2. Right to Self-Determination
A. Human Rights Status 2022
The right to self-determination, protected by the Constitution, refers to the individual's
right to decide for him/herself on important private matters without being interfered by
public authorities. Depending on the circumstances, this includes the right to discover one's
own identity. While deriving the ‘general personality rights’ and the ‘right to pursue
happiness’ from Article 10 of the Constitution, the Constitutional Court explained that “the
right to decide one’s own destiny is premised on the individual’s right to personality79) and
the right to pursue happiness.”80)81)
In fact, all right to liberty includes the ability to decide one's own actions or status without
external interference or obstruction. Therefore, the right to self-determination is inherently
included in the foundation of all freedoms under the Constitution. The scholars see that the
matters of self-determination, which are not included in the protection of individual
fundamental rights, are primarily regarded as a matter of the ‘right to self-determination,’82)
and the matters that can be classified as areas of protection inherent in the right to
self-determination include issues related to life planning, life and death, sexual decisions,
and the ability to choose and pursue a lifestyle, etc.
The right to self-determination is also a fundamental right under the Constitution and can
be limited by law to the minimum extent necessary according to the principle of proportionality
pursuant to Article 37(2) of the Constitution, if necessary for national security, maintenance
of order, and public welfare. However, the principles of self-responsibility and guardianship
are especially problematic in the limitation of the right to self-determination.
79) Here, ‘general personality rights’ refers to the general protection of the basic conditions related to personal identity
and autonomy, which are the prerequisites for the free expression of personality.
80) According to the Constitutional Court, (Decided on Jun. 1, 2000, 98HunMa216; Constitutional Court, Decided on
Mar. 29, 2007, 2004HunMa207) the ‘right to pursue happiness’ protects as a fundamental right the possibility of
acting freely in order to obtain what each person considers happiness. In other words, “it refers to the right to
freedom in the comprehensive sense that citizens can freely pursue happiness without interference from state
power.”
81) Constitutional Court, Decided on Sep. 10, 1990, 89HunMa82.
82) Lee, Geum-ok, Analysis of Constitutional Court precedents on the right to self-determination, North East Asia Legal
Studies, Vol. 15, No. 2, 2021.
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