헌법재판소의 국제인권규범 활용에 대한 검토

Abstract

Since the World War, international cooperation has been made to preserve the peace and interests of the human community, and representative results include the creation of international organizations and the establishment of international human rights treaties and norms(conventions). In particular, as the issue of human rights protection is recognized as a significant governmental matter, each country is striving to find a means to secure the legal effectiveness of international human rights norms within the country. However, given that the contents of international human rights norms are generally similar to the contents of the constitutional basic rights of the countries that accepted them, it has been discussed that it is necessary to incorporate international human rights norms into the Constitution and recognize the same effect as the Constitution (or constitutional basic rights). However, there is a counterargument that the constitutionalization of international human rights norms cannot be evaluated as desirable because it could undermine the foundation of the national legal system and people’s sovereignty. In addition, it may be questioned whether the constitutionalization of international human rights norms must be premised in securing the legal effectiveness of international human rights norms and their usefulness in constitutional adjudication. This article, focusing on the actual cases of the Constitutional Court of Korea, reviewed what legal and systematic status the Constitutional Court has recognized in international human rights norms and how they have been used in actual adjudication. According to this review, it seems the Constitutional Court sometimes directly used international human rights norms as constitutional norms(standard of review), but a close analysis of related decisions shows that the Court does not use international human rights norms as a direct criterion for constitutional adjudication and uses them as supplementary material for interpreting constitutional basic rights and principles. In particular, the Constitutional Court shows a pragmatical attitude of using it as a supplementary material for constitutional interpretation without judging the legal status of international human rights norms. The Constitutional Court's strategy of using international human rights norms as significant material for constitutional adjudication without shaking the legal system is a dynamic constitutional interpretation process that can localize the universal content of international human rights norms while maintaining the public autonomy of members of the legal community. Through this, international human rights norms will be able to secure a balance of universality and locality, legitimacy and effectiveness, abstraction and specificity, moral legitimacy and democratic-political legitimacy. However, the Constitutional Court is generally considered passive in using international human rights norms in constitutional interpretation, and, in reality, only a few international human rights norms are used, and furthermore, there is no in-depth argument for justification of use of international human rights norms in cases, so it is confirmed that international human rights norms are used superficially and decoratively. In order to improve this, it is necessary to consider preparing a system or practice that actively refers to and properly considers international human rights norms in constitutional adjudication. Above all, it is necessary to fully review related international human rights norms and discussions in the process of constitutional interpretation and establish a faithful method of argumentation of connection and integration that ultimately converts discussions of international human rights norms into constitutional discourse.