On 24 November 2009, The Ministry of Justice expressed its regret concerning the Concluding Observations on the third periodic report of the Republic of Korea that despite of the government delegation’s sincere and detailed replies, the Committee announced the Concluding Observations which include a number of factual errors.
The Ministry of Justice is especially concerned that although they explained about the independence of the National Human Rights Commission of Korea (NHRCK), the scope of application of Constitution, domestic application of the International Covenant on Economic, Social, and Cultural Rights (CESCR), and the Yongsan incident, etc. referring to domestic legal provisions, and related Constitutional Court and other courts’ judgments in details, their purport was not reflected.
In addition, the position of the ministry is that it is very unusual and inappropriate in the light of general practice in considering international covenant reports that the Committee on the Economic, Social and Cultural Rights mentioned specific individual cases which are pending in court such as the Migrants’ Trade Union case and the Yongsan incident.
The Ministry of Justice decided to raise formal objections with a focus on the matters with factual errors in consultation with related ministries in the future.
The government of the Republic of Korea dispatched a large delegation of more than 30 representatives from 12 ministries to the consideration of the Committee on the third periodic report of the Republic of Korea which was held in Geneva, Switzerland, on 10-11 October 2009, and offered detailed response about human rights situation, laws and institutions, and government policies of the Republic of Korea in sincere and serious manner.
Consideration of the Committee on the Economic, Social and Cultural Rights is carried out based on state reports, written replies from the government to its list of issues, NGO reports, reports of national human rights institutions. During the consideration, some Committee members asked questions on the basis of incorrect and distorted information and concentrated on fragmented political issues. However, the delegation, expecting these errors corrected in the rational consideration process through constructive dialogs within the international body, faithfully explained the government’s position on related issues and submitted an opinion for corrections to the draft of the Concluding Observations on 23 November 2009.
Despite of such government’s efforts, the Concluding Observations of the Committee made public on 24 November 2009, without reflecting the government delegation’s response, include a number of factual errors and lack of understanding about domestic laws and institutions. This is a matter of great regret.
The government explained domestic laws and institutions, and Constitutional Court and other courts’ judgments through submitting the written replies to the list of issues, the responses during the consideration process, and the opinion to the draft of the Concluding Observations, and made efforts to correct the errors, but the Committee didn’t accept them.
○ Independence of the National Human Right Commission of Korea (NHRCK)
The government explained that the NHRCK’s independence according to the Paris Principles is fully guaranteed by the provisions of the Act on the NHRCK on independence, term assurance, and allocation of Commission members, etc., and related budget.
⇒ The independence of the Commission was brought under severe pressure. (Concluding Observations para.8)
○ Guarantee of economic, social and cultural rights under Constitution
The government explained that all social rights are guaranteed by Article 37(1) of Constitution which stipulates that freedoms and rights shall not be neglected on the grounds that they are not enumerated in the Constitution.
⇒ The scope of economic, social and cultural rights under the Constitution is narrower than in the Covenant. (Concluding Observations para.6)
○ Application of Constitution to foreigners
Constitution is applied also to foreigners according to Article 6(2) of Constitution, and the Constitutional Court actually acknowledged foreigners’ subjectivity of fundamental rights. (99Heonma494)
⇒ The Constitution only applies to citizens. (Concluding Observations para.6)
○ Domestic application of the Covenant
It has the same effect as the domestic laws by Article 6(1) of Constitution, and the Constitutional Court actually made a judgment of unconstitutionality invoking the Covenant. (2004Heonma670)
⇒ The State party is to accord the Covenant a legal status that would enable it to be invoked directly within the domestic legal system. (Concluding Observations para.6)
○ Foreign spouses’ dependency on Korean spouses
The government explained that the institution has been improved and is being implemented not to require guarantee of identity by Korean spouses when marriages are broken by domestic violence, abuse, etc.
⇒ Foreign spouses married to Korean nationals are still dependent on the latter for their residency status. (Concluding Observations para.11)
○ Sexual harassment at work
The government explained that sexual harassers in the workplace are punished by Article 11(1) and Article 14 of the Act on the Punishment of Sexual Crimes and Protection of Victims of Thereof and Article 298 (Indecent Act by Compulsion) of the Criminal Code.
⇒ Sexual harassment at work is not criminalized. (Concluding Observations para.16)
○ Crime of “obstruction of business” imposed on striking workers
The government explained about the specific criteria of the Supreme Court in judging the legality of the actions taken in a labor dispute.
The government explained that there has been no case of punishing legal and proper strikes but the law has been enforced only on clearly illegal strikes using violence, etc.
⇒ The frequent cases of prosecution of workers with regard to labour-management relations and excessive use of force demonstrated against striking workers (Concluding Observations para.19)
○ Legal measures for perpetrators of domestic violence
The government explained about ‘transference to a family court’ as one of the court’s judiciary proceedings in addition to indictment, and also explained that the rate of referring to legal proceedings of both indictment and transference to a family court combined is higher than that of all criminal suspect cases.
⇒ Legal action against perpetrators is seldom taken. (Concluding Observations para.22)
The Committee mentioned in its Concluding Observations specific individual cases which are pending in court such as the so-called Migrants’ Trade Union case and the so-called Yongsan incident. It is very unusual and inappropriate in the light of general practice in considering international covenant reports.
Concerning the Yongsan incident in particular, it is distorting fact to mention it as if it was one of typical cases of forcibly removing people without prior notification or access to temporary housing. (Concluding Observations para.27) It was a case where the shop tenants occupied other people’s building illegally and staged a sit-in protest demanding more compensation in addition to the compensation provided by law.
In consultation with related ministries, the Ministry of Justice, while examining ways to implement the recommendations for which domestic implementation is necessary, will raise formal objections in the future to the inappropriate recommendations with factual errors or based on lack of understanding of the domestic laws and institutions.
A written statement which the government submitted about the Concluding Observations has been posted, together with the Concluding Observations, on the homepage of the Committee on Economic, Social and Cultural Rights.