외국인의 인권

Abstract

In 2001, the Korean Constitutional Court recognized the fundamental rights of non-citizens under the Korean Constitution by referencing them as “human rights.” The landmark decision had a significant meaning that the legal protection under the Constitution would be extended to non-citizens despite the textual limitations of the Constitution, which could have been interpreted that it confers fundamental rights only to citizens. Over the past around twenty years since then, however, the Court, in its rulings on the issues of migrants and refugees, retreated from protecting the rights of non-citizens on equal footing as citizens.
 Based on the review of the rulings since 2001, this article criticizes that the Court has rendered arbitrary and incongruent decisions that allow, as well as normalize, discriminatory treatment against migrants and refugees. The Court decided to grant constitutional protection to non-citizens only when the Court recognizes certain rights as a “human right,” as opposed to “citizens’ rights,” but it did so without any reference to specific criteria for judgment including international human rights law. The Court then relaxed the standard of review on constitutionality when the issues concern the restrictions against non-citizens, by explicitly stating that the level of constitutional protection for non-citizens may not be same as for citizens.
 In legitimizing the restrictions of fundamental rights against non-citizens, the Court relied on the assumption that foreigners are presumptively potential ‘illegal migrants’ who would harm social order. It also considered that the interests and benefits of citizens make valid reasons to justify the restrictions on non-citizens’ rights. This article discusses the irony how the Court in its rulings has undermined the principles of human rights while referencing to “human rights” as the basis of recognizing the constitutional rights of non-citizens.