[Editor’s Note: This is the third and final entry in our symposium on the “30th Anniversary of the Constitutional Court of Korea.” The introduction to the symposium is available here, Part I is available here, and Part II is available here.]
—Yoomin Won, JSD candidate, Stanford Law School
Korea is more global than ever, which is clearly exemplified by the ongoing influence of international human rights law (IHRL) on Korean constitutional law. “Since Koreans had little experience in the western legal culture, Korea has consulted the experience of the western countries for judicial reforms,” noted Justice Ilwon Kang of the Constitutional Court of Korea. “It became a kind of tradition to consult the international and foreign law for the adjudication of cases in the Korean courts including the Constitutional Court.”
This Post analyzes how the Constitutional Court has incorporated IHRL since 1988. The 15 decisions in which the Court referenced IHRL while invalidating prior Korean law are examined through the lens of each of the five six-year presidential terms of the court (1988–2018).
1988–1994: Challenge of Authority
During the term of its inaugural president, Justice Cho Kyu-kwang (September 1988–September 1994), the Constitutional Court mentioned IHRL in three cases concerning the unconstitutionality of a statute. In 1989 and 1991, the Court made note of the Universal Declaration of Human Rights in recognizing the “right to know,” although the right was not enumerated in the Korean Constitution. In 1991, the International Covenant on Civil and Political Rights (ICCPR) was accepted as a ground for the right of conscience. Freedom of expression and the right of conscience, which are essential to the foundation of a democracy, were expanded. By broadening the concept of the right to information in particular, the Court enabled public access to government records—the first legal step to challenging a ruling authority.
1994–2000: Gender Equality
During its second term, under the presidency of Justice Kim Yong-joon (September 1994–September 2000), the Constitutional Court mentioned the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in two decisions in which it found a law unconstitutional. The Court held in 1999 that the practice of allowing veterans 3 or 5 percent of extra points in each subject test of civil service examinations violated women’s and handicapped people’s right to equality and right to hold public office. One year later, it explained how the National Assembly’s revision of a patriarchal lineage clause in the Nationality Act coincided with Korea’s embrace of the CEDAW’s male-female equality clause. In these two decisions, the Court took note of IHRL in indicating that gender equality has been incorporated into the Korean legal order as a constitutional value.
2000–2006: Criminal Justice
During the period of the third president, Yun Yong-chul (September 2000–September 2006), the ICCPR appears in three court decisions on criminal justice. When ruling on a statutory provision in 2003 permitting the military police to extend the detention period, the Constitutional Court considered whether Article 9(3) of the ICCPR prohibits lengthy detention by police. In 2004, the Court addressed a prosecutor’s denial of a criminal suspect’s request for an attorney; the suspect was not in custody during his interrogation. The concurring opinion in that decision mentioned Article 14 of the ICCPR. Also in 2004, the Constitutional Court, adverting to Articles 7 and 10 of the ICCPR, found that barring inmates from exercising as part of their disciplinary sanction was a violation of the Constitution. The Court cited IHRL to provide supplementary grounds for rights to criminal justice.
2007–2013: Social Rights for Noncitizens
When Justice Lee Kang-kook (January 2007–January 2013) served as the fourth president, IHRL manifested itself on four occasions in which the Constitutional Court ruled against Korean labor law, finding it unconstitutional. In 2007, the Court held unconstitutional the Ministry of Labor’s regulations that selectively applied the Labor Standard Act and thus infringed upon the right to equality for foreign trainees of industrial technology. The Court, stating that the International Covenant on Economic, Social and Cultural Rights (ICESCR) should be considered when interpreting the Constitution, cited Articles 2, 4, and 7 of the ICESCR in expansively interpreting the social rights of foreign trainees of industrial technology as a matter of constitutional law. But it is unclear how much the Court relied on IHRL in three other decisions: The Court simply concluded that fundamental rights had been violated without addressing head-on the possible breach of IHRL, although the complainants had forcefully argued IHRL violations.
2013–2017: Rights for the Disenfranchised
Under Justice Park Han-chul (April 2013–January 2017), the fifth president, the Constitutional Court mentioned IHRL in two rulings. In 2014, the Court, citing the European Convention on Human Rights and its case law, declared that the ban on prisoners’ and probationers’ voting was unconstitutional. In 2016, Article 10(1) of the ICCPR undergirded a concurring opinion in the Court’s decision that confining prisoners to detention center rooms without the required minimum space violated the Constitution.
2017–2018: Alternative Service
In its sixth presidential term, under Justice Lee Jin-sung (November 2017–September 2018), the Constitutional Court has thus far issued one IHRL-related ruling. In a 2018 landmark decision, the Court, referencing Article 18 of the ICCPR, struck down a provision of the Military Service Act that denied alternative service for conscientious objectors.
The Constitutional Court of Korea has invoked IHRL in a number of cases. Although it has rarely been a decisive factor in the Court’s unconstitutionality holdings, the Court has relied on international law in interpreting the Constitution and in strengthening its constitutional grounds. In its more recent decisions, the Court, engaging in global judicial discussions, has made generous references to international case law, treaty bodies, and foreign courts.
The appearance of IHRL in the Constitutional Court’s rulings reflects social and legal changes in Korean society. Beginning in the its early years, the Court had a clear objective of making the law on the books closer to the law in action in a democratic Korea, and it employed IHRL to accomplish that goal. The Constitutional Court’s widespread, evolving use of IHRL since 1988 shows how Koreans have transformed their once “impossible” country into a globally enviable functioning democracy.
Suggested Citation: Yoomin Won, I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part III: The Constitutional Court of Korea’s Jurisprudence: Influence of International Human Rights Law, Int’l J. Const. L. Blog, Mar. 12, 2019, at: http://www.iconnectblog.com/2019/02/i–connect-symposium:-the-30th-anniversary-of-the-constitutional-court-of-korea—part-iii:-the-constitutional-court-of-korea’s-jurisprudence:-influence-of-international-human-rights-law
 Kang Il-Won [sic], “The Constitutional Globalization in Korea,” in Global Constitutionalism and Multi-Layered Protection of Human Rights 241 (SNU Asia–Pacific Law Institute ed., 2016).
 Constitutional Court [Const. Ct.], 88Hun-Ma22, Sept. 4, 1989, (1 K.C.C.R. 176) (S. Kor.); 90Hun-Ma133, May 13, 1991, (3 K.C.C.R. 234) (S. Kor.).
 Constitutional Court [Const. Ct.], 89Hun-Ma160, Apr. 1, 1991, (3 K.C.C.R. 149) (S. Kor.).
 Constitutional Court [Const. Ct.], 98Hun-Ma363, Dec. 23, 1999, (11-2 K.C.C.R. 770) (S. Kor.).
 Constitutional Court [Const. Ct.], 97Hun-Ka12, Aug. 31, 2000, (2000 D.K.C.C. 52) (S. Kor.).
 Constitutional Court [Const. Ct.], 2002Hun-Ma193, Nov. 27, 2003, (2003 D.K.C.C. 242)
 Constitutional Court [Const. Ct.], 2000Hun-Ma138, Sept. 23, 2004, (2004 D.K.C.C. 75) (S. Kor.).
 Constitutional Court [Const. Ct.], 2002Hun-Ma478, Dec. 16, 2004, (2004 D.K.C.C. 206) (S. Kor.).
 The Constitutional Court’s presidency remained vacant from September 2006, when Justice Yun Yong-chul finished his term as the third president, to January 2007, when Justice Lee Kang-kook took over as the fourth president. For President Roh Moo-hyun of South Korea had to withdraw his earlier nomination of Justice Jeon Hyo-sook in the face of the opposition parties’ objection at the National Assembly.
 Constitutional Court [Const. Ct.], 2004Hun-Ma670, July 30, 2007, (2007 D.K.C.C. 166) (S. Kor.).
 Constitutional Court [Const. Ct.], 2008Hun-Ba157, Dec. 28, 2010, (2010 D.K.C.C. 441) (S. Kor.); Constitutional Court [Const. Ct.], 2006Hun-Ma788, Aug. 30, 2011, (2011 D.K.C.C. 121) (S. Kor.); Constitutional Court [Const. Ct.], 2011Hun-Ka5, Dec. 27, 2012, (2012 D.K.C.C. 124) (S. Kor.).
 After Justice Lee Kang-kook’s presidency of the Constitutional Court ended in January 2013, Justice Lee Dong-heub was nominated as his successor; however, he withdrew his nomination in the face of controversies. The Court’s presidency was not filled until April 2013, when South Korean President Park Geun-hye’s nominee, Justice Park Han-chul, won the National Assembly’s confirmation.
 Constitutional Court [Const. Ct.], 2012Hun-Ma409, Jan. 28, 2014, (2014 D.K.C.C. 113) (S. Kor.). The Constitutional Court mentioned IHR in another decision, but IHRL did not necessarily support the complainants. See Constitutional Court [Const. Ct.], 2013Hun-Ba129, May 28, 2015, (27-1B K.C.C.R. 251) (S. Kor.).
 Constitutional Court [Const. Ct.], 2013Hun-Ma142, Dec. 29, 2016, (2016 D.K.C.C. 228) (S. Kor.).
 When the term of Justice Park Han-chul as president of the Constitutional Court expired in January 2017, South Korean President Park Geun-hye could not nominate a new court president because the National Assembly had voted to impeach her in December 2016, a decision that the Court upheld in March 2017. In the interim between permanent court presidents, i.e., February–November 2017, Justice Lee Jung-mi and Justice Kim Yi-su served respectively as acting court president in February–March 2017 and in March–November 2017. In November 2017, the current president of South Korea, Moon Jae-in, successfully nominated Justice Lee Jin-sung as the Constitutional Court president. Lee Jin-sung, who had been serving on the Court for five years as a justice before he became president, stepped down from the Court in September 2018 because his allotted total court term of six years ended.
 Constitutional Court [Const. Ct.], 2011Hun-Ba379, June 28, 2018, (30-1B K.C.C.R. 370) (S. Kor.).