대외적 자결권에 관한 국제법 상황

International Legal Situation Concerning the Right to External Self-Determination - with Special Reference to the Right of Oppressed Minority Groups to Unilateral Secession -

It is generally accepted that positive international law grants the right to external self-determination to peoples subject to alien subjugation, domination and exploitation. As such, this right has been emphasized in the context of decolonization. However, the international community has recently been confronted by a trend of unilateral secession of minority groups in existing States outside colonial context. It goes without saying that not all minorities have a right to secession. The purpose of this paper is to analyze the actual situation of international law as to whether such a right can be afforded at least to minority groups ‘oppressed’ by the State to which they belong. First of all, this paper defines the internal and external aspects of the right to selfdetermination and examines the various theories concerning the right to secession based upon the right to self-determination. It can be suggested that the ‘remedial secession’ theories are the most persuasive and appealing theses, in that they accentuate the justifiability of granting a right to secession as a last resort to minority groups who have been oppressed and discriminated against in a State. In this regard, the question is raised, as the starting point for substantive discussion on the subject of this paper, whether a minority group can be qualified as a people who is the subject of right to self-determination. The third section analyzes the practice of the international community regarding this issue. It is suggested that international documents have shown a tendency to admit, to a limited extent, a right of oppressed minority groups to external self-determination, which has however not yet been reflected positively in the practice of the international community. The fourth section is focused on the practice of States, which has been proved inconsistent regarding the issue in question. The fifth section compares the pros and cons of recognition of the right of oppressed minorities to unilateral secession as a last resort for serious discrimination and grave human rights violations. In the sixth and final section, the present author concludes this paper by stressing that these problems in question should not be resolved by State sovereignty-centered politics, but through human rights-based approaches.