성적지향과 성별정체성에 관한 국제인권법 동향과 그 국내적 적용

In recent legislative activities on human rights and nondiscrimination in South Korea, the issue of lesbian, gay, bisexual, transgender, and intersex (LGBTI) people has become controversial. In some occasions, the Korean government sided with anti-LGBTI groups, and recently the Minister of Education even made an official remark that effectively denied the nondiscrimination principle as for LGBTI people. Against this background, this article overviews the international jurisprudence that has been developed to recognize the nondiscrimination principle as to sexual orientation and gender identity under, among others, the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), and argues that the state obligations under the international law should be domestically recognized and applied. As a party to the international human rights treaties, Korea has the obligation for domestic implementation. Moreover, the Korean Constitution mandates domestic application of international law under the principle of respect for international law. In particular, the rights stipulated in ICCPR and ICESCR have been recognized to have constitutional values in several constitutional court cases. It then follows that the international jurisprudence on nondiscrimination applied to sexual orientation and gender identity may have binding effect that bears an authority equivalent to the Constitution. Even if its direct binding effect may be denied for the reason that sexual orientation and gender identity is not explicitly enumerated in international human rights treaties, the constitutional demand under the principle of respect for international law that domestic laws be consistent with international law may guide that relevant articles in the Korean Constitution, including the right to personality and pursuit of happiness, freedom of private life, and the right to equality before law, be interpreted and applied in line with the international jurisprudence. The non-discrimination principle under the international law may be set aside if there is legitimate state interest to justify differential treatment against LGBTI people in Korea. However, the reasons proffered and discussed in Korea are mostly mere expression of prejudice and homophobia that contain no truth. In fact, this indicates that the Korean government should recognize that an action intending to promote hatred against LGBTI people is actually a form of discrimination that may require governmental responses.