국가의 적극적 인권의무에 대한 체계적 이해와 소수자 인권 맥락에서의 고찰

Abstract

Under international human rights norms, the State’s human rights obligations have been systematized into the duties to respect, protect, and fulfil human rights, and the State’s positive human rights obligations hold significant meaning across all three types of obligations. In international human rights norms and practice, the obligation to respect human rights has been understood in substantive terms based on the principle of effectiveness, such that its implementation may require not merely States’ abstention or non-interference, but also active intervention, including the reform of laws, institutions, and policies that give rise to human rights violations and discrimination. With regard to the obligation to protect human rights against violations committed by private actors or other non-state factors, international human rights norms and regional human rights courts have elaborated its content and standards of review around the duty of due diligence, which requires States to prevent foreseeable human rights violations in advance and to respond appropriately to violations once they have occurred. The obligation to fulfil human rights calls for the most complex and multifaceted forms of positive State action and is characterized as a concrete obligation of conduct requiring States to make every effort currently available to achieve the more complete and equal realization of human rights. Moreover, international human rights interpretative practices require States to comply with heightened positive obligations in cases involving the rights of social minorities and vulnerable groups. On the basis of the tripartite typology of human rights obligations, a multidimensional and comprehensive understanding of States’ positive human rights obligations can be developed, enabling more systematic and coherent analysis and evaluation of State responses in domestic human rights cases, as well as the formulation of more concrete and effective courses of action.