강행규범과 국가면제의 경합: 위안부 판결과 ICJ 관할권 면제 사건의 법리

Abstract

On December 28, 2015, the foreign ministers of Korea and Japan announced in a press conference that the comfort women issue has been finally and irrevocably resolved. Japan's Foreign Minister Fumio Kishida issued a position statement from Prime Minister Shinzo Abe that “acknowledges and apologizes for the military's involvement and responsibility in the comfort women issue.” Abe politely apologized to Korean President Park Geun-hye over the phone, and the Japanese government contributed 10 billion won to the Reconciliation and Healing Foundation to be distributed to the victims. On January 8, 2021, the Seoul Central District Court ruled against the comfort women agreement between Korea and Japan. The court ruled that state immunity does not apply to crimes against humanity, such as the comfort women issue, and ordered the Japanese government to pay compensation to the victims. On April 21, 2021, the Seoul Central District Court dismissed the plaintiffs' claims in a separate comfort women case, applying state immunity to the sovereign acts of a foreign country. However, on November 23, 2023, the Seoul High Court ruled in favor of the plaintiffs on appeal, rejecting state immunity for Japan. Japan condemned the ruling as a clear violation of international law and strongly protested the decision to the Korean government. In its 2012 judgment on the Jurisdictional Immunities of the State Case, the ICJ rejected Italy's arguments regarding the gravity of the violations, the relationship between jus cogens and the rule of state immunity, and the denial of state immunity as a last resort argument. The Court explained state practice through numerous post-war agreements and judgments rendered by national courts. The court found that customary international law denying state immunity had not been established at the time of the ruling, as Italy claimed. In this context, the confusion in Korean courts and the domestic conflict over the comfort women issue must be understood and resolved in light of the realities of international politics and current international law(lex lata).