법의 목적론적 해석과 소수자보호의 법리 전개 - 국제법의 관점에서 -

Although the international protection of ethnic, religious and linguistic minorities has long been discussed in the field of international law, relevant international legal standards are still quite vague and remain unsatisfactory in terms of precise, effective minority protection. The topic of minority protection itself with special emphasis on the full respect of ethnic, religious or linguistic differences for minority groups within nation states is a highly sensitive and politically controversial issue. For this reason, international legal documents for minority protection have tended to be vaguely worded at best, which has consistently raised the fundamental problem of how the appropriateness and effectiveness of minority protection under international law can be secured. With this in mind, this article pays particular attention to the importance of the teleological interpretation of minority protection under international law, as it has contributed greatly to the development of more elaborated legal standards of such protection. This may be seen through the critical assessment of jurisprudence of international tribunals and semi-judicial bodies with regard to the issues of minority protection. In particular, the jurisprudence of the Permanent Court of International Justice (PCIJ) during the League of Nations period had great normative impacts upon the subsequent development of minority protection under international law. The PCIJ employed the teleological method of treaty interpretation extensively in making sense of minorities treaties during the League of Nations period, and thus was able to establish fundamental criteria for the protection of ethnic, religious or linguistic minority groups. Such positive intervention by the PCIJ in minority protection cases through the active use of the teleological method of treaty interpretation was significant, because it eventually contributed to the establishment of normative foundations for subsequent development of international human rights law after the creation of the United Nations in 1945. The practices of the PCIJ, with their focus on teleological interpretation, seem to have been followed by the jurisprudence of judicial and semi-judicial bodies with regard to cases or issues of minority protection in contemporary international law. The work conducted by the Committee on the Elimination of Racial Discrimination and the FCNM Advisory Committee may be considered examples of such jurisprudence. This article also points out that judicial efforts for the elaboration of legal standards for the protection of minority rights, in the sense of effective protection in accordance with the teleological approach of law, have been challenged by the practice of the so-called concept of “margin of appreciation” in the European Court of Human Rights. Given the fact that persons belonging to ethnic, religious or linguistic minorities tend to be easily exposed to many kinds of vulnerable situations, whether political, social or economic, the practice of employing the “margin of appreciation” concept in resolving cases or issues related to minority rights would seem problematic and inappropriate for the purposes of securing ‘effective minority protection.’