양심적 병역거부 - 국제인권법적 현황과 한국의 선택 -

초록

Conscientious objection to military service is the most attentive human rights issue in Korea. It is very important human rights issue when we consider human rights in Korea from the perspective of international human rights law. For the last few years, Korea has been frequently requested to improve the right of conscientious objection by the UN human rights bodies. The UN Human Rights Committee has several times issued its views in individual communications that the government of Korea has violated Article 18 of the ICCPR, providing for the freedom of thought, Nevertheless, it is hard to envisage any improvement in this problem at the moment. (This article aims to analyze how international human rights law has been developed in the issue of the conscientious objection to military service in this regard. First point is to review trends of the UN bodies’ stance and interpretation of conscientious objection for the last three decades. They include the resolutions of the former UN Commission on Human Rights and the UN Human Rights Council, the views of the UN Human Rights Committee and the decision of the UN Working Group on Arbitrary Detention. Author’s next concern is to review the jurisprudence of the European human rights bodies on conscientious objection. By analyzing jurisprudence of the Commission on Human Rights and the European Court of Human Rights, This analysis tries to provide with new information on conscientious objection.)This analysis proves international human rights bodies have reached a shared view on conscientious objection. Conscientious objection is recognized in the freedom of thought, conscience and religion, and alternative service is needed to protect these civil liberties. Alternative service is a way that respects obligation of military service as well as the right of the conscientious objectors. It is not any exaggeration to conclude the government of Korea violates international human rights law by not recognizing conscientious objection to military service or introducing alternative service. In particular, the government's continuing inaction to implement the views of the HR Committee amounts to the repeated violation of the ICCPR. To solve this problem. legislative measure should be soon pursued. However, considering current political situation, such an approach seems to be inviable. Therefore, this analysis is of the view that judicial decision, especially when the Constitutional Court reconciles its upcoming decision with the developments in international law, should be a possible solution to the issue of conscientious objection to military service.

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