외교안보연구소 발간자료

Sovereign Immunity in the Comfort Women Case and Its Policy Implications for the Republic of Korea

Sovereign Immunity in the Comfort Women Case and Its Policy Implications for the Republic of Korea

Sovereign Immunity in the Comfort Women Case and Its Policy Implications for the Republic of Korea

일본

대한민국

Ⅰ. Introduction
 Ⅱ. The Development of the Concept of Sovereign Immunity
 Ⅲ. The Question of Whether State Immunity Can Be Limited For
 Serious Human Rights Violations 
 Ⅳ. Policy Implications


Ⅰ. Introduction

The doctrine of sovereign immunity\ which is the right of a state to be immune from foreign courts\ was raised in the courts of the Republic of Korea in 2021 when comfort women victims filed compensation claims against the government of Japan. The Seoul Central District Court eventually ruled on January 8\ 2021 that Japan was not entitled to sovereign immunity because while the court recognized Japan’s acts as a sovereign act\ the atrocities constituted ‘crimes against humanity’ that were ‘perpetrated by the Japanese government in a widespread and systematic manner.. in violation of jus cogens when Japan illegally occupied Korea’. The court further emphasized the need to protect the right of access to justice for the victims as recognized in the Korean Constitution and international human right norms. Therefore\ the court ordered Japan to pay 100 million Korean won to Korean victims of sexual slavery. 

However\ in another comfort women case\ the Seoul Central District Court provided a completely contradictory decision. On April 21 2021\ the court dismissed the case by recognizing Japan’s immunity in Korean courts based on the reasoning that the doctrine of sovereign immunity is a well-established principle under customary international law. It specifically referred to the Jurisdictional Immunities case whereby the International Court of Justice(ICJ) affirmed this customary international law status of the doctrine\ and therefore\ held that Italian court’s decisions to hold Germany accountable for war atrocities were in violation of international law. 

These decisions on the comfort women case have sparked much controversy on the issue of state immunity and Japan continues to deny its participation in the proceedings and the decision itself. As the victims have appealed the April case to a higher court\ application of this international law doctrine in Korean courts continue to be debated. Against this backdrop\ this paper aims to examine and analyze current trends in international law on this issue of state immunity\ particularly with the development of international human rights law\ and foreign policy implications it may have on the Republic of Korea.


* Attached the File

IFANS PERSPECTIVES

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