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The consolidation of bases in international law for minority protection:With emphasis on the organic interpretation of international law

  • DONG-A LAW REVIEW
  • 2017, (77), pp.125-158
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law
  • Received : September 27, 2017
  • Accepted : November 23, 2017
  • Published : November 30, 2017

Jungwon Park 1

1단국대학교

Accredited

ABSTRACT

This article attempts to consolidate bases in international law for the effective protection of persons belonging to ethnic, linguistic or religious minority groups in their state of residence. For this purpose, it tries to draw international rules and principles as well as rights for protection of such minorities, with the goal of offering fundamental bases for minority protection in international law. This type of academic approach seems necessary and urgent, in that international law documents regarding ethnic minority protection have been scattered, vague and often insufficient in their scope and range. Basically, minorities in an international law sense refer to persons who belong to ethnic, religious or linguistic minority groups with strong subjective beliefs and determination to maintain and promote their own cultural identities in their state of residence. This article argues that bases in international law for effective protection of such minorities may be found in the existence of equality rights, the right to nationality, the right to cultural identities and the participatory rights (or political rights) of minorities. The important point is that all these rights or normative bases under international law for minority protection have been interlinked, thereby contributing to effective minority protection in a holistic sense. The right to equality or the principle of equality in the sense of substantive equality may be invoked extensively so that it can cover every field of social life for the persons belonging to such minority groups in their state of residence. This means eventually that they are entitled to ‘substantive’ equal protection in their state of residence. Moreover, a new understanding of the concept of nationality in international law, which has given emphasis to the genuine link between natural persons and their state of residence, may contribute to consolidation of the protection of minority groups in their state of residence in the context of the right to dominant and effective nationality in international law. The right to cultural identities for ethnic, linguistic or religious minorities is also very comprehensive in its scope, given that the concept of ‘culture’ may be applied very widely. At the same time, the right to cultural identities may be secured more effectively through the guarantee of participatory rights for minorities. This is because, if their access to diverse public-issue areas affecting their cultural identities in their state of residence were not guaranteed in a substantive way, their right to cultural identities would ultimately be rendered empty and meaningless. In particular, the right to self-determination, which is a fundamentally critical principle of international law, may provide a more solid normative basis for the ‘political rights’ of persons belonging to such minorities. Such political rights of ethnic, linguistic or religious minorities could be made more evident and effective with an emphasis on the aim of democracy and the internal aspect of self-determination in contemporary international law. It is true, however, that bases in international law for minority protection still seem insufficient and inherently limited in many ways, including the unsatisfactory level of concrete policy implementation and enforcement mechanisms found in many states. The nonexistence of a universal treaty for minority protection at the UN level attests to this limitation of minority protection clearly. Nevertheless, further scholarly attempts to consolidate and elaborate the bases in international law for effective minority protection should continue to be made.

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