The role of international human rights law in South Korean constitutional court practice: An empirical study of decisions from 1988 to 2015

Abstract

While both international human rights law and constitutional law protect fundamental rights of individuals, it remains a question to what extent and for what purpose constitutional justice uses IHR instruments. This article offers empirical research on the use of IHR instruments with a case study of South Korea. Quantitative and qualitative analyses were conducted for all sixty-five decisions from the Constitutional Court of Korea that mentioned IHR instruments from 1988 to 2015. Findings show that IHR instruments played a supportive but limited role in those decisions. In terms of their role in revoking domestic laws, IHR instruments were supportive but not conclusive in reaching final conclusions. The CCK showed resistance in cases of labor rights and those concerning the national security threat from North Korea despite international pressure. In the same vein, it was not statistically supported that decisions mentioning IHR instruments would have a different rate of winning a case than decisions that did not mention them. IHR instruments, however, do have a positive effect on the CCK decisions. They enriched constitutional debate, providing persuasive authority in various contexts. IHR instruments were more successfully incorporated in the CCK decisions when they were indirectly applied as interpretative tools to the Korean Constitution than when they were directly applied. The findings show guidance and possibilities for the positive use of IHR instruments in national constitutional courts. Meanwhile, resistance to IHR law in deeply rooted issues suggests that we need other methods to harmonize IHR law and domestic law.