Roles and Further Tasks of National Human Rights Institutions: Lessons from the Experiences of the National Human Rights Commission of the Republic of Korea

This article will first look into the status and role of the NHRI, and then briefly introduce the NHRCK’s achievements over the past 10 years. Furthermore, through analysis of the various problems encountered through the operation of the NHRCK, which is the main objective of this article, alternative solutions for a more constructive and progressive human rights institution operation will be sought. Korea’s operation of an NHRI over the past 10 years may provide considerable vicarious experience for countries with existing NHRIs or with plans to create them in the future. The lessons from the NHRCK’s experiences may be summarized as follows. First of all, it is imperative that the nature of NHRIs be clearly understood. While the formal establishment of NHRIs is based on domestic law, the real nature of these organizations is based on international human rights law. NHRIs are organizations that are not mere domestic human rights institutions, but institutions that have international characteristics, vital to the domestic implementation of international human rights norms. Second, the independence of an NHRI is inestimably important to its formation and operation. Independence is emphasized as a major factor of an NHRI, and this principle was emphasized as the most necessary component of guaranteeing the realistic efficacy of a human rights institution when the UN recommended the establishment of an NHRI to each country. A guarantee of this must be supported by very strong legal bases. Korea’s experience has more than sufficiently revealed that the most ideal situation is that in which the highest law of the country guarantees such independence. Third, NHRIs must in their functions be able to maintain a certain harmony between the human rights policy recommending function and the human rights violation remedy function. Will the human rights institution focus more on human rights policies in which it may wield a great deal of social influence, or on the remedy of individual human rights violations? This is an important policy decision dilemma regarding the operation of the NHRCK. What can be known through Korea’s experience is that the raison d’être of a human rights institution is vitalized when these two functions are in adequate harmony. Fourth, the question of whether it is necessarily always good to conjoin all the human rights institutions to create one human rights institution must also be thoroughly examined. Looking back upon the past year’s execution of the Disability Discrimination Act, this argument seems increasingly compelling. Integrating all the human rights institutions based on effectiveness can actually prove detrimental to the advancement of specified areas of human rights. Finally, it must be made aware that NHRIs are extremely useful systems for the domestic implementation of international human rights law. Although there are discrepancies in the degree to which the judicial branches’ purport to invoke international human rights law, internationally the implementation status in general is not very high.