Statement by the United Nations Special Rapporteur on the situation of human rights defenders at the end of her visit to the Republic of Korea (29 May-7 June 2013)

Korean version in PDF

7 June 2013

Good morning, ladies and gentlemen,

Let me begin by warmly thanking the Government of Korea for inviting me and for organizing this visit. The objective of my visit was to assess, in the spirit of cooperation and dialogue, the environment in which human rights defenders, who defend and promote human rights in a peaceful manner, operate in the country. Today, I will confine myself to some preliminary observations and recommendations on some of the issues that, along with others, will be elaborated in more detail in the report once I have studied the materials and documents that I have gathered and been referred to. I will present my final report at the 25th Session of the Human Rights Council in Geneva, in March 2014.

At the outset, I would also like to note that I am not employed by United Nations and the position I hold is honorary. As an independent expert, I exercise my professional judgement and report directly to the Human Rights Council and the General Assembly

I would like to commend the Government of the Republic of Korea for its excellent cooperation and efforts to ensure that I could make the most out of my visit. I have met with the Prime Minister, Chung Hongwon, the Vice-Minister of Foreign Affairs and the Vice-Minister of Justice. I also met with officials from the Ministries of Foreign Affairs; Employment and Labour; Trade, Industry and Energy; National Defence; the Korean Navy, and the National Police Agency. Moreover, I had a chance to meet with members of the Legislation and Judiciary Committee and the Environment and Labour Committee within Parliament, as well as with the Supreme Prosecutor’s Office and the Supreme Court of Korea. I also had meetings with the Korea Communications Commission and the Korea Communications Standards Commission and with the Seoul Metropolitan Government, including one of the Human Rights Ombudspersons. I met with the Chairperson, one of the Commissioners and a team from the National Human Rights Commission of Korea (NHRCK). I also met with representatives of the Korean Electric Power Corporation (KEPCO) and from Hyundai Motor Company.

During my visit, I have had the opportunity to visit Seoul, Ulsan, Miryang, Jeju Island and Gwangju and meet with the Mayors of Miryang and Gwangju as well as with the Guanwju regional office of the NHRCK. I also met with the Head of the United Nations Development Programme, the Office of the United Nations High Commissioner for Refugees and members of the diplomatic corps. I have also had meetings with a wide range of defenders and activists who gave me a very good overview of the active and engaged civil society in Korea. I would like to thank everyone who took the time to meet with me and shared their valuable experiences and insights as well as those who helped in organising this visit.

This is the first visit of this mandate to the Republic of Korea, a country which has gone through significant and rapid changes over the past decades. South Korea has achieved impressive rates of economic growth and, at the same time, has set the foundations of democracy after a long period of authoritarianism. However, since the end of the Korean War in 1953, the strained relations with the Democratic People’s Republic of North Korea have played a key role in the shaping of the legal, political and institutional framework of South Korea.

Legal, institutional and policy framework
Korea has a well-established legal, institutional and administrative framework and it is a party to seven of the international human rights treaties and conventions. In this connection, I have encouraged the Government to ratify the UN treaties to which it is not yet a party 1, in particular the Convention on All Migrant Workers and Members of Their Families.

I was pleased to learn that authorities are trying to mainstream human rights into the Korean institutional and policy framework. There is a National Action Plan for the Promotion and Protection of on Human Rights as well as a National Human Rights Policy Council under the Ministry of Justice. I visited the City of Gwangju, which is a Human Rights City and has its own Human Rights Charter and its indicators and a very good example of human rights promotion and protection at the local level.

Overall, defenders are able to effectively carry out their work in Korea, and I have been very much impressed during my visit by the dynamism and competence displayed by Korean civil society. However, they work in a rather polarised environment where they are exposed to serious challenges which, in some instances, amount to violations of their fundamental rights and freedoms as well as to their legitimate right to promote and defend human rights, as enshrined in the UN Declaration on human rights defenders 2. I will now briefly highlight some of these challenges, which will be further developed in my report.

Freedom of expression
Freedom of expression is explicitly enshrined in the Korean Constitution; however, there are serious challenges when it comes to guaranteeing the right in practice. In this sense, I am concerned at the existence of defamation as a criminal offence in Chapter 33 of the Criminal Act which carries heavy fines and prison sentences. The criminalization of defamation leads to a considerable reduction of the space to exercise the fundamental right to freedom of expression, which is a key right to claim other rights. This has a chilling effect and leads to self-censorship by certain human rights defenders.

Moreover, I have been acquainted with the National Security Act (NSA) which, despite the fact that it has been amended on several occasions, still appears seriously problematic for the exercise of freedom of expression. The NSA has been used against defenders who have expressed criticism of Government policies and who have been labelled as “anti-government organizations”, a concept which is broad and vaguely defined in the Act, and have therefore been considered a threat to social order and the State. The issue has been raised by the UN at different levels and I would like to emphasize that constructive criticism and scrutiny of public policies is essential in any democratic society, and it should therefore be welcomed and guaranteed. I take note of the assurances made by the Government and the Judiciary that the application of the NSA is restricted to cases of clear threats to national security.

I have also raised my concerns about the control of on-line expression and dissemination of information of public interest by defenders, particularly through the work of the Korea Communications Commission and Korea Communications Standards Commission, which are bodies operating under the Government. I am concerned that vaguely defined concepts such as “harming the public interest” or “false communication” are being used by a Government-controlled body to block internet content and unduly restrict a fundamental right which is essential in the work of human rights defenders.

Therefore, I would like to add my concerns to those already expressed by the Special Rapporteur on the right to freedom of opinion and expression who, after visiting Korea in 2010, called the attention of the authorities to the fact that some laws that restrict the right to freedom of opinion and expression do not meet international standards.

Freedom of peaceful assembly
The fundamental right to freedom of peaceful assembly is guaranteed in the Korean Constitution, which explicitly prohibits any licensing of assemblies. However, the notification system that is currently in place seems to have turned into a “de facto” authorisation system by the police of peaceful rallies and protests organized by defenders. In addition, the Assembly and Demonstrations Act contains certain provisions, such as the obstruction of traffic, which impose serious limitations to the organization of peaceful gatherings and carry heavy penalties if not complied with.

During my visit, I have learned about various instances and situations where the fundamental right to peaceful assembly has been unduly restricted and that in some instances, the police has resorted to excessive use of force when handling protests. People participating in peaceful candlelight vigils have been arrested; those opposing evictions have been violently dispersed; defenders and local residents protesting against large-scale development projects, such as in Miryang or in Jeju Island, have been violently treated and arrested; and foreign defenders wanting to join gatherings in Korea have been denied entry into the country or deported.

Freedom of association and labour rights
Freedom of association is also enshrined in the Korean Constitution however the overly broad definition of “anti-Government organizations” also unduly restricts the exercise of this right. When it comes to labour rights, I observed during my visit that the existing legal framework places important limitations on the right to form trade unions where public officials, including teachers, are concerned. The case of the Korean Government’s Employees Union (KGEU) is an example of this as it has been trying to obtain legal status for several years without success mainly due to the fact that its membership includes dismissed workers.

The right to strike also seems to be unduly restricted and often criminalized through the use of provisions in the Criminal Act such as “obstruction of business”. Prosecution under these provisions is often accompanied by heavy claims for damages by companies and provisional seizures of property. This has affected defenders working on environmental rights as well as trade unionists.

I am therefore concerned about what seem to be undue restrictions to and stigmatization of those trying to legitimately associate, participate in trade unions and exercise collective bargaining, all of which are basic human rights as well as key instruments to claim other rights.

National Human Rights Commission of Korea (NHRCK)
Established in 2001 as a body independent from the Government and accredited “A” status in 2004, the mandate of the institution is broad as it receives individual complaints, carries out human rights education programmes and issues policy recommendations which are, nevertheless, not binding. When I visited Gwangju, I was pleased by the activities carried out by the local branch of the NHRCK in disseminating information on human rights issues to the public.

However, during the reaccreditation process of the NHRCK, a number of issues of concern have been raised regarding the appointment process of its Chairperson and Commissioners, consultation and participation of civil society as well as budgetary cuts. According to information I have received, the NHRCK has lost the confidence of many national stakeholders, including defenders and it is no longer seen as a key player in the promotion and protection of human rights in the country.

In order for the NHRCK to regain the confidence of human rights defenders, it must be able to work independently and professionally with members and staff who can exercise integrity and impartiality and offer trust to the Korean people and its institutions.

Promoting and protecting human rights in Korea

As I have indicated, the environment in which defenders operate in Korea is quite polarised and not always sufficiently conducive to the defence and promotion of human rights and fundamental freedoms. This seems to stem from the lack of trust between defenders and authorities. For effective dialogue to take place, both sides need to engage constructively, exercise diplomacy and patience to communicate their positions and listen to the arguments of the other side, and be solution oriented rather than only pointing out problems and challenges.

During my visit, I have also learnt about the situation of particular groups of defenders and activists, some of them at the community level, which are facing important challenges when carrying out their work or exercising certain basic rights. The following are the defenders affected:

Journalists and media workers
The situation of those journalists and media workers working on human rights issues seems of concern to me. I have received credible testimonies and allegations of harassment, intimidation and illegal surveillance of journalists who work on human rights-related issues, report on public interest information, handle corruption cases of Government officials or publically criticize the Government. Journalists have been unfairly dismissed or disciplined when they have gone on strike to protest against unfair practices within public broadcasting companies, and the cases of YTN and MBC are emblematic in this respect. Some of them have faced lawsuits for defamation which carry excessively high damage claims.

I am very concerned that these actions unduly restrict the exercise of a fundamental right and stigmatise the work of media and journalists, which play a key role in the defence and promotion of human rights. Free and independent media is an indicator of a healthy and open democracy which encourages constructive criticism, critical thinking and thorough analysis of public affairs.

Trade unionists
As mentioned before, there are important limitations to the exercise of labour rights in Korea whereby the right to collective bargaining and strike as legitimate means to claim economic and social rights are seriously curtailed. Irregular workers lack effective legal protection and retaliation against union activities in the form of unfair dismissals and acts of intimidation seems commonplace in some industries in the country. The practice of filing compensation lawsuits claiming exorbitant amounts for “obstruction of business” to unions and union members, not only criminalizes their activities but it stigmatises their work and discourages others from joining them in claiming labour rights.

The case of the two workers from the Hyundai Motor Company in Ulsan, who have been sitting-in on a high voltage electric pylon for six months protesting against the precarious situation of “in-house sub-contracted workers”, illustrates the climate of tension and distrust that prevails in some industries. I met with both sides of the conflict and it seems to me that appropriate mediation mechanisms need to be put in place to encourage dialogue and conflict resolution between labour and management.

Environmental rights defenders
Defenders and community residents protesting against large-scale development projects are also facing important challenges. I have visited communities in Miryang and Jeju Island who are opposing development projects mostly in a peaceful manner. Most of the local residents with whom I met have pointed to a lack of consultation and effective participation in the development projects as the main source of their grievances. They also claim their right to live in a clean and healthy environment and to protect the natural environment in which they live.

I have heard testimonies of acts of intimidation, harassment and physical violence against them by workers of the companies and private security firms hired by the companies. They also face charges for “obstruction of business” and receive high damage claims and temporary seizures of property when exercising their right to peacefully demonstrate against large-scale development projects. Foreign defenders coming to support them from abroad have been deported or denied entry in the country. In some instances, conflicts have been entrenched in the communities for years. All parties involved should make the necessary efforts to open and maintain dialogue. The authorities must facilitate this by setting up mediation mechanisms when necessary.

Defenders working for the rights of migrants
Documented as well as undocumented migrant workers in Korea face important challenges, including discrimination, unpaid wages, difficulties in accessing social welfare, abuses, and harassment. Defenders working on these issues include migrant workers themselves who have tried to associate to effectively claim their rights, including labour rights. However, this has not been possible as the request of the Migrants’ Trade Union (MTU) to be recognized as a labour union has not been successful so far. My concern is that, as a consequence of this situation, the status of the migrants’ union remains illegal, which denies the rights to collective bargaining and to strike to this group and makes the work of these defenders extremely challenging.

Students’ rights defenders
During my visit I learned about the work of brave young students who struggle to advocate for the rights of fellow students in a context of strict schools rules and regulations and strong social pressure to have a successful career. While I recognize the value of competition and discipline in school system, I am concerned that some of the practices in schools could amount to violations of basic rights, particularly the use of corporal punishment, or undue restrictions to the right to freedom of expression and peaceful assembly by retaliating against students’ leaders. Various UN bodies have raised these issues. But those young activists who dare to publically denounce such practices face important challenges, including disciplinary actions, fines, discrimination, verbal abuse and ostracism.

Other defenders facing challenges
During my visit I met with other groups of defenders who also face challenges when carrying out their work, including whistle-blowers; those working for the right of LGBT people; defenders working for the right of persons with disabilities; those working with escapees from the Democratic People’s Republic of North Korea and artists using their work to defend and promote human rights. In my full report, I plan to elaborate on their situation.

Preliminary Recommendations
I would like to put forth the following preliminary recommendations.

To the Government

• Expedite the ratification of those UN international treaties that are still waiting to be ratified;
• Raise awareness about the role of defenders amongst public officials by disseminating the UN Declaration on human rights defenders at the domestic level;
• Publically acknowledge and raise awareness about the importance of the role of defenders in society and foster a spirit of dialogue and constructive criticism;
• Ensure full independence and effectiveness of the National Human Rights Commission of Korea;
• Ensure defamation is only punishable under civil law and that compensation provided is proportionate to the harm done;
• Ensure that legal provisions in the National Security Act about what constitutes a threat to national security are clearly defined and only applied when is strictly necessary in order to avoid criminalization of activities undertaken in defence of human rights;
• Avoid the criminalization and use of heavy penalties against the work of defenders by conducting a thorough review of those laws and regulations affecting the exercise of the rights to freedom of opinion and expression and freedom of association and peaceful assembly which are essential to claim other rights, with a view to bring these laws in compliance with international standards;
• Consider allegations and reports of violence, intimidation, harassment and surveillance on human rights defenders; conduct prompt and impartial investigations accordingly and hold perpetrators accountable;
• Train the police and security forces in crowd control and human rights standards, including proportionate use of force and the role of defenders; and promptly investigate any allegations of human rights violations and hold perpetrators accountable;
• Ensure that the regime of notification provided for in the Constitution is upheld and put an end to the “de facto” regime of authorization that appears to be used in practice;
• Ensure that labour rights, including collective bargaining and the right to strike, can be exercised without undue restrictions or intimidations of any sort by establishing adequate mediation mechanisms to bridge between management and labour;
• Ensure that the operations of private security firms comply with international standards and respect rights of defenders, investigate any allegations of human rights violations and hold perpetrators accountable;
• Establish mechanisms for consultation and effective participation of the communities affected by large-scale development projects and ensure that the communities are involved at the initial stages of the projects.

To the National Human Rights Commission of Korea

• Implement the recommendations of the Sub-Committee on Accreditation of the International Coordinating Committee of National Human Rights Institutions in order to strengthen the independence and effectiveness of the institution;
• Ensure timely interventions, responsiveness and accessibility of the institution to all citizens and actively engage with all groups of human rights defenders.

To human rights defenders

• Ensure the dissemination of information about the UN Declaration on human rights defenders and the role of defenders at the domestic level;
• Strengthen your efforts to lobby the Government to implement recommendations from international human rights mechanisms;
• Strengthen your efforts to maintain dialogue with authorities and private actors to facilitate conflict resolution and the advancement of the protection and promotion of human rights.
• Ensure that demonstrations are carried out in a peaceful manner, properly monitored and that violations are documented and reported.

To public and private corporations

• Ensure that the actions of workers and private security firms comply with international human rights standards;
• Train workers and private security personnel on conflict resolution and international human rights standards, including the role of human rights defenders;
• Exert due diligence in relation to human rights, notably to ensure that workers’ rights as recognized in international human rights standards are respected.

As mentioned, these preliminary observations and recommendations will form the basis for the report I will present to the next session of the UN Human Rights Council, which will take place in Geneva in March 2014.

Thank you for your attention.

Notes:
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1. UN Convention on the Rights of All Migrant Workers; UN Convention for the Protection of all Persons from Enforced Disappearance; Second Optional Protocol to the International Convention on Civil and Political Rights on the abolition of the death penalty; Optional Protocol to the UN Convention against Torture, and Other Cruel, Inhuman and Degrading Treatment or Punishment; Third Optional Protocol to the UN Convention on the Rights of the Child; Optional Protocol to the Convention on the rights of Persons with Disabilities.

2. UN Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms, 1998.