The Development of International Law on State Immunity and the Need for the Legislation on Jurisdictional Immunities in Korea
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The past does not remain in the past, but inevitably influences on the present. The judgment of a Chamber of the Seoul Central District Court in January 2021 is unprecedented in the judicial history of Korea, denying immunity to Japan for international crimes. In reverse, another Chamber of the Seoul Central District Court granted immunity to Japan in April. It looks that the latter Chamber erred the previous judgments by the Supreme Court of Korea and the Constitutional Court of Korea. The issue of sexual enslavement of Korean women during Japan’s colonial rule of the Korean Peninsula from 1932 to 1945 is at the heart of the judgments and has not been resolved yet. Therefore, the issue as to whether Japan may enjoy state immunity before the Korean courts is most likely to reappear. In this regard, judges need guidelines in making judgments about the issues of the past and such guidelines should take the form of law promulgated by the National Assembly of Korea. Although it is difficult to make legislation on jurisdictional immunities when the past atrocities are involved, it does not seem justified to leave the matter solely to the judges. It is right time to search for the ways to enact a law for a better future of Korea-Japan relations.
Abstract
The past does not remain in the past, but inevitably influences on the present. The judgment of a Chamber of the Seoul Central District Court in January 2021 is unprecedented in the judicial history of Korea, denying immunity to Japan for international crimes. In reverse, another Chamber of the Seoul Central District Court granted immunity to Japan in April. It looks that the latter Chamber erred the previous judgments by the Supreme Court of Korea and the Constitutional Court of Korea. The issue of sexual enslavement of Korean women during Japan’s colonial rule of the Korean Peninsula from 1932 to 1945 is at the heart of the judgments and has not been resolved yet. Therefore, the issue as to whether Japan may enjoy state immunity before the Korean courts is most likely to reappear. In this regard, judges need guidelines in making judgments about the issues of the past and such guidelines should take the form of law promulgated by the National Assembly of Korea. Although it is difficult to make legislation on jurisdictional immunities when the past atrocities are involved, it does not seem justified to leave the matter solely to the judges. It is right time to search for the ways to enact a law for a better future of Korea-Japan relations.
참고문헌 (33)
- Oppenheim, L., "International Law: A Treatise – Vol. I Peace", pp.22~ (1912), Longmans, Green and Co
- Allen, Elanor Wyllys, "Position of Foreign States before National Courts, Chiefly in Continental Europe", Am. Pol. Sci. Rev, 28, pp.142~ (1934)
- Eltis, David, "Slave prices, the African slave trade, and productivity in the Caribbean, 1674-1807", Econ. Hist. Rev, 58, pp.673~ (2005)
- Fox, Hazel, "In Defence of State Immunity: Why the UN Convention on State Immunity is Important", Int’l & Compar. L. Q, 55, pp.399~ (2006)
- Jarvis, Robert M., "The Tate Letter: Some Words regarding Its Authorship", Am. J. Legal Hist, 55, pp.465~ (2015)
- Lovejoy, Paul E., "The Volume of the Atlantic Slave Trade: A Synthesis", J. Afr. Hist., 23, pp.487~ (1982)
- Sinclair, Ian M., "The European Convention on State Immunity", Int’l & Compar. L. Q, 22, pp.154~ (1973)
- Warbrick, Colin, "State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?", Int’l & Compar. L. Q, 47, pp.951~ (1998)
- Whytock, Christopher A., "Foreign State Immunity and the Right to Access", B.U. L. Rev, 93, pp.2033~ (2013)
- "Notes and Comments, Sovereign Immunity. Waiver and Execution: Arguments from Continental Jurisprudence", Yale L. J., 74, pp.889~ (1965)
- , May 23, 1975, 74Ma281, , 1975
- , Dec. 17, 1998, 97Da39216, , 1998
- , Jan. 8, 2021, 2016Gahap505092, , 2021
- "The Exchange v. McFaddon, 11 U.S. 116 (1812)", ~ (1812)
- "Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (1983)", ~ (1983)
- "Von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246 (D.D.C. 1985)", ~ (1985)
- "Amerada Hess Shipping Corp. v. Argentine Republic, 638 F. Supp. 73 (S.D.N.Y. 1986)", ~ (1986)
- "Amerada Hess Shipping v. Argentine Republic, 830 F.2d 421 (2d Cir. 1987)", ~ (1987)
- "Argentine Republic v Amerada Hess Shipping Corp, 488 US 428 (1989)", ~ (1989)
- 4 A. & E. 59, , 1873
- "The Parlement Belge (1880) 5 P. D. 197", ~ (1880)
- 2 WLR 827, , 1999
- "Italian Constitutional Court Judgment No. 238", 2014, 2014
- "Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment", I.C.J. Rep. 99, ~ (2012)
- "North Sea Continental Shelf, Judgment", I.C.J. Rep, 3~ (1969)
- "Al-Adsani v. The United Kingdom (No. 35763", 97), 2001
- "Prosecutor v. Kunarac et al., Judgment Trial Chamber, IT-96-23-T & IT-96-23", 1-T, 22 February 2001, 2001
- "Draft articles on the jurisdictional immunities of States and their property, with commentaries, 2 Y.B. Int’l L. Comm’n, U.N. Doc. A", CN.4SER.A, Add.1 (Part 2) (1991), 1991[DOI]
- U.N., Econ. & Soc. Council, "Rep. on the mission to the Democratic People’s Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime, U.N. Doc. E", C.4, Add.1, 1996[DOI]
- U.N., Econ. & Soc. Council, "Contemporary Forms of Slavery - Systematic rape, sexual slavery and slavery-like practices during armed conflict, U.N. Doc. E", C.4, 13, 1998[DOI]
- "Report of the Working Group on Jurisdictional Immunities of States and Their Property, 2 Y.B. Int’l L. Comm’n, U.N. Doc. A", CN.4SER.A, Add.1 (Part 2) (1999), 1999[DOI]
- Int’l Law Comm’n, "Rep. on the Work of Its Seventieth Session, U.N. Doc. A", 73, pp.2018, ~
- Int’l Law Comm’n, "Rep. on the Work of its Seventy-First Session, U.N. Doc. A", 74, pp.2019, ~