사회권규약의 발전과 국내적 함의

Half a century has passed since the International Covenant on Economic, Social and Cultural Rights (hereinafter ICESCR) was adopted in 1966 by the United Nations. Social rights include fundamental human rights essential for life with human dignity, such as labour rights, the right to an adequate standard of life, the right to food, the right to housing, the right to education, and the right to social security. While the Republic of Korea ratified both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1990, theory and practice in human rights in the Republic of Korea has evolved mostly around civil and political rights. The public interest in social rights has grown since the mid-1990s with rapid social polarization. However, the State’s slowness and insufficiency in securing social rights has been justified by alleged ‘budgetary constraints’ and ‘impediments to economic growth’. There is also a huge gap in the domestic procedures that can monitor the government’s compliance with its obligation to realize social rights, as well as provide remedies for those who are deprived of social rights. This article traces the evolving process involving the birth and development of the ICESCR in four stages, 1) the adoption of the Universal Declaration of Human Rights, 2) the adoption of the ICESCR, 3) the normative development of the ICESCR, and 4) the adoption of the Optional Protocol to the ICESCR. Since the 1990s, the efforts to elaborate the rights contained in the ICESCR and correlative states’ obligations have been crucial in overcoming the artificial division of civil and political rights on the one hand and socio-economic rights on the other; this includes the ambiguity of each social right, as well as the objection to justiciability of social rights. One of the major achievements is the introduction of individual and group communication procedures in relation to the violation of the ICESCR, which allows victims of social rights to seek remedies at the United Nations. In light of the evolution of the ICESCR, one key task in the national implementation of the ICESCR is strengthening the normative force of social rights by providing effective remedies for violations of those rights. Our constitution acknowledges the ‘social state’ as a constitutional principle and explicitly provides social rights, such as the rights to education, work, a life worthy of human beings, housing, and health. The Consitutional Court also reaffirms that social rights in the Constitution are the rights that individuals can claim against the State and impose on the State the obligations of implementation. Having said that, the Constitutional Court fails to engage in a meaningful review of social rights cases involving positive obligations of the government, leaving them to the scope of the legislative and executive’s wide margin of appreciation, which results in the weakened normative force of social rights. This article stresses the active role of the Constitutional Court and the National Human Rights Commission in providing effective remedies for social rights violations, particularly for marginalised groups of people who are not adequately represented in the political process. It suggests in-depth theoretical and policy discussions about the scope and the minimum level of each social right, as well as the standards of review.