12･28 ‘위안부’ 합의의 규범적 재조명 국제 강행규범(Jus cogens)을 중심으로

Abstract

The purpose of this study is to objectively investigate the problems of the December 28 South Korea-Japan Comfort Women Agreement and suggest future plans by illuminating the December 28 agreement from the perspective of Jus Cogens as international treaty. To this end, this study tried to examine the formation process and the concept of Jus Cogens, as well as its role in modern society. Jus Cogens is the ultimate absolute norm of international law. As such, the role and meaning of Jus Cogens are becoming more important as a fundamental and essential norm that cannot be violated by any nation. From the standpoint of this Jus Cogens, we can find the following problems. The comfort women case is international human rights violation of Jus Cogens, and the international consensus and the acceptance of international norms is inevitable. However, the December 28 agreement has been declared as a “final and irreversible resolution” by two countries, excluding all the previous recommendations of international human rights laws. It is problematic in two different manners: two countries made a final declaration but international human rights violation of Jus Cogens has no legal prescriptions; more importantly, the agreement was made without any recognition of legal responsibility or apology, which should be the core of the comport women case. The agreement completely neglected human rights norms such as compensation for victims, punishment of responsible persons, education of the history, and description of this in a textbook, and these human rights norms were emphasized through various international organizations. Such an agreement cannot be internationally recognized as it violated Jus Cogens in its contents and its initial deception of responsibility. Korea and Japan should revisit the December 28 agreement which neglected Jus Cogens, and do more diplomatic efforts for renegotiation and amendment to reach a level that can be agreed by international society.