한국에서의 자유권규약 이행 현황에 대한 논고

Abstract

This is to deal with non-fulfillment of the obligation to give effect to the views of Human Rights Committee(HRC) that there has been a violation of the International Covenant on Civil and Political Rights(ICCPR) and the State party should provide an effective remedy for the authors who submitted communications to HRC. HRC has recommended that the Korean government provide the authors of the communications with an effective and enforceable remedies, including compensation, but the government has never compensated since there is no way to make reparation in these cases under the Korean legal system. To solve this problem, it is said that the act should be made for the government to compensate them. But the controversy around this issue shows that the enactment is not easy to realize. The creation of the act might also cause people to submit an communication to HRC much more than before, even though nobody says like that. In addition, compensation is not helpful to resolve an essential problem that the Sate party should avoid similar violations of the Covenant in the future and make Korean domestic law be consistent with it. The will of the government is an important element for it, but not sufficient to reconcile Article 88, paragraph 1 of the Military Act or Article 7 of the National Security Law with the Covenant without the assistance of the National Assembly or the Constitutional Court. In short, we need achieving the consensus of our society to get rid of the discrepancy between the Covenant and Korean laws concerned. HRC considered three periodic reports of the Korean government and adopted the concluding observations each time, which revealed that the inconsistency between both systems would not limited to these above cases. Even if the government coordinate the Military Act or the National Security Law afterwards, another violation cannot be prevented, which will persistently cause the government to fail to fulfill the views of HRC. On the other hand, the reporting system of the Covenant works in Korea to secure the rights in the Covenant. For example, the government has recently amended the Criminal Procedure Act to secure that the person arrested or detained shall be brought promptly before a judge. Now I wonder why the government accepted the protocol to allow an individual communication and whether individual communications are more effective than its reporting system to assure the rights of the Covenant in Korea. Korea amended the Constitution in 1987 and established the Constitutional Court, which allow an individual to make an constitutional complaint, which is said to be an effective remedy to protect human rights. National Human Rights Council has also been instituted in 2001. Korea has constructed its own human rights mechanism. The reporting system of the Covenant and our national human rights mechanism is the effective device to secure human rights and realize the Covenant in Korea without the conflicts of both systems. For these reasons, I make a suggestion that considering our experience we review our methodology in order to implement human rights treaties with preventing the conflict of both systems, including the withdrawal of the Optional Protocol to the International Covenant on Civil and Political Rights.