Published online by Cambridge University Press: 10 September 2021
Through the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.
2 Studies on the beyond states aspect of global constitutionalism include: A Peters ‘The Merits of Global Constitutionalism’ (2009) 16 Indiana Journal of Global Legal Studies 397. Regarding the across states dimension, see for example, S Choudhry (ed) The Migration of Constitutional Ideas (Cambridge University Press, Cambridge, 2006) and A Slaughter ‘Judicial Globalization’ (2000) 40 Virginia Journal of International Law 1103. Among the literature on the within a state level, see Chang, W and Yeh, J ‘Internationalization of Constitutional Law’ in Rosenfeld, M and Sajó, A (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, Oxford, 2012)Google Scholar; Saunders, C ‘The Impact of Internationalisation on National Constitutions’ in Chen, A (ed), Constitutionalism in Asia in the Early Twenty-First Century (Cambridge University Press, Cambridge, 2014)Google Scholar.
3 See, for example, Slaughter (n 2).
4 This relational understanding of the rule of law principle that interconnects international and constitutional law is observable in a decision by the German Constitutional Court, Görgülü v Germany (2004) 2 BvR 1481/04, and the Spanish Supreme Court Judgment No. 1263/2018, 17 July 2018, acknowledging the binding effect of the view of the UN Committee on the Elimination of Discrimination against Women, on the basis of the Spanish Constitution’s rule of law principle. See also Vienna Convention on the Law of Treaties art 27 (Internal law and observance of treaties): ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’
5 For comprehensive comparative studies on such constitutional practices, see International Law Association Study Group Report Principles on the Engagement of Domestic Courts with International Law (International Law Association, 2016); European Commission for Democracy Through Law (Venice Commission) Report on the Implementation of International Human Rights Treaties in Domestic Law and the Role of Courts (2014).
6 Jackson, V Constitutional Engagement in a Transnational Era (Oxford University Press, Oxford, 2013)Google Scholar.
7 See (n 6) 13, 17.
8 For an overview of the positions of public law scholars in South Korea, see J Chon ‘Heonbeobjaepansoui gukjeingwonjoyak jeogyong [Application of the Constitutional Court’s International Human Rights Treaty]’ (2019) 170 The Justice 507, 511–14 [in Korean].
9 See (n 8) for a survey of Constitutional Court decisions that have cited international human rights treaties. See also YJ Shin ‘Gukjeingwongyubeomgwa heonbeob: tonghapjeok gwangye guseongeul wihan ironjeoksilcheonjeok gochal [International Human Rights Norms and the Constitution: Constructing an Integrated Relationship]’ (2020) 61 Seoul Law Journal 207, 219–22 [in Korean].
10 Constitutional Court of Korea, 2011Hun-Ba379 etc. (28 June 2018).
11 For example, Yeo-Bum Yoon et al. v Republic of Korea, Communications Nos. 1321/2004 and 1322/2004, U.N. Doc. CCPR/C/88/D/1321-1322/2004 (2006); Jong-nam Kim et al. v Republic of Korea, Communication No. 1786/2008, U.N. Doc. CCPR/C/106/D/1786/2008 (2012); Young-kwan Kim et al. v Republic of Korea, Communication No. 2179/2012, U.N. Doc. CCPR/C/112/D/2179/2012 (2014).
12 See (n 11).
13 Constitutional Court of Korea, 2008Hun-Ka22 etc. (30 August 2011).
14 See Shin, YJ ‘Cosmopolitanising Rights Practice: The Case of South Korea’ in Suami, T, Peters, A, Vanoverbeke, D and Kumm, M (eds), Global Constitutionalism from European and East Asian Perspectives (Cambridge University Press, Cambridge, 2018) 253 Google Scholar.
15 Exemplary cases include decisions on the Marrakesh Agreement Establishing the World Trade Organization; Articles of Agreement of the International Monetary Fund; Agreement of Fisheries between the Government of the Republic of Korea and the Government of Japan. (n 14) 252.
16 Bayatyan v Armenia, Application no. 23459/03, European Court of Human Rights, 7 July 2011 (holding that the right to conscientious objection is guaranteed under the European Convention on Human Rights Art 9).
17 Constitutional Court of Korea, 2011Hun-Ba379 etc. (28 June 2018).
18 Constitutional Court of Korea, 2011Hun-Ma306 etc. (26 July 2018).
19 Supreme Court of Korea, 2016Do10912 (1 November 2018).
20 (n 19).
21 On constitutional identity as reflected in and driving constitutional globalization, see BN Son ‘Globalization of Constitutional Identity’ (2017) 26(3) Washington International Law Journal 463. See also Kumm, M ‘Constitutional Democracy Encounters International Law: Terms of Engagement’ in Choudhry, S (ed), The Migration of Constitutional Ideas (Cambridge University Press, Cambridge, 2006)Google Scholar.
22 Constitution of the Republic of Korea, Preamble: ‘We, the people of Korea, proud of a resplendent history and traditions … To elevate the quality of life for all citizens and contribute to lasting world peace and the common prosperity of mankind and thereby to ensure security, liberty and happiness for ourselves and our posterity forever, Do hereby amend …’ (emphasis added). Art 6 para 2 of the Constitution also reflects cosmopolitan orientation, providing, ‘The status of aliens shall be guaranteed as prescribed by international law and treaties.’
23 Shin (n 9) 221.
24 Mattias Kumm describes these conventional nationalist scholars’ position with the term ‘Big C constitutionalist’. M Kumm ‘The Cosmopolitan Turn in Constitutionalism: An Integrated Conception of Public Law’ (2013) 20(2) Indiana Journal of Global Legal Studies 605. See also (n 6) 8, 21–28, discussing a posture of resistance in the context of exclusive popular sovereignty, nationalist constitutionalism, and US exceptionalism.
25 See (n 6) 18 (on ‘decorative citations’ of foreign and international law).
26 On a mode of deliberative engagement with and the persuasive authority of human rights treaty bodies’ interpretation, see B Çalı ‘The Legitimacy of Human Rights Treaty Bodies: An Indirect Instrumentalist Defense’ in A Føllesdal, JK Schaffer and G Ulfstein (eds), The Legitimacy of Human Rights Regimes (Cambridge University Press, Cambridge, 2013); Kumm (n 21); R van Alebeek and A Nollkaemper ‘The Legal Status of Decisions by Human Rights Treaty Bodies in National Law’ in H Keller and G Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press, Cambridge, 2012). See also Shin (n 9) 226–32.
27 Shin (n 9) 222–24.
28 There has not yet been a case where the court has explicitly acknowledged a domestic statute’s violation of IHRL.
29 See Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women art 7 para 4: ‘The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee’; Shin (n 9) 236–38.
30 This posture is contrasted with the Spanish Supreme Court Judgment No. 1263/2018 (n 4).
31 See also Shin (n 9) 238–39.
32 This contextualized approach is thus distinguished from Vicki Jackson’s positioning that rejects the posture of convergence, while partly recognizing its merits, for the reason that convergence is inappropriate to serve as a general relational mode with the transnational (a term that, in her research, often inadvertently conflates international and foreign law) and from the view that a convergence mode disregards national identity or particularity. (n 6) 12–13, 44–49, 65, 71–72, 174–75.
33 Shin (n 9) 226–32.
34 For an introduction of this position, see DS Law ‘Judicial Comparativism and Judicial Diplomacy’ (2015) 163(4) University of Pennsylvania Law Review 927, 967–69.
35 Constitutional Court of Korea, 2017Hun-Ba127 (11 April 2019).
36 Constitutional Court of Korea, 2011Hun-Ba379 etc. (28 June 2018).
37 Constitutional Court of Korea, 2011Hun-Ka31 etc. (26 February 2015).
38 Constitutional Court of Korea, 2012Hun-Ma409 etc. (28 January 2014).
39 See <http://ri.ccourt.go.kr/eng/ccourt/main/index.jsp> (an English-language webpage of the Institute).
41 For further discussion, see (n 14) 256.
42 For example, Constitutional Court of Korea, 2012Hun-Ma409 etc. (n 38); Constitutional Court of Korea, 2013Hun-Ka2 (31 March 2016) (reviewing the constitutionality of criminal law penalizing prostitution).
43 See <http://aacc-asia.org>.
44 The Statute of the Association of Asian Constitutional Courts and Equivalent Institutions [AACC Statute] art 3, available at <http://aacc-asia.org/content/statute/8_Statute%20AACC.pdf>.
45 AACC Statute art 4.
46 The Constitutional Court of Taiwan, among the most active constitutional courts in Asia, has yet to attain membership. The reason for the omission, at least partly, would be the constraint placed by the Statute provision, ‘Only one institution from a sovereign country in Asia can become a member of the Association.’ (AACC Statute art 6 para 1), although the following provision states that, ‘Membership of the Association is open to Asian constitutional courts and equivalent institutions which exercise constitutional jurisdiction.’ (AACC Statute art 6 para 2). However, the real hurdle is the diplomatic and political relationship that each country of member courts has with China, which does not recognize Taiwan as a sovereign state, despite the fact that a Chinese court is not a member of the Association.
48 See F Duessel ‘Getting to Know AACC Members’, available at <https://blog-iacl-aidc.org/2019-posts/2019/1/31/getting-to-know-aacc-members> and M de Visser ‘The AACC – and Not Only its Members – as an Object of Constitutional Research’, available at <https://blog-iacl-aidc.org/2019-posts/2019/2/20/the-aacc-and-not-only-its-members-as-an-object-of-constitutional-research>.
49 The conference led to its first publication, Jurisdictions and Organization of AACC Members by AACC SRD (2018), available at <http://www.aaccsrd.org/en/pubsDtl.do>.
50 South Korean constitutional justices have served as the co-president of the Joint Council on Constitutional Justice and a Bureau Member of the Venice Commission.
51 These are examples of the court’s transnational interactions between December 2017 and November 2019, available at <http://english.ccourt.go.kr/cckhome/eng/introduction/news/newsDetail.do>.
52 See (n 6) 102, noting, ‘The increased practice of translating domestic constitutional court decisions (or summaries thereof) into English by the constitutional courts themselves is an indicator that the judges see some value to making their decisions more widely accessible to other jurists and lawyers.’
55 (n 54).
57 During 2018–19, the court hosted one research officer from Indonesia (for two years – the officer was also enrolled at Seoul National University Law School’s graduate program) and one from the Mongolian Constitutional Court.
58 One research judge has been dispatched to the Constitutional Court of South Africa.
59 See Tushnet, M Weak Court, Strong Rights (Princeton University Press, Princeton, NJ, 2008) 3–17 Google Scholar, discussing an expressivist understanding of constitutional law; (n 6) 3–5, 84–85.
61 See (n 34) 1003–09, 1020–28, discussing aspects of judicial diplomacy.
62 For a similar observation, see M de Visser ‘We All Stand Together: The Role of the Association of Asian Constitutional Courts and Equivalent Institutions in Promoting Constitutionalism’ (2016) 3(1) Asian Journal of Law and Society 105.
