비상사태 시 국제인권조약상 이행정지와 한국의 실행

Derogation of Human Rights Treaties in Public Emergency and South Korean Practice: including Martial Law and COVID-19

In times of public emergency, states take emergency measures to control the national crisis and restore public order. These emergency measures often restrict individuals’ freedom and rights that are protected under international human rights treaties. The International Covenant on Civil and Political Rights, in its article 4, allows states to derogate from their obligations under the Covenant in time of public emergency. This is to adopt emergency measures to control crisis and, more importantly, to prevent the abuse of emergency power at the same time. This article examines the requirements and limits of emergency measures under article 4 of the Covenant, based on the guidelines and practices of the Human Rights Committee and other states. This article then reviews South Korean practice on emergency measures taken to respond to national emergencies. South Korea has a dark history of emergency power abused to silence dissidents under the authoritative regimes. Since the ratification of the Covenant in 1990, the emergency power under the current Constitution has never been invoked, reflecting the democratization progress. To respond to the global crisis of the COVID-19, South Korea has taken a wide range of derogatory measures without declaring a state of emergency. To meet the requirements of article 4, the South Korean government should enact the legal basis of the social distancing policy. The preventive measures for the COVID-19 should be proportional and must not include discrimination.