Special Rapporteur ends visit to South Korea and makes recommendations

June 7, 2013

At the end of a 10-day fact-finding mission to South Korea UN special rapporteur on human rights Defenders, Margaret Sekaggya, said Friday that South Korea’s 65-year-old national security act posed a “seriously problematic” challenge to freedom of expression.  It prohibits the printing, distribution and ownership of any material deemed “anti-state” and outlaws any organisation advocating overthrow of the government.Flag of South Korea
I have been acquainted with the national security act which, despite the fact that it has been amended on several occasions, still appears seriously problematic for the exercise of freedom of expression,Sekaggya said.  Citing instances where the act had been invoked against human rights groups who have expressed criticism of government policies, she urged the government to clearly define the legal provisions in the law.  It should then be applied only “when is strictly necessary in order to avoid criminalisation of activities undertaken in defence of human rights“, she told reporters in Seoul at the end of her mission.
Sekaggya also expressed concern about the existence of defamation as a criminal offence that carries heavy fines and prison sentences in South Korea.  “This has a chilling effect and leads to self-censorship by certain human rights defenders,” she said.  Sekaggya also urged Seoul to ratify the treaty on migrant workers, saying they faced discrimination and abuse in South Korea, with unpaid wages and difficulties in accessing social welfare.

 

Overall, defenders are able to effectively carry out their work in Korea, she stated, “and I have been very much impressed during my visit by the dynamism and competence displayed by Korean civil society”. Sekaggya then briefly highlighted some of these challenges, which will be further developed in her final report:

 

 

Freedom of expression 
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 National Security Act (NSA) 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.

 

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.

 

Freedom of peaceful assembly
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 some instances, the police has resorted to excessive use of force when handling protests

 

Freedom of association and labour rights 

 

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) 

 

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.

 

Promoting and protecting human rights in Korea 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 above

 

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.

 

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.

 

 

for full statement see: DisplayNews.

 

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