2015년 한일 ‘위안부’합의의 국제법적 지위- 조약인가 비조약합의인가?

Abstract

When the two governments of Korea and Japan pronounced the so-called “Comfort Women” Agreement on December 28, 2015, both scholars and practitioners showed great interest in the legal status the Agreement for practical reasons. It is because the legality of the procedures of the conclusion of the Agreement, the Agreement’s effect, the legal problems ensuing from denunciation of the Agreement, and the procedures for objection to the Agreement etc. depend whether the Agreement is a treaty or not. The opinions of domestic scholars and practitioners on the legal status of the Agreement are mostly the same. They conclude that the Agreement is a non-treaty agreement rather than a treaty. However the reasons for such conclusion differ among them. Many say the Agreement is not a treaty because it was concluded in oral form. This argument is hard to be supported from an international legal point of view because states have the freedom of choosing the form of treaty conclusion. Whether states conclude a treaty in oral form or in written form is left to their decision. Whether any agreement between states is a treaty is decided according to the intent of the states concluding it. This intent may be manifested directly in the agreement for indirectly through other evidences. Moreover, In addition, there are many indicators through which the states’ intent may be inferred. The 2015 “Comfort Women” Agreement should be regarded as a non-treaty agreement in light of the various indicators of the intent of both governments of Korea and Japan, and the relevant circumstances of the Agreement. The reason for this conclusion is not because it was concluded in oral form but because the subjects of the Agreement, governments of Korea and Japan, intended the Agreement to be a non-treaty agreement. A scholar suggested the opinion that the Agreement is a treaty. This view is correct in that a treaty may be concluded in oral form. The conclusion of this view is incorrect in that it did not consider that an oral agreement can be a treaty only when the parties to the agreement intended it to be a treaty. Since the “Comfort Women” Agreement is a non-treaty agreement, it does not create legal rights and obligations under international law between the two states. Therefore, even if the Agreement is not implemented, the issue of state responsibility does not arise. Nonetheless, in the light of the political and moral binding force of the Agreement, it is not easy for Korea and Japan not to fulfill it. As a non-treaty agreement, the “Comfort Women” Agreement seems to meet the requirements of estoppel under international law. Therefore it seems that both Korea and Japan cannot make claims inconsistent with the Agreement. Moreover, the acts contrary to the Agreement may not have any legal effects.