The Protection of Human Rights in the perspective of Domestic Courts on Treaties


Lee, Whie Jin

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It has been argued that domestic courts seem passive in the application of international law in consideration of the execution of decision, accruing to the restraint of courts. Courts have justified its reluctance to invoke human rights treaties directly for reason of non-self-executing effect of treaties. However, the doctrine of non-self-executing effect does not correspond to the explicit provision of the constitution on the relations between international law and municipal law. The constitutions of most states explicitly manifest to treaties the same status as municipal law. In the process of a treaty having domestic effect through its domestic implementation, the most significant aspect is for a treaty to be invoked and applied as a norm in the court proceeding. If the treaty is not practically applied in the court proceedings as the judicial norm, even after the accession to the treaty, the significance of accession might not eventuate in the protection of human rights of individuals.


Ⅰ. Introduction
Ⅱ. The Issue of Self-Executing Effect of Treaties
1. Criticism of the Doctrine of Self-Executing Effect
2. Self-Executing Effect of Human Rights Treaties in Korea
Ⅲ. The Case of Freedom of Expression
1. Overview
2. The Case of Korean Courts
Ⅳ. The Application of Human Rights Treatiesin Foreign Courts
1. The United States
2. Japan
Ⅴ. Conclusion


  • Lee, Whie Jin Lecturer, Dongguk University


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