The Convergence of Constitutions and International Human Rights: Taiwan and South Korea in Comparison

Abstract:     
The development of global or transnational constitutionalism has created a significant convergence of domestic constitutions and international human rights laws. This celebrated convergence is centered upon what has occurred in the West. East Asia is either being outright ignored in this discourse or is criticized as being against the trend. Interestingly, however, there are a growing number of cases where East Asian courts reference international human rights laws. This article is aimed at providing a fair and updated account by closely examining the ways that international human rights laws have been referenced in the constitutional adjudications of South Korea and Taiwan. It proceeds to distinguish typical and alternative functions that judicial reference to international human rights laws may have in domestic constitutional adjudication. This article concludes that the references to international human rights laws in both Taiwanese and Korean constitutional adjudication were made to strengthen constitutional rights protection for individuals typically disadvantaged in emerging democracies rather than answering any calls for globalization or developments for normative convergence or legal pluralism.

Number of Pages in PDF File: 32

Keywords: convergence, domestic constitutions, international human rights laws, East Asia, Taiwan, South Korea, constitutional adjudications

JEL Classification: K33

Accepted Paper Series