아동권리협약의 국내법적 효력에 대한 검토

The Republic of Korea (ROK) ratified the Convention on the Rights of the Child (CRC) on November 20, 1991. The CRC is one of the nine core international human rights instruments proposed by the Office of the United Nations High Commissioner for Human Rights. It is the international human rights treaty with the most State parties worldwide. The ROK is a party to eight core international human rights instruments. However, the ROK government obtained National Assembly approval for the accession to or ratification of seven of these treaties, but not the CRC. Notably, the government did not seek National Assembly approval to ratify the CRC specifically. A review of the agenda item presented to the State Council and its meeting minutes at the time of the CRC's ratification indicates that the government concluded that separate legislative action was unnecessary and the National Assembly's consent was not required. This conclusion appears to have been based on an internal review indicating that any CRC provisions conflicting with domestic laws would be reserved, thus enabling the ratification without the National Assembly consent. Indeed, when depositing the instrument of ratification with the UN Secretary-General, the Korean government notified reservations regarding three provisions: Articles 9(3), 21(a), and 40(2)(b)(v). The reservations concerning Articles 9(3) and 21(a) were later withdrawn after relevant domestic laws were amended to resolve conflicts with these provisions. The government determined that ratification of the CRC did not require the National Assembly's consent and proceeded to ratify it without such consent. However, there is a divergence of opinion regarding the domestic legal effect of treaties acceded to or ratified without the consent. This relates to differing interpretations of Articles 6(1) and 60(1) of the Constitution. Specifically, different conclusions arise depending on how the phrases “treaties duly concluded and promulgated under the Constitution,” “treaties related to legislative matters,” and “shall have the same effect as the domestic laws” are interpreted. To accurately understand the CRC's domestic legal effect, one must consider the interpretations of Articles 6(1) and 60(1) of the Constitution, as well as the domestic treaty-conclusion practices. Through various rulings, domestic courts have recognized the CRC's domestic legal effect, invoked it for legal determinations, and found specific factual circumstances to be in violation of the CRC.