민주적 정치참여권의 국제법적 근거에 관한 소고

Abstract

If the feature of the debate on the right to political participation in international law during the Cold War era was ideological rather than substantive in its nature, it appears now to be moving in the direction of seeking substantive normative aspects for political participation. It is true that even today as the ideological conflicts between capitalism and communism have ended, the essence of the principle of democracy may be debatable depending on value judgments and unique political traditions and cultures in each State. However, it is also true that multiple political-party systems, guaranteed free and fair elections on the basis of the equality principle and a comprehensive possibility for direct and indirect political participation by members of the political community at the domestic legal level are being widely accepted as the minimum requirements for the respect of the right to political participation under contemporary international law. Given that international law is primarily concerned with the regulation of the relations between States and grants much power to them in a variety of ways on the international plane, it is quite conceivable that the basic structure and features of classical international law are not in harmony with the principle of democracy. Nevertheless, the development of positive international human-rights law since the establishment of the United Nations and the accumulation of the records of the United Nations’ election-monitoring practice reveal that the normative bases of the right to democratic political participation have started to emerge. While one must not overstate the case, the list of sources from which the right to democratic political participation under contemporary international law is impressive. Universal and regional human-rights treaties, over forty years of UN election-monitoring reports, legal opinions of the United Nations Human Rights Committee and regional tribunals illustrate the point. These developments in which the democratic principle that the government must be established by the will of the people and represent their interests, were unimaginable under the structure of classical international law. In particular, the significance of the positive effects of the UN election-monitoring process since the end of the Cold War era upon the establishment and consolidation of democratization in the so-called failed States is enormous. It may be that the question of the political process at the domestic legal level is no longer excused as a ‘domestic or internal matter’ so as to escape from spheres of international normative pressures. Having said that, it is too early to say that the right to democracy under international law has been firmly established as an autonomous right. However, it also cannot be denied that the right to democratic political participation finds legal and normative bases under positive contemporary international law.