Dualist Dilemma in International Human Rights Law at the Korean Constitutional Court – A Constitutional Analysis

The effective realization of international human rights law (IHRL) fundamentally depends on its implementation and enforcement within individual states, through legislative, political, and judicial processes. In South Korea, judicial practice has generally been reluctant to treat IHRL as binding law or as a direct source of fundamental rights when adjudicating human rights cases. Although references to IHRL have occasionally appeared, their application has remained limited and inconsistent, notably within the Constitutional Court as well. Existing scholarship largely attributes this judicial passivity to extra-judicial factors, such as individual judges’ resistance to, or unfamiliarity with, international law. This article contends, however, that the constraints on judicial application of IHRL in Korea’s courts, particularly the Constitutional Court, are rooted in objective, structural, and normative factors from a “constitutionalist approach”. Within this framework, South Korean judges face a “dualistic dilemma” in applying IHRL, marked by theoretical, normative, and institutional constraints. Nevertheless, rather than concluding that this dualistic dilemma will inevitably distance Korean courts from active engagement with the IHRL, this article demonstrates how IHRL may also be employed within the Korean constitutional framework.