Spanish Translation of this article done by Bea can be viewed (traducción en español aquí) HERE
By: Jimmie of TheJYJFiles
Introduction and Disclaimer
First of all, it’s only fair to my readers to reveal upfront from the start that I am not (yet) a lawyer, nor have I studied Korean law. I have nonetheless agreed to broach this subject because my work requires me to be intimately familiar with the norms and legal principles that I will be addressing here in relation to DBSK’s original contract—namely, norms and principles of international human rights, labour and intellectual property law.
Secondly, the Constitution of the Republic of Korea (aka South Korea), like that of most countries, requires that the first recourse in any legal proceeding be Korea’s national laws and statutes. That is to However, an analysis from the perspective of relevant international law is more than casually useful, because international law serves as a kind of “threshold guarantee” for national law. That is to say, countries that have signed and ratified treaties, though often encouraged to go above and beyond its protections in their national law, are obligated to NOT FALL BELOW THEM. And so, the fundamental provisions of international human rights treaties, for example, are found transcribed in most countries’ constitutions. In addition, State parties to a treaty are not only obligated to observe the letter of the treaty, but also, under Article 18 of the Vienna Convention on the Law of Treaties (1969), are obligated to “refrain from acts which would defeat the object and purpose of a treaty…” even if a country hasn’t yet ratified it or the instrument hasn’t yet entered into force.
Thirdly, in the interests of harmonising with the identity of the destined platform—which is, after all, an op-ed blog and not an academic journal—I will restrict myself to the norms and refrain from going into the case-law and/or commentary thereon issued by legal and intergovernmental bodies. If anyone would still like the extra commentary, you may contact me and I shall try my best to direct you to the right sources. Now, without further ado…