KJCKorea
Journal Central

The Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights, adopted in 2008 and entering into force in 2013, provides an individual communications procedure. It provides for considering complaints or allegations by individuals who believe that their rights guaranteed by the ICESCR have been violated by a state party and for the remedy of such violations by the treaty body, the Committee on ESCR. Although the Republic of Korea is a state party to the ICESCR, it has yet to ratify the Optional Protocol. It is, however, necessary to consider accepting the individual communication system in the future to ensure adequate domestic implementation and protection of ESCR. Despite this, domestic literature has yet to analyze this system in depth. While the ICESCR follows the basic principles of other core human rights treaties, it also has unique elements. This paper provides a detailed review of the system as a whole, based on the Optional Protocol, and analyses the main issues raised in the drafting process and its differences from other human rights treaties in the context of all the Committee on ESCR's previous decisions on individual communications. Two main features that emerged from the analysis were the emphasis placed on the exhaustion of local remedies in the admissibility process and the fact that Article 3, paragraph 2(e) of the Optional Protocol was most frequently invoked as a ground for inadmissibility. These two features imply that local remedies, in particular domestic judicial procedure, should be effective for remedying the claimed violation of the rights under the Covenant. States parties to the ICESCR have a clear obligation to take progressive steps towards the realization of ESCR. This includes not only the substantive obligation to protect ESCR, but also the responsibility to ensure adequate procedures for effective remedies when ESCR are violated. As a state party, the Republic of Korea must fulfill these procedural guarantees of ESCR. One effective way to do this is by ratifying the Optional Protocol to the ICESCR, which would further strengthen the domestic protection of ESCR.

According to the National Human Rights Commission Act, enacted to establish the National Human Rights Commission launched in 2001, the commission is composed of a total of 11 human rights commissioners, including the chairperson. The commissioners are appointed or elected as follows: the President appoints four, the National Assembly appoints four, and the Chief Justice of the Supreme Court appoints three. Among all commissioners, including the chairperson, four are full-time and the remaining seven are part-time. The President appoints the chairperson and one full-time commissioner, while the National Assembly elects the other two full-time commissioners. Regarding the meetings of the National Human Rights Commission, the National Human Rights Commission Act generally stipulates that decisions shall be made by a majority vote of the attending commissioners, following the principle of majority rule, which is understood as a fundamental aspect of democracy. However, exceptions regarding the quorum and decision-making quorum for meetings of the standing committee and subcommittees are recognized. There is controversy surrounding the interpretation of these exceptions. The National Human Rights Commission Act requires human rights commissioners to possess basic qualifications of expertise, fairness, and independence. Additionally, they must meet one of the following additional qualifications: being a university professor, a legal professional, a human rights activist, or a person of social renown. Ensuring diversity and democratic legitimacy in the appointment process of human rights commissioners is possible when there is guaranteed participation from various citizens rather than intervention from various state institutions. Among the qualifications for human rights commissioners, including the chairperson of the National Human Rights Commission, the fundamental requirement of “expertise and experience in human rights issues” needs to be prioritized. In cases where the President, National Assembly, and Chief Justice of the Supreme Court continue to appoint the chairperson or commissioners of the National Human Rights Commission, it is necessary to establish procedures to secure recommendations, opinions, and representation from civil society regarding candidates. To address situations where meetings of the standing committee cannot commence due to intentional absence, an exceptional provision allowing the chairperson to convene meetings if sufficient justification for absence is not provided needs to be added. Principally, if all members of subcommittees agree or disagree, the decision should be accepted or rejected accordingly. Exceptions should be made for cases where there are two in favor or one against, or one in favor and two against, regarding the referral to the plenary committee. When the National Human Rights Commission expresses recommendations or opinions on the policies or practices related to human rights of relevant institutions, it should also be able to express recommendations or opinions on the laws or systems that serve as the basis for such policies or practices.