[Contribution] The Comfort Women Decision and the Principle of Jurisdictional Immunity
The Central District Court of Seoul, recently, denied Japan’s jurisdictional immunity and ruled in favor of the plaintiffs, who demanded compensation from Japan for their damages as comfort women. Jurisdictional immunity is a principle in international law, which states that the actions of sovereign nations cannot be litigated by a civil court in another nation. The lawsuit brought about by the plaintiffs here clearly deals with the sovereign action of Japan, which means jurisdictional immunity must be applied. However, the courts ruled against this, with their rationale being that the actions taken by Japan are violations of peremptory norms that are crimes against humanity, which overrules the jurisdictional immunity.
However, in the realm of international law, immunity from domestic civil lawsuits are distinct from “violation of peremptory norms” and “crimes against humanity”. The International Court of Justice found that a ruling by the Italian Court – which found that German state immunity did not apply in a case where Italian plaintiffs sued Germany for German forced labor during World War II and claimed that this is a violation of a peremptory norm - was a violation of international law. In response to this, the Italian congress created a law that suspended the validity of decisions made by the Italian court.
One might misunderstand that, if jurisdictional immunity is applied, it would be unjust, since it would bar victims from receiving compensation. However, this is not the case. There is a way to resolve the problem of individual claims, separate from the issue of jurisdictional immunity that is in line with international law. For example, the victims’ country of nationality can execute diplomatic protection, agree with the relevant nations to form a temporary international court dealing with the claims, and resolve the issues on a case by case basis. Also, it would be possible to sign a treaty that solves all of the rights to claim issues holistically.
Diplomatic relations between Korea and Japan were established in 1965 through the Treaty on Basic Relations between the Republic of Korea and Japan. And they also signed the 1965 Claims Agreement where all issues around individual claims were to be finally resolved. According to this agreement, the Korean government, which received funds from Japan, must compensate the victims. In accordance to this, the Korean government did indeed create a special law, and has paid compensations to former comfort women and former mobilized workers. This term, “compensation”, does not legally include the assumption that Japan broke any laws, which is the argument used by some to justify the idea that it is possible to demand more reparations from Japan unrelated to the Claims Agreement. However, the Treaty on Basic Relations and the Claims Agreement clearly states that both parties agree that all issues of claims, regardless of whether or not any international laws were broken, were finally resolved.
According to international law, if a conflict arises regarding interpretation of the Claims Agreement, it must be resolved through a method that both parties agreed to. The courts of Korea cannot unilaterally exercise civil jurisdiction . Japan has compensated former comfort women through the Asian Women’s Fund in 1995. In 2015, in accordance with an agreement between the Korean and Japanese governments for the final resolution of the comfort women issue, a new foundation called the Reconciliation and Healing Fundation was established, funded by the 1 billion Yen paid by the Japanese government, which was then paid out to former comfort women again. The 2015 agreement was not approved in congress, so under domestic law, it does not have the effect of an actual law. However, in the realm of international law, the principle of good faith takes effect, so the agreement cannot unilaterally be nullified by Korea. There is also the argument that the executive branch must respect the decision made by the courts, due to the principle of separation of powers, but this does not apply to the realm of international law. If a diplomatic solution to the conflict between Korea and Japan arising from this court decision is impossible, the only solution, after all, is for both countries to agree to go to the international courts, in accordance with international law.
The Kukmin Daily, March 2nd (Ju Jinyul, Professor, Pusan National University)