헌법재판소 위헌결정과 국제인권법

This Article analyzes how the Constitutional Court of Korea has incorporated international human rights law (“IHRL”) when declaring a law unconstitutional. The Court referenced IHRL while invalidating a law in 16 decisions, and this Article analyzes how the Court's attitude varied over time by examining each six-year term of the Court’s past presidents from 1988 to 2018. The appearance of IHRL in the Constitutional Court’s rulings reflects social and legal changes in Korean society. The first term (1988-1994) used the Universal Declaration of the Human Rights and the International Covenant on Civil and Political Rights (“ICCPR”) to protect individual’s freedom and challenge a governmental authority. The second term (1994-2000) referred to the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) to promote gender equality. The third term (2000-2006) mentioned the ICCPR in cases relating to criminal justice. The forth term (2007-2012) used the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) to protect social rights of non-citizens, while the Court did not explicitly answer to arguments based on international human rights law in the other cases. During the last period (2013-2018), the Court relied not only on treaty provisions but also on various soft law documents from treaty bodies and international courts in their decisions declaring the Korean law unconstitutional. Analysis demonstrates that although IHRL has rarely been a decisive factor in the Court’s unconstitutionality holdings, the Court has relied on international law in interpreting the Constitution and strengthening its constitutional grounds. The Court should apply international human right law more directly and actively, engaging in global judicial discussions and making the Korean Constitution and international human rights treaties ‘living instruments.’