E/CN.4/2006/NGO/185–March 7, 2006

11월 24th, 2010 | Posted by admin in 4. UN reports on Republic of Korea

COMMISSION ON HUMAN RIGHTS
Sixty-second session
Item 18 of the provisional agenda
EFFECTIVE FUNCTIONING OF HUMAN RIGHTS MECHANISMS

RESPONSIBILITIES OF REPUBLIC OF KOREA IN IMPLEMENTING
RECOMMENDATIONS OF INTERNATIONAL HUMAN RIGHTS INSTITUTIONS
1. We have noted with great interest the issue of implementing recommendations of inter national
human rights institutions in the United Nations Commission on Human Rights (UNCHR) and
welcomed its lively discussion.
2. In 23 August 2005, the Human Rights Committee (HRC), a monitoring body of the
International Covenant on Civil and Political Rights (ICCPR) made its jurisprudence
[CCPR/C/84/D/1119/2002] with regards to the case of LEE Jeong –Eun, the former vice
president of the Korea Federation of Student Councils (Hanchongnyeon). In its decision, the
HRC stated that the prohibition of the association and the criminal prosecution of individuals for
membership of Hanchongnyeon breaches article 19 of the ICCPR and the author is entitled to an
effective remedy, including compensation. However, the Constitutional Court and the Supreme
Court of the Republic of Korea have always ruled that Hanchongnyeon is an enemy-benefiting
group and it is not a violation of the Constitution to restrict this group’s rights under the National
Security Law (NSL).
3. Since 8 March 1995 when the HRC made its first jurisprudence on the case of SOHN Jong-
Kyu [CCPR/C/54/D/518/1992], there have been five further individual communications up to 3
October 2005 under the Optional Protocol to the ICCPR that found the Republic of Korea
violated the ICCPR. However, none of these decisions have been implemented to give effective
remedies to the victims.
4. In the case of SOHN Jong-Kyu, the court noted that the recommendations of the HRC are not
legally binding and took the position that there would be no breach of Korea’s inter national
obligations by not implementing the views of the HRC. We regret to note that many state parties
similarly disregard the recommendations of the Committee as there is no clear provision within
the ICCPR and its Optional Protocol to make the views of the HRC legally binding.
5. However, in fact, the decisions of the HRC are legally binding and not merely a diplomatic
communiqué. Therefore, the state parties should take all necessary measures to give effect to its
decisions according to the principle of good faith.
6. We understand that there was a controversy in the past regarding the role of the HRC: whether
it merely decides on if a violation of the ICCPR has occurred, or it should also give
reco mmendations for effective remedies to State parties. From the beginning of the HRC’s work
however, it became a general practice for the Committee to not only decide upon violations of
the ICCPR but also make recommendations for the effective remed y of such violations.
7. Under the Optional Protocol of the ICCPR, the HRC has the authority to adapt its final views
regarding individual communications that are brought before it. It would be a question why each
state party gave the authority to the HRC in order for the HRC to consider its individual
communications if it does not implement the views of the HRC on the pretext that it is only a
recommendation.
8. Particularly in Asia, human rights can only be protected by the United Nations human rights
bodies such as the HRC. Unlike in other regions, Asia does not have any regional human rights
mechanism which issue s legally binding views upon its member states. Such mechanisms are not
likely to come into being in the near future due to certain political, economic, social and cultural
factors.
9. In light of this, we call on the Commission to urge the Government of the Republic of Korea
to:
(a) fully respect the recommendations by international human rights bodies including the HRC
and make systemic mechanisms to ensure such practice ;
(b) encourage national courts to refer to the views of the UN bodies into their decision making
process to avoid clashes with domestic legal views when they conduct trials;
(c) review the cases in the national courts when the HRC’s decisions differ from them;
(d) recognize ex gratia payment for the victim when the HRC’s decisions are different from
them.
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