“욕야카르타 원칙”에 대한 비판적 고찰

In Korea, the main current legal issues related to the gender queers are decriminalization of homosexual activity, enactment of anti-discrimination law, equality of access to goods & services and use of facilities, institutionalization of same-sex partnership, and collision of freedom of religion and expression with gender ideology. It should be noted that “Yogyakarta Principles” has been referred as a source of law in regard with gender queers’claims. The fundamental question of this paper is whether the Principle can be a binding norm. The following two propositions are totally different. The one is that human rights of gender queers should be respected; the other is that all acts of non-heterosexuality based on the various sexual orientation (i.e. gay, lesbian, bisexuality) are human rights. Even if it is considered that homosexual acts fall under certain freedoms and rights (e.g., freedom of privacy, freedom of general action, etc.), they may be restricted by law for the order maintenance and the public welfare. In that respect, it is not appropriate to claim homosexual activities or same-sex marriage as the universal human rights without considering the situations that differ widely from country to country. Therefore, it is totally inappropriate to regard the Yogyakarta principle, which does not recognize these facts, as an international legal norm that should be incorporated in the domestic law. Since the Principle has a global influence today, an objective analysis of it is very necessary. If there is a reasonable basis for the claim, appropriate measures must be taken. However, if the claim is faulty or unsound, it should be clearly pointed out and rejected.