Yoomin Won, Reasonableness Review and Proportionality Analysis in the ICESCR: Reviewing Spanish Housing Rights Cases, The Korean Journal of International Law, Vol.69, No.2(2024.6), pp.7-57.
<Abstract>
The individual communications system has been adopted for socio-economic rights as the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) came into effect in 2013. As for standard of review, article 8(4) of the OP-ICESCR provides that the Committee shall consider the reasonableness of the questioned measures of the State Party. This article examines the standard review applied in individual communication cases focusing on the Spanish forced eviction cases, which is the majority of the cases. The Committee has employed proportionality analysis, evaluating whether forced evictions were carried out in accordance with the general principles of reasonableness and proportionality. This involves assessing the socio-economic situation of the evicted persons, and proportionality analysis of the legitimate objective of eviction and its consequences for the evicted persons. The Committee applies article 4 of the Covenant, which sets out the conditions for States when taking measures restricting rights under the Covenant, as a legal ground for proportionality analysis. When assessing whether a State has violated its obligations, the Committee particularly considers whether such proportionality analysis was conducted in domestic court eviction proceedings.
The proportionality analysis or proportionality-inflected reasonableness provides guidelines for South Korea, a State party to the ICESCR, concerning socio-economic rights. The Constitutional Court of Korea has adopted a lenient standard of review, granting the state broad discretion regarding socio-economic rights. The Court considers measures unconstitutional only when they lack any legislation or clearly exceed the limit of discretion. Such standards do not apply proportionality analysis for individuals, especially for vulnerable groups, affected by measures limiting socio-economic rights. To fulfill its obligations and realize socio-economic rights as a State Party to the ICESCR, the Korean judiciary needs to reconsider its standard of review.
<Keywords>
ICESCR, individual communications, reasonableness, proportionality, right to housing
Yoomin Won, Reasonableness Review and Proportionality Analysis in the ICESCR: Reviewing Spanish Housing Rights Cases, The Korean Journal of International Law, Vol.69, No.2(2024.6), pp.7-57.
<Abstract>
The individual communications system has been adopted for socio-economic rights as the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) came into effect in 2013. As for standard of review, article 8(4) of the OP-ICESCR provides that the Committee shall consider the reasonableness of the questioned measures of the State Party. This article examines the standard review applied in individual communication cases focusing on the Spanish forced eviction cases, which is the majority of the cases. The Committee has employed proportionality analysis, evaluating whether forced evictions were carried out in accordance with the general principles of reasonableness and proportionality. This involves assessing the socio-economic situation of the evicted persons, and proportionality analysis of the legitimate objective of eviction and its consequences for the evicted persons. The Committee applies article 4 of the Covenant, which sets out the conditions for States when taking measures restricting rights under the Covenant, as a legal ground for proportionality analysis. When assessing whether a State has violated its obligations, the Committee particularly considers whether such proportionality analysis was conducted in domestic court eviction proceedings.
The proportionality analysis or proportionality-inflected reasonableness provides guidelines for South Korea, a State party to the ICESCR, concerning socio-economic rights. The Constitutional Court of Korea has adopted a lenient standard of review, granting the state broad discretion regarding socio-economic rights. The Court considers measures unconstitutional only when they lack any legislation or clearly exceed the limit of discretion. Such standards do not apply proportionality analysis for individuals, especially for vulnerable groups, affected by measures limiting socio-economic rights. To fulfill its obligations and realize socio-economic rights as a State Party to the ICESCR, the Korean judiciary needs to reconsider its standard of review.
<Keywords>
ICESCR, individual communications, reasonableness, proportionality, right to housing