Non-Citizens’ Rights, Constitutional Review and an Inclusive Democracy: A Case Study of South Korea

As bearers of equal moral worth and universal human rights as recognized by international human rights law, and as non-demos in the state they reside in, non-citizens occupy a dual position in a particular society. They are ironically situated in modern democracy, being subject to domestic law of the state of residence, without holding political membership for participating in that law’s making. With globalization and increasing transnational mobility, the democratic gap experienced by non-citizens is widening, and discriminatory treatments against them demand justification in light of both international and constitutional law. Contemporary international human rights law establishes a non-discrimination principle for non-citizens and rejects an application of the reciprocity rule. A case study of South Korea reveals that the practice of the Korean Constitutional Court and the dominant scholarly view in the country run counter to these norms, applying instead a unilaterally constructed standard of constitutional rights interpretation that unjustly denies non-citizens’ internationally recognized human rights. Such practice also goes against the Korean Constitution’s own cosmopolitan commitment embodied in Article 6, including the constitutional principle of respecting international law (paragraph 1) and a constitutional guarantee of non-citizens’ rights and status according to international human rights norms (paragraph 2). By empowering disenfranchised individuals to participate in the norm-making process and thus reducing the democratic deficit created by nationality-based representative democracy, non-citizens’ rights practices, enabled through the constitutional review system, can advance domestic democracy so that it attains a more inclusive and egalitarian nature. Non-citizens’ rights claims facilitate normative interconnectedness and integrative operations between international and constitutional law, and democracy and human rights. The Constitutional Court of Korea needs to fully incorporate contemporary developments in international human rights law in its own constitutional rights interpretations. It should guarantee non-citizens’ equal standing to bring constitutional claims for their internationally recognized human rights, and apply the same level of scrutiny against rights restrictions and discriminations as applied to citizens. Such constitutional internalization of non-citizens’ equal human rights indeed lives up to the cosmopolitan orientation inherent in the Korean Constitution since its creation. It also enhances the global legitimacy of the state’s democracy and its constitutional adjudication system.