—Yoomin Won, Associate Professor, Seoul National University School of Law
On December 3, 2024, South Korea’s President Yoon Suk Yeol declared a state of emergency and invoked martial law. Although this martial law was lifted after just six hours, it has been criticized as a measure that regressed South Korea’s democracy. This post briefly critiques how the emergency martial law declaration failed to meet the requirements under international human rights law.
South Korea’s Obligations under International Human Rights Law
South Korea joined the International Covenant on Civil and Political Rights (ICCPR) in 1990. Specifically, Article 4 of the ICCPR allows for the derogation of obligations under the Covenant in the event of a public emergency that threatens the life of the nation (Paragraph 1). However, even when emergency measures are taken to control a crisis, the state may take measures only to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination solely on the grounds of race, color, sex, language, religion, or social origin (Paragraph 1). Additionally, certain rights cannot be derogated even in times of emergency (Paragraph 2). Furthermore, the derogated provisions of the Covenant and the reasons must be communicated to other State Parties through the Secretary-General of the United Nations (Paragraph 3).
When the South Korean government first attempted to join the ICCPR in 1985, it sought to make a reservation to Article 4. The reason for this was that the 1980 Constitution, which was in effect at the time, allowed the president to restrict any type of fundamental right by emergency measures,[1] which was incompatible with Article 4(2), which lists the rights that cannot be derogated. Furthermore, according to Article 4(3) of the Covenant, when a state party invokes the derogation, it must notify other state parties through the Secretary-General of the United Nations. South Korea found it unacceptable to notify North Korea of the existence of an emergency situation.[2] The 1985 ratification proposal was discarded due to the expiration of the National Assembly’s session.
Under the current 1987 Constitution, which was adopted following South Korea’s democratization movement, South Korea joined the ICCPR in 1990. With both South and North Korea joining the United Nations in 1991, South Korea became more integrated into the UN human rights treaty system. When South Korea joined the ICCPR, it did not make a reservation to Article 4. Meanwhile, Article 110(4) of the current 1987 Constitution provides that military trials under emergency martial law may not be appealed for certain crimes, except for the death penalty. When ratifying the ICCPR, South Korea attached a reservation on the right to appeal under Article 14(5) of the ICCPR. Later, in 2007, considering that under Article 4 of the Covenant, such a right could be derogated under martial law, South Korea withdrew this reservation.
Under the current constitution, martial law had not been declared until last December, so the issue of possible violation of Article 4 had not arisen. The declaration of emergency martial law on December 3, 2024, is the first martial law declaration since South Korea’s accession to the ICCPR and the current constitution. We will now examine whether this declaration of martial law complies with the obligations under Article 4 of the ICCPR.
Requirement of the existence of the public emergency
Article 4(1) of the ICCPR requires that a public emergency threatening the life of the nation must exist, and that the existence of the emergency must be officially proclaimed.[3] Requiring the proclamation of a state of emergency ensures the maintenance of the principles of legality and the rule of law at times when they are most needed.[4] It informs the public of the temporal, geographical, and scope limitations of the emergency measures, as well as the rights that will be derogated. The proclamation of a state of emergency must be carried out according to the domestic laws of the state party that govern such proclamations and the exercise of emergency powers.[5]
The declaration of emergency martial law in South Korea in December 2024 cannot be considered to meet these requirements. First, there was no public emergency threatening the life of South Korea. In his proclamation of martial law, Yoon briefly referred to the excessive numbers of motions against high government officials and prosecutors initiated by the National Assembly. He explained that lawmakers paralyzed both the judicial and executive branches through these impeachment motions and budget cuts. Yoon, thus, declared martial law to eradicate pro-North Korean forces and protect the liberal democratic order. The impeachment motions and budget cuts made by the National Assembly may be excessive, but they were an exercise of authority under the law. While the difficult situation may be politically challenging for Yoon, it cannot be seen as threatening the life of South Korea. There was no other crisis that could be considered to have threatened the life of the country.
Secondly, the requirement for the proclamation of a state of emergency may seem to be met by Yoon’s appearance on television declaring martial law. However, the proclamation was not in accordance with Korean domestic law governing emergency powers. While the Korean Constitution and the Martial Law Act require deliberation by the State Council and the signing of documents, it has been revealed that these legal requirements were not properly adhered to. Therefore, the existence of a public emergency, a requirement for invoking the derogation under Article 4 of the ICCPR, was not met.
Limitations of the Emergency Measures
Article 4(1) of the ICCPR requires that even when invoking derogation, emergency measures must be limited to the extent strictly required by the exigencies of the situation. This requirement pertains to the duration, geographical scope, and material scope of the state of emergency, as well as any derogatory measures taken in response to the emergency.[6] This reflects the principle of proportionality. State parties should be able to justify not only their decision to proclaim a state of emergency but also any specific measures taken based on such a proclamation.[7] Emergency measures must be exceptional and temporary in nature.[8]
The emergency measures outlined in Martial Law Decree No. 1 were excessive restrictions on fundamental rights, extending beyond what was necessary. Even if the declaration of martial law was considered necessary, the measures taken to achieve its objectives were not. The decree prohibited all political activities, including party activities, political associations, assemblies, and demonstrations (Paragraph 1). This effectively restricted the political freedoms of all citizens, regardless of whether they were aligned with ‘pro-North Korean forces’ or opposed to the democratic order. Such a blanket restriction was unrelated to the declared purpose of martial law. The dissemination of fake news, manipulation of public opinion, and false propaganda are prohibited (Paragraph 2), and the media and publications were placed under the control of the martial law command (Paragraph 3). Strikes, work stoppages, and rallies deemed to incite social chaos were prohibited (Paragraph 4). These measures were excessive limitations on fundamental rights that had no direct connection to the emergency that triggered the declaration of martial law. Furthermore, all medical professionals, including residents, who were on strike or absent from medical facilities, were ordered to return to their duties within 48 hours (Paragraph 5), representing another excessive restriction of fundamental rights that was unrelated to the crisis described in the martial law proclamation. Therefore, the specific emergency measures declared under martial law were actions that went beyond what the situation required and violated the principle of proportionality.
Procedural Requirement of Notification
Article 4(3) of the ICCPR requires that a state notify other State Parties through the UN Secretary-General when it invokes the right to derogate. This notification must include the specific provisions being derogated and the reasons for the derogation. The purpose of this notification is to allow the Human Rights Committee, the treaty body of the ICCPR, to assess whether the emergency measures are strictly required by the exigencies of the situation and to enable other states to monitor compliance with the ICCPR.[9] The Human Rights Committee emphasizes that the notification should provide complete information about the measures taken, a clear explanation of the reasons for them, and full documentation regarding the relevant laws.[10]
South Korea did not submit any notification regarding the state of emergency martial law declared in December 2024. Had such notification been made, the specific rights affected by the decree, such as freedom of expression (Article 19), freedom of assembly (Article 21), and freedom of association (Article 22), should have been listed. Since the martial law decree explicitly stated that individuals violating the decree would be subject to arrest, detention, and search and seizure without a warrant, the right to liberty and security of person (Article 9) should also have been included in the notification. The reasons for the derogation should have been clearly explained, along with the declaration of martial law and the decree. It appears that these notification requirements were not fulfilled.
Conclusion
The declaration of emergency martial law and the measures outlined in the martial law decree in South Korea in December 2024 do not meet the requirements for the derogation under Article 4 of the ICCPR. Fortunately, the martial law was lifted within six hours during the night, preventing serious human rights violations, such as arrests without warrants or broad restrictions on citizens’ fundamental rights, from occurring.
The purpose of the derogation provisions in international human rights law is to prevent the abuse of power and human rights violations, even when exceptional measures are taken during times of emergency. South Korea’s recent martial law exhibited elements of authority abuse and human rights violations that the derogation provisions aim to prevent. Even when exercising emergency powers under domestic law, it is crucial to remember and adhere to the requirements of international human rights law to prevent the erosion of hard-earned democracy.
Suggested citation: Yoomin Won, Symposium on South Korea’s Martial Law Declaration Part 3: Failing to Uphold International Human Rights Standards, Int’l J. Const. L. Blog, Jan. 28, 2025, at: http://www.iconnectblog.com/symposium-on-south-koreas-martial-law-declaration-part-3-failing-to-uphold-international-human-rights-standards/
[1] Article 51 of the 1980 South Korean Constitution.
[2] North Korea ratified the ICCPR in 1981, and later in 1997 sent a notification of withdrawal from the ICCPR.
[3] The requirement of an official proclamation of a state of emergency is not present in the other regional human rights treaties: Article 15 of the European Convention on Human Rights or Article 27 of the American Convention on Human Rights.
[4] HRC General Comment No.29, para.2.
[5] Ibid.
[6] HRC General Comment No. 29, para. 4.
[7] HRC General Comment No. 29, para.5.
[8] HRC General Comment No.29, para.2.
[9] HRC General Comment No.29, para.17.
[10] Ibid.
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