국제법상의 소수자 개념정의에 관한 소고: 국적소지요건에 특히 주목하며

Abstract

The definition of the concept of a minority for present international law is one of the most critical aspects in the discussion of the effective protection of minority rights; depending on how the constitutive elements for receiving a minority status as the holder of minority rights are viewed, the scope of minority protection under international law could differ widely. Even though the traditional definition of a minority has been accepted generally as the definition of a minority at the theoretical level, it has an inherent fundamental problem in its demand of holding nationality of the State of residence for recognizing ethnic, religious, and linguistic minorities. Given that citizenship has the comprehensive elements of civil, political, social and cultural rights within the domestic legal order, the citizenship criterion in determining minority status has a vital dimension for the effectiveness of the protection of persons belonging to minorities, for determining citizenship is likely to be abused by the States’ discretionary interpretation of citizenship criteria. At the same time, the attempts to define the concept of a minority made by the UN and European levels on the basis of flexibility clearly indicate the controversial nature of the nationality requirement in determining minority status. Unlike the definition under the traditional view, the recent approach does not appear to require a nationality or citizenship of a State in which the members of minorities allegedly reside. In this article, this writer has argued that more attention should be paid to factual elements such as a close relationship with the State concerned and the residential linkage with it by persons belonging to ethnic, religious or linguistic groups, while at the same time respecting the traditionally accepted objective and subjective elements for the determination of a minority. This means that the scope of the definition of persons belonging to minority groups for the purpose of minority protection in present international law is being expanded and this is a meaningful development, indeed, in the sense of providing effective minority protection. Accordingly, the ‘persons’ who belong to minorities within a State, having met subjective and objective elements, such as unique characteristics of culture, language, religion, and the sharing of a common sentiment for maintaining their cultural identity, but holding no citizenship of their State of residence, due to restrictive, unreasonable legislative measures by the State concerned, may be included in the category of a minority for the purpose of the protection of persons belonging to minorities under international law. Based on the analysis in this article, the writer has proposed a working definition of the concept of a minority in the following terms: a national or ethnic, religious and linguistic minority is a group numerically smaller than the rest of the population in their State of residence, having lived for a significant period of time in its territory. The members of the group have ethnic, religious or linguistic features differing from the rest of the population and show a sense of mutual solidarity for the preservation of their unique culture, tradition or language. This definition differs from the traditional one in that it has made clear that no requirement of holding the nationality of the State of residence is needed for receiving minority status, and is more concerned with the historical and factual aspects of persons belonging to minorities to their State of residence.