국제인권조약의 국내 적용과 문제점

The Constitutional Court and the Supreme Court of Korea understand that international human rights treaties are instruments providing rights and duties among states, and place domestic laws before human rights treaties, or interpret domestic laws differently from human rights treaties even though where both provisions are same or similar. The courts do not apply human rights treaties domestically. Regardless of Article 6 of the Constitution, Korean courts rarely refer to international human rights treaties and are reluctant to cite or quote them. The attitude of Korean courts seem to be severe obstacle to implementing international human rights treaties with full effect. Article 6 of the Constitution does not differentiate between self-executing and non-self-executing treaties. Human rights treaties rarely provide for legislation of domestic laws to implement them and most human rights treaties could be implemented without additional domestic law. Moreover, human rights treaties are based on universality of human rights and recognized as constitutional rights in Korea. Most human rights could be implemented domestically directly as customary international law. Human rights provisions are specific and reciprocity, which is applied in ordinary treaties, is not applied to human rights treaties. Human rights are no longer a domestic matter. In conclusion, international human rights should be applied before domestic laws. Courts are required to cite and quote international human rights treaties and apply them directly. They should recognize the authority of interpretation by human rights bodies. Constitutional provisions should be interpreted in harmony with international human rights treaties. Lastly, a new procedure is needed to allow safisfaction for those victims of human rights violations which is affirmed by international human rights bodies.