the provisions of Article 68, paragraph 2, without regard to whether the offences referred to therein are punishable by death under the law of the occupied territory at the time occupation begins." It made the interpretative declaration on the Protocol Additional I to the Geneva Conventions as follows: 1. In relation to Article 44 of Protocol 1, the "situation" described in the second sentence of paragraph 3 of the Article can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1, and the Government of the Republic of Korea will interpret the word "deployment" in paragraph 3(b) of the Article as meaning "any movement towards a place from which an attack is to be launched"; 2. In relation to paragraph 4(b) of Article 85 of Protocol 1, a party detaining prisoners of war may not repatriate its prisoners in accordance with their openly and freely expressed will, which shall not be regarded as unjustifiable delay in the repatriation of prisoners of war constituting a grave breach of this Protocol; 3. In relation to Article 91 of Protocol 1, a party to the conflict which violates the provisions of the conventions or of this Protocol shall take the responsibility for paying compensation to the party damaged from the acts of violation, whether the damaged party is a legal party to the conflict or not; and 4. In relation to paragraph 3 of Article 96 of Protocol 1, only a declaration made by an authority which genuinely fulfills the criteria of paragraph 4 of Article I can have the effects stated in paragraph 3 of article 96, and it is also necessary that the authority concerned be recognized as such by the appropriate regional intergovernmental organization. Active Participation towards Individual Communication 5.It is noteworthy to mention that the government actively accepted the individual communication procedures which allow individuals to file complaints directly to the treaty monitoring bodies. The ROK ratified the First Optional Protocol to the ICCPR, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and declared to accept the competence of the treaty monitoring bodies to receive and consider individual communications provided both in the Convention on the Elimination of All Forms of Racial Discrimination (CERD, Article 14) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, Article 22). But it is known that the government has decided to reserve its ratification of the Optional Protocol to the Convention on the Rights of Persons with Disabilities

6 (OPCRPD) for a longer period. The government stated this is due to the lack of domestic remedial procedures as to the rights addressed in the CRPD. In 2007, on the other hand, the ROK declared to accept the competence of the Committee against Torture to receive and consider individual communications. Considering the ROK s ratification of the First Optional Protocol to the ICCPR in 1990, it can be stated that the treaties were not properly examined, as the Convention Against Torture is lex specialis to the ICCPR, in particular, Article 7. At any rate, the issue of the implementation of the decisions of the treaty monitoring bodies after considering individual communications has risen and triggered an interesting debate, as the government has joined the individual communications procedures under the various international human rights treaties. 4 Enabling Legislation 6. In theory, international treaties are regarded as having the same effect as domestic law under the Korean Constitution, in that treaties can be directly applied to domestic courts of the ROK. It is understood that the Korean legal system adopts the monist approach to the international law. Therefore, it is not necessary to enact enabling legislation when the ROK becomes a party in general. However, there are cases where new legislation has to be enacted if there are conflicts between the treaties and domestic law. This is especially important in the system of criminal justice: based on the principle of nullum crimimen sine lege, nulla poena sine lege, if any treaties are to be applied to criminal cases, it is impossible to apply treaties unless adequate legislation is enacted. On the other hand, in my opinion, the ICESCR requires specific enabling legislation for State Parties to implement the obligations set forth in the Convention, yet the implementing legislation has not been enacted. In light of the treaty obligation on the criminal justice, the Special Act on the Statutory Limitations, etc., of the Crimes Destroying the Constitutional Order 5 was enacted in 1997 to comply with the Convention on the Prevention and Punishment of the Crime of Genocide. In 2007, new legislation to implement the Rome Statute for the Establishment of the International Criminal Court was enacted. Thus it could be said that the ROK can adequately punish the international crimes at the national level. 4 The issue will be discussed in more detail in paras of this report. 5 This law is related to the Gwangju Democratization Movement of In 1980, when citizens of Gwangju rose in protest demanding democracy, the military of that time sent soldiers and murdered a great number of civilians. When this incident was brought to the court 15 years afterwards, the statute of limitations made it difficult to penalize those responsible. This law was created in order to ensure that crimes destroying the constitutional order or genocide in the international law would not be subject to statutes of limitations.

7 Regarding the Convention Relating to the Status of Refugees and the 1967 Protocol, the Immigration Control Act was amended to provide for the refugee recognition procedures. III. Status and Legal Effect of IHRL in Domestic Law 6 A. Status of IHRL in the Domestic Legal System 7. Since its establishment in 1948, the Constitution of the ROK recognizes the legal effects of international law within the system of domestic law. Article 6 (1) in the Constitution states, Treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic law of the ROK. Regardless of this clear statement, there are different interpretations on what the phrase same effect as the domestic law means. Interpretation of the Korean Constitutional Law 8. When interpreting the phrase same effect as the domestic law, Korean scholars, especially international law scholars mostly agree that the Constitution sees international law and domestic law based on monism. Constitutional law scholars also agree with international scholars. However, there is the question of hierarchical order between domestic law and international law: when they conflict with each other, there is a question of which legal system should be applied. Most of the constitutional law scholars view the status of international law as being controlled by the Constitution in domestic courts. Thus, they claim the primacy of the Constitution. In other words, the Constitution prevails over international law. In their perspective, international treaties are subject to judicial review under the Constitution. On the other hand, most law scholars agree that the statute and international law are in the same status in the legal hierarchy. When the parity thesis is applied, the conflicts between the international and domestic law are resolved based on the principles of lex specialis and lex posteriori. 6 The legal status of the IHRL in Korea has already led to many debates that concluded that we would only review this matter. The IHL, however, does not have to be seen as a different legal perspective that the discussion in the report can be applied to the IHL.

8 Even so, international law scholars basically agree to this logic but claim that international human rights treaties codifying jus cogens and multilateral treaties should prevail over the domestic law. Position of the Korean Government 9. The position of the ROK government in relation to the international human rights treaties and domestic law is ambiguous. The government repeatedly explained the relation between the IHRL and domestic law when it submitted the state reports and was present before the treaty monitoring bodies. When the first state report on the ICCPR was examined in 1992, the government strongly argued the primacy of the Covenant over domestic law, except for the Constitution. It also stated that it would be unconstitutional if domestic law breached the ICCPR. 7 The ROK government, however, dramatically changed its position in 1996 and the new position can be clearly found in the first state report submitted to the Committee against Torture. In this report, like the ICCPR, the ROK government recognized the CAT has immediate effects and is directly applicable in domestic courts, but with one condition. The condition relied on the relation between the CAT and domestic law. The government stated that domestic statutes can prevail over the international treaties in some cases, based on the principles of lex specialis and lex posteriori. This is quite a different position from what the government stated to the Human Rights Committee in 1992, acknowledging the primacy of the ICCPR over the domestic law. 10. The status of international treaties in domestic legal systems became a problem when the government submitted the second state report on the ICCPR in At that time, the government dealt with this problem again, and stated that when the treaties are ratified and relevant law is enacted, treaties then prevail over the domestic law of Korea if conflict arises. At any case, domestic 7 UN GAOR, Hum. Rts. Comm. 45th Sess., 1154 mtg. p.3, para.8, Doc. CCPR/C/SR 1154 (July 20, 1992). The following is the original text of the ICCPR: Under article 6(1) of the constitution, the Covenant had the same effect as domestic law. He[the delegate] could not accept the claim that the guarantees contained in the Covenant might be overturned by subsequent domestic legislation, since such a suspicion underestimated the Republic of Koreas commitment to human rights and the increasing public awareness of the rights enshrined in the Covenant.... Moreover, since the principal rights enshrined in the Covenant were also embodied in the Constitution, any conflicting domestic legislation would be deemed unconstitutional 8 Initial Report of Sates parties due in 1996: Republic of Korea (May 30, 1996), U.N. Doc. CAT/C/32/Add. 1. para.20. The following is the original text of the relevant section: [t]herefore, when conflicts between domestic laws and the Convention arise, the lex posteriori rule and the principle of the precedence of special law shall be applied.

9 law cannot be at conflict with treaties; should conflict occur, that will be unconstitutional. 9 However, this statement itself is still obscure. The clause of when the treaties are ratified and relevant law is enacted, treaties then prevail over the domestic law of Korea if conflict arises, basically declares the principle of lex specialis. But the rest of the statement does not clearly state whether it would put more emphasis on lex specialis and lex posteriori. It is rumored that the government tried to avoid criticism by making obscure statements because it submitted the state report to the Committee against Torture, stating that domestic law can prevail over the treaties in some cases. The UN Human Rights Committee, after examining the report, expressed its concern over this matter in that Article 6(1), stipulating that domestic law and international law have the same effect, might be interpreted as allowing legislation enacted after the formal ratification of the Convention to take superior status As shown, the position of the ROK government on the status of international human rights treaties in the domestic legal system is quite ambiguous. The author believes that the government does not admit the point that the international human rights treaties prevail over the domestic law. The government has been found to not only place domestic and international (human rights) law on the same status, but also to believe that the principles of lex specialis and lex posteriori are applicable in the relation between the domestic and international law. The Reporter s View 12. Like the claims of some international law scholars in the ROK, I believe that international treaties should not prevail over the Constitution of a state, but it is reasonable to acknowledge the prevalence of international treaties over domestic statutes for the following reasons: first, many of the human rights protected by the international human rights treaties are derived from jus cogens norms and thus the ROK is obliged to protect human rights beyond the extent of the Constitution. Second, it is a 9 Second periodic reports of States parties due in 1996 : Republic of Korea. 20/08/98. CCPR/C/114/Add.1. para. 9.: In the event that a law enacted prior to the Covenant's ratification conflicts with its provisions, the Covenant has greater authority. No law enacted in the Republic of Korea may encroach on the rights provided in the Covenant; any such law would be viewed as unconstitutional. 10 Concluding observations of the Human Rights Committee: Republic of Korea. 01/11/99. CCPR/C/79/Add.114. para. 7. The following is the original text of the relevant section: The Committee is concerned that article 6 of the Constitution, according to which international treaties ratified by the State party have the same effect as domestic laws, has been interpreted as implying that legislation enacted after accession to the Covenant has status superior to that of Covenant rights.

10 violation of international law if the ROK ratifies legally binding treaties which are established by the international community to protect human rights yet limits the treaties by applying newly established domestic law or by applying the principle of lex specialis to the relation between the international law and domestic law. Lastly, this behavior is irreconcilable with the Constitutional principle of respecting international law. B. Effect of International Human Rights Law in Domestic Legal System 13. As addressed earlier, the Constitutional system of the ROK recognizes the same effect of the IHRL - in both the international human rights treaties and international customary human rights law in the domestic legal system. This means that domestic courts of the ROK, including the Constitutional Court, can apply the IHRL as a way to employ other domestic laws. Traditional Argument 14. Regarding the question of which ways the domestic effect of the IHRL should be recognized, selfexecuting treaties and direct applicability have often been addressed as relevant concepts. Then, in which case would a treaty be regarded as a self-executing treaty? International law scholars of the ROK and Japan have agreed that a treaty would be considered self-executing if it satisfies the following conditions. Both subjective intention and objective condition are needed in order for a treaty to be self-executing. 11 As a requisite of subjective intention, a state party of the treaties should intend to directly apply international treaties to its legal system. The objective condition requires that if a treaty is to be self-executing, it does not need special arrangement to implement it. Therefore, a treaty should secure as much specificity and concreteness as domestic law, although there is a counter argument that subjective judgment is inevitable in analyzing to what extent specificity and concreteness satisfy the objective condition. 12 Attitudes of the Government of the Republic of Korea 15. The government of the ROK officially mentioned the direct applicability of the international human rights treaties during the process of submitting the periodic reports and being examined by the 11 Yuji Iwasawa, International Law, Human Rights, and Japanese Law, Oxford University Press, 1999, pp See Chan-Un Park, Study on Domestic Effect and Application of International Human Rights Treaties, Korean Lawyers Association Journal, Vol. 609, June 2006, pp

11 UN human rights treaty monitoring bodies. The main point of the government was similar to what it stated previously: Article 6(1) of the Constitution recognizes the international treaties as having the same effect as domestic law, and treaties immediately have such effect without special legislation. In 1991, the Korean government clearly stated in the first state report under the ICCPR declaring that the ICCPR declared and ratified with the consent of the National Assembly has the same effect as the domestic law without special legislation. 13 This was repeatedly stated in the second state report as well. 14 This statement can also be found in the CAT 15 and the CERD. 16 What is interesting here is that this statement is nowhere to be found in the ICESCR or in other human rights treaties that are similar in nature to the ICESCR (like the CRC). It is rumored that the government only conceives direct applicability in human rights treaties which have the same legal nature of the ICCPR. For treaties with the nature of the ICESC, the government seems to take the treaties as being simply programmatic; this implies that treaties of the ICESCR nature require special legislations for implementation. IV. Reality of the International Human Rights Law and the International Humanitarian Law Trials A. General Status 16. It is hard to find cases which directly applied or invoked international human rights treaties in the domestic courts of the ROK. This is probably because the judicial branch is reluctant to recognize the 13 UN Doc. CCPR/C/68 Add.1, para.5 (July 31, 1991), reprinted in Official Records of the Human Rights Committee (91/92) 205. The original text is as the following: Since article 6(1) of the Constitution provides that [t]reaties... shall have the same effect as the domestic laws of the Republic of Korea, the Covenant, which was ratified and promulgated by the government with the consent of the National Assembly, has the same effect as domestic laws without the enactment of separate domestic legislation. 14 Second periodic reports of States parties due in 1996 : Republic of Korea. 20/08/98. CCPR/C/114/Add.1, para Initial reports of States parties due in 1996 : Republic of Korea. 30/05/96. CAT/C/32/Add.1, para Eighth periodic report of States parties due in 1994 : Republic of Korea. 23/11/95. CERD/C/258/Add.2, para. 9. In here, the Convention (Convention on the Elimination on All Forms of Racial Discrimination) employs the expression directly applicable. The following is the original text of the relevant section: 9. Accordingly, the Convention on the Elimination on All Forms of Racial Discrimination has become part of domestic laws, and is directly applicable and can be invoked in the courts of the Republic of Korea.

12 normative nature of the IHRL, due to its lack of understanding. However, international human rights norms have often been discussed in the past 10 years, and recently, certain decisions have been made by actively interpreting the IHRL. This trend is mostly found in the lower courts. After all, cases in which the judicial branch (including the Constitutional Court and general courts) acknowledges rights of plaintiffs by directly applying international human rights standards, including treaties, are rarely to be found. 17. There are two methods of applying IHRL that the ROK judicial branch can adopt: direct application and indirect application. Direct application is to directly apply the IHRL as trial norms. This method usually can be taken when the domestic law does not regulate certain parts and the IHRL is invoked as complementary to the domestic law. For instance, before the initial appearance system was introduced, Article 9(3) of the ICCPR was not domestically implemented. During this time, a judge could have heard the accused according to the Article 9(3) before the warrant is issued, or the Article 9(3) could have been invoked directly for the review of the legality of the case that the warrant is issued without such procedure. Furthermore, this application methodology is to be applied when the IHRL is in conflict with the domestic law. When the domestic law violates the IHRL, the domestic law can be declared unconstitutional for violation of the constitutional principle of respecting international law, recognizing the prevalence of the IHRL over the domestic law by adopting this method. Therefore, this method can be adopted by the Constitutional Court. This methodology basically is the same as the argument that international law and the Korean Constitution are of the same status in the legal system. In this regard, the principles of lex specialis and lex posteriori applied to the conflict between international law and domestic law should not to be adopted. 18. Indirect application is a method which employs the IHRL as a standard to interpret the basic rights within the Constitution. This method intends to indirectly incorporate the IHRL as it requires the human rights norms within the Constitution to be accorded with the IHRL when applying and interpreting the Constitution. Thus, it can be called either as principle of consistent interpretation or principle of inference in accordance with international law. In fact, the basic rights set out in the Constitution reflect the rights guaranteed under the international human rights treaties. Based on the principle of international peace and the principle of respecting international law under the Constitution, it is not strange to employ various aspects of the IHRL as standards in interpreting the Constitution. In this way, the IHRL practically obtains the same status as the Constitution. However,

13 if the IHRL is logically immiscible with the Constitution, there could be a problem that the norms of the IHRL cannot be adopted during the Constitutional trials. In addition, whether the IHRL will be applied or not will be under the discretionary decision of the Constitutional Court. It is viable and also accepted by judges without opposition, that the norms of the IHRL are adopted as complementary means to interpret the domestic law as long as the domestic law and the IHRL are not in conflict. B. International Human Rights and Humanitarian Law in the Korean courts: Cases of Application 19. Here are the leading cases of the applications of the IHRL and the IHL in the Supreme Court and the Constitutional Court since 1990 in the ROK. [Case of Application in the General Courts] Supreme Court, March 26, Judgment 96 DA Main Points of the Case and Judgment This case was a civil lawsuit against the government by the plaintiff, Mr. Jongkyu Son, leader of a labor union, who was found guilty under paragraph 2, Article 13 of the Labor Dispute Mediation Act (This law has since been abolished). He filed a complaint with the UN Human Rights Committee, 17 which decided the violation of the rights of Mr. Son by the ROK. Subsequently Mr. Son, based on the UN Human Rights Committee s view, filed a lawsuit against the ROK for compensation. The Court made its decision stating that under the Labor Dispute Mediation Act, the provision that prohibits the participation of the third party is made to bar the participation of a third party that might have the purpose to influence, stimulate, interfere, instigate or affect the relevant actors in disputes. This provision allows only the relevant parties to participate in the disputes in order to maintain the independence of labor strike settling, and to keep the peace in the industry which constitutes the public order. Therefore, it can not be considered the ROK s violation of the freedom of expression guaranteed under the Article 19 (2) of the ICCPR to which the ROK is a party. The Court also stated that Article 2(3) of the ICCPR does not establish the right for individuals to claim remedies, including compensation from the state party of the ICCPR. Evaluation 17 Communication No. 518/1992(UN Doc., 1995), CCPR/c/54/D/518/1992.

14 This case is significant since it actually dealt with the possibility of direct application of the international human rights treaties in the domestic court. The Supreme Court denied the possibility of direct application by interpreting that Article 2(3) of the ICCPR set formally the obligations among the state parties but it does not confer rights to individuals. That is to say, the Court basically denied the possibility of direct applicability because the ICCPR did not have objective factors 18 for direct application in the domestic courts. The Court also interpreted Article 19 of the ICCPR in this case, stating that the punishment of the plaintiff did not constitute violation of the freedom of expression. This judgment was based on the possibility of direct application of Article 19. Supreme Court, July 15, Judgment 2004 DO 2965 Main Points of the Case and Judgment In this case, the defendant was found guilty in both the first and second instances for refusing his duty to serve in the military under the Military Service Act. His refusal was based on his Jehovah s Witnesses belief. The Court decided on whether the ROK had violated the rights listed in the ICCPR. The court clearly stated that conscientious objection cannot be derived from Article 19 (freedom of conscience) and Article 20 (freedom of religion) of the Constitution. In addition, the Court stated that Article 18 of the ICCPR protects rights within the same extent as the Constitution, so the right to be exempted from the duty to serve in the military is not recognized and the rejection of conscientious objection is not in breach of the ICCPR. Evaluation This case is understood as reiterating the position of the Korean courts, denying the conscientious objection that is extensively accepted within the UN human rights organs. However, the reasoning of the Court shows the possibility of direct application of the IHRL through its position that the ICCPR holds the status of domestic law, and violations of the ICCPR can be the ground for appeal. Supreme Court Dec 27, 2007, Judgment 2007 DO 7941 Main points of the Case and Judgment 18 In light of the meaning of this judgment, it can be concluded that the content and format of the provisions of a treaty should aim to establish specific rights for individuals for any international human rights treaties to be directly applied.

15 In this case, the defendant was found guilty in both the first and second instances for violating the Military Service Act, Article 88(1) 19 by refusing his duty under the law to serve in the military, for his religious creeds in the Jehovah s Witnesses. He then appealed to the Supreme Court. The defendant argued that Article 18(1) protects conscientious objection to the military service, and his refusal to the enlistment was based on his religious belief, which could fall into the justifiable cause category provided in the provision. The Supreme Court dismissed the appeal, stating that conscientious objection to military service is not protected by the ICCPR. The following are the main reasons of dismissal; firstly, no provisions of the ICCPR, including Article 18, stipulate the right to object to military service based on religious adherence. Though it is true that there were discussions in the drafting process as to whether or not conscientious objection to military service should be included in Article 18, most of the states that participated were negative and reluctant. Secondly, the ICCPR does not seem to require the State parties to recognize conscientious objection, reading Article 8(3)(c)(ii) 20, which stipulates one of the exceptions to forced labor. Even if conscientious objection could be protected by Article 18(1), neglecting to introduce an alternative service for conscientious objectors does not constitute a violation of the ICCPR per se. Thirdly, legislators of State parties to the ICCPR have extensive discretion on whether objectors should be exempted or allowed alternative military service of a civilian nature. Evaluation This case, compared to the other IHRL related cases at the Supreme Court, has its distinctive significance. First, reasons of appeal and main issues only lie on whether there was any violation of the ICCPR or not. Considering that the previous cases related to the IHRL were main issues are on the domestic law, this is a landmark case. Second, this case proceeded on the premise that violations of human rights treaties can be a reason to appeal. That is, this proves that a violation of the ICCPR was dealt with as having the same effect as a violation of domestic law. 19 Article 88 of the Military Service Act (Evasion of Enlistment) (1) Persons who have received a notice of enlistment in the active service or a notice of call (including a notice of enlistment through recruitment) and fail to enlist in the army or to comply with the call, even after the expiration of the following report period from the date of enlistment or call without any justifiable reason, shall be punished by imprisonment for not more than three years. 20 Article 8(3)(c)(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors.

16 Third, although the Supreme Court decided that the refusal of conscientious objection does not violate the ICCPR, its reasoning showed a certain level of development. It is clear that the Supreme Court applied Article 31 and 32 of the Vienna Convention on the Law of Treaties to interpret the ICCPR. It is evident that in accordance with Article 32 of said Convention, the Court reviewed the documents of the travaux prépratoires, which could be a supplementary means of treaty interpretation, and also tried contextual and systematic interpretation. Fourth, the Supreme Court referred to the term consistent treaty interpretation. This will be a crucial guideline for the lower courts in application of international law for their trials. Cases related to Refugees General Aspect It was not until 2000 that refugee cases were addressed at the Korean courts. However, many refugee cases have been dealt with. This is because since 2000 a large number of applications for refugee status have been submitted, many of which were rejected by the government. After all, judicial procedure is often chosen as a last resort in the refugee recognition procedures. Refugee cases are proceeded as administrative litigations and therefore, the first instance is under the jurisdiction of the Seoul Administrative Court, the second instance under the Seoul High Court, and the final instance under the Supreme Court. Here are the recent cases decided by the lower courts and the Supreme Court as to the nature of the refugee status recognition. The Legal Nature of Refugee Status Recognition in the Judgments of the Lower Courts 21 The lower courts of the Administrative Court make the following judgment on the nature of refugee status recognition. The Refugee Convention does not oblige the state parties to grant refugee status and asylum (Article 12(1) of the Refugee Convention), and it is an accepted perspective that whether a state would grant protection to refugees or not is solely at the sovereign discretion of state parties. 21 Referred the following cases: Seoul Administrative Court Judgment 99 KU 9990; Seoul Administrative Court Judgment 2002 Guhap 23632; Seoul Administrative Court Judgment 2004 Guhap 40051; Seoul Administrative Court Judgment 2005 Guhap 39256; Seoul Administrative Court Judgment 2006 Guhap 25216; Seoul Administrative Court Judgment 2006 Guhap 26240; Seoul Administrative Court Judgment 2006 Guhap 39703; Seoul Administrative Court Judgment 2006 Guhap 26233; Seoul Administrative Court Judgment 2006 Guhap 37370; Seoul High Court Judgment 2006 NU

17 On the other hand, the Article 76-2(1) of the Immigration Control Act states that it only recognizes a foreign person as a refugee when he or she applies for refugee status, but the Act does not provide any provision on what sort of domestic status will be granted to the recognized refugee. However, it would be a proper interpretation that the Act certainly is willing to provide adequate domestic status for the recognized refugees within a certain extent. Therefore, it cannot be seen as the defendant (Ministry of Justice) only examining whether applicants meet the refugee criteria under the Refugee Convention (there is no reason to acknowledge the defendant s discretion here); rather, the defendant is given a certain level of discretion and the act of refugee status recognition is actually meant to establish a certain right for applicants who meet the criteria for refugee. Therefore, when there is an application for refugee status recognition, the defendant should decide whether an applicant meets the criteria for refugee based on Article 76-2(1) of the Immigration Control Act, and if so, the defendant should exercise his or her adequate discretion on whether he or she is to be granted asylum, with the adequate right to stay or to be deported to a third country. Evaluation The attitude of the lower court judgments has the following problems. Firstly, the courts believe that the act of refugee status recognition has to go through two steps. The first step is to decide whether a person meets the criteria for refugee, and the second step is to conclude whether a person needs protection. According to the courts interpretation, the first step is binding, and the second step is discretional. However, the courts certainly misunderstood the Korean legal system and the international refugee law. The Korean Constitution recognizes the international treaties as having the same effect as the domestic law, and the Refugee Convention has the same effect with the domestic law. Thus, if one is recognized as a refugee, his or her status should be immediately regulated according to the Refugee Convention by the government, even if there is an absence of a provision specifying his or her status in the Korean law. Neither the Korean Constitution nor the international refugee law stipulates that giving legal status to recognized refugees is a discretional action (sovereign action). The courts misunderstood this point. Secondly, the courts reasoned from Article 12 of the Refugee Convention, but this cannot be the basis of their position. Despite the fact that this Article provides for the governing law with regard to the personal status of refugees, the courts interpret it as a provision for States parties to make discretional decisions on which status will be given to recognized refugees. Again, the court apparently misunderstood the international refugee law.

18 The Legal Nature of Refugee Status Recognition in the Judgment of the Supreme Court Recently, the Supreme Court has supported the lower court s decisions to dismiss the revocation of an order rejecting the request for refugee status recognition. However, looking at the decisions of the Supreme Court, it can be perceived that the Supreme Court has very different perspectives on the legal nature of the refugee status recognition. The following is an excerpt of the decision made by the Supreme Court. Under Article 2, Item 2-2 and Article 76-2(1) of the Immigration Control Act, and the Refugee Convention and its Protocol as a whole, the Minister of the Justice should recognize a foreigner, who is staying in the ROK and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unable or unwilling to avail himself to the protection of the country of his nationality, as a refugee upon the foreigner s request. Seoul High Court Feb 14, 2006 Judgment 2005 NA Main Points of the Case and Judgment This case was a civil lawsuit brought by the family of Prof. Jong-gil, Choi (Department of Law, Seoul National University) who was suspected of espionage, and died in 1971 during the interrogation by the KCIA (Korea Central Intelligence Agency). His family brought this lawsuit against the government after 30 years of his death. Prof. Choi s family had argued that he was killed by torture but it was not verified until the Presidential Truth Commission on Suspicious Death, a special national institution, found the truth in 2002 that Prof. Choi was actually killed by the public force. In this case, the Seoul High Court disregarded the praescriptio extintiva (extinctive prescription) claimed by the government and acknowledged that the government was responsible and should compensate for his death. The following is an excerpt of the ruling, which is pertinent to the application of the IHRL. Review on the Rules of International Law which Excludes Statutory Limitation in Grave Human Rights Violations 22 Referred the following cases: The Supreme Court Judgment 2007 DU19539; The Supreme Court Judgment 2007DU6526; The Supreme Court Judgment 2008 DU3661.

19 Article 7 of the International Covenant on Civil and Political Rights, which came into effect on July 10, 1990, states that No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. In order to embody this principle of human rights protection, the International Criminal Court dealing with human rights crimes excludes statutory limitation (this is the standpoint of the ICTY and the ICTY, which are for the Former Yugoslavia and Rwanda, respectively, for the criminal cases against the human rights violators) and the UN Human Rights Committee recommends that grave violations of the civil and political rights committed under the military governments of states should be prosecuted as long as possible. It is a general principle of the international law not to apply statutory limitation in case of human rights violations including crime against humanity, war crime, and torture. This principle of the international law is about a discussion of the statutory limitation; however, this should be considered in the same manner when applying praescriptio extintiva in civil lawsuits against the inhumane crimes committed by a state. Evaluation The abovementioned part where the Korean Court recognized a principle of the international law has the following significance. First, as one of the reasons to exclude praescriptio extintiva in the civil lawsuit cases, the Court examined the international human rights treaties, and the Rome Statute of the International Criminal Court as tools for interpreting the domestic law. This is indeed meaningful since it indicates the indirect application of the international law. Second, it is epochal that the Court enunciated, it is a general principle of the international law to exclude praescriptio extintiva in crimes against humanity. Considering the fact that the ROK did not ratify the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, and knowing that it is too early to consider the Convention itself as a validation of the international customary law, the way the Court perceived this case is indeed significant. Third, this was unprecedented in a sense that the Court applied the principle of Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity to the praescriptio extintiva in the civil lawsuit cases. Considering the Rome Statute, to which the ROK is a party, does not acknowledge retroaction of non-applicability of the statutory limitation, the attitude of the Court was indeed revolutionary.

20 [Cases of Application in the Constitutional Court ] Constitutional Court. Jan 28, 1992 Judgment 91 HUNMA 111 Main Points of the Case and Decision The Constitutional Court decided on a situation in which the detained accused had to meet his or her legal counsel in the presence of an investigator or a prison officer until the early 1990s, according to the Penal Administration Act. At that time, confidential interview was not secured when lawyers interviewed the detained accused, and prison officers or investigators could even monitor the interview. The plaintiff of this case argued that the monitoring by investigators or prison officers of the meeting with legal counsel violated his right to assistance of legal counsel guaranteed under Article 12(4) of the Constitution. Regarding this argument, the Constitutional Court stated that free and uninhibited contact with his or her counsel is the most important component of the right to receive attorney s assistance for the detainees. Thus, this right cannot be limited at any time under any circumstance including national security, public order, and public welfare. To support this argument, the Court invoked principle 18(4) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted on Dec 9, 1988 during the 43 rd UN General Assembly. It states that Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official. Evaluation This case is one of the Constitutional Court s representative decisions that profoundly contributed to improve human rights during the early 1990s. This was significant because the Court invoked the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, which is considered one of the non-legally binding soft laws, as a tool with which to construe the Constitution. This was an example of indirectly applying the soft law norms of international human rights standards. Constitutional Court April 1, 1991 Judgment 89 HUNMA 160 Main Points of the Case and Decision This was the first case since the establishment of the Court in which the Constitutional Court applied the IHRL in interpreting the Constitution. A person who was slandered by a magazine company started a civil lawsuit demanding the magazine company to provide compensation accompanied by an advertised apology, according to Article 764 of the Civil Act. This issue was whether the order to