Abstract
Recently, civil department of Seoul District court has sentenced Japanese government has the duty of reparation to ‘Comfort women’ who suffered in the Pacific War. The decision of court seems to go against the current international practice of ‘State immunities’, rather influenced by the political conflict of Korea and Japan. This journal analyzes international trend on state immunity, both at the base of domestic practice of other states and the UN Convention on jurisdictional immunities on states and their property. Also, this article focuses on the attitude of Constitution of the Republic of Korea on immunities of states to determine whether the district court decisions have concrete legal base. Seemingly, recent decisions of the court are somehow radical, and more domestic, international practices should be accumulated to create new trend in immunities of state. Comfort women is a inhumane crime which is condemned by international society, but no legal basis has been established to punish the perpetrator ‘states’ in domestic court.
Ⅰ. Preface
‘Comfort Women’ issue between Japan and Korea has been controversial since Japanese government regards the issue as settled with Korea-Japan agreement on reparation in 1965, while Korean government considers individual rights for claim to remain. Effort to resolve the problem in diplomatic field seemed to conclude the long debate between the two parties by ‘Agreement on comfort women’ in 2015. However, as the Korean court tried to settle the dispute by judicial decisions, the discord between the two nations seems to grow, at the same time raising the issue of extent of state immunity when crimes against humanity take place.
Ⅱ. Decisions of Korean Courts concerning ‘Comfort women’ issue against Japanese government
1. First decision of Seoul Central District Court(2016gahab505092): Penalizing Japanese government for violence against peremptory norms
(1) Relevant facts regarding the judgement
Victims who were forced by Japanese imperialism to serve as ‘Comfort Women’ for Japanese troops sued against Japanese government in Korean district court, demanding compensation for their noneconomic damages. The district court did not reject the case referring to ‘Sovereign immunity’ but addressed the case, pointing out that actions against peremptory norms(jus cogens) would disqualify the state from citing the immunities. Whilst the hottest potato of the case was whether to reject the case of tort, the followings may show the essential decisions of the judgement.
(2) Essentials of the judgement
Primarily, the court reached an agreement that the action of victimizing comfort women qualified itself for sovereign acts, being eligible for sovereign immunities. The court stated the ‘comfort women’ were mobilized to serve for physical, mental stability, and efficient control of the troops, pointing out that possessing and commanding troops was considerably a sovereign act.
Recognizing the principle of sovereign immunities, the court raised the necessity of exception for the rule, saying that the act was the crime against humanity which was deliberately committed by Japanese imperialism and committed in Korean peninsula.[1]
Furthermore, the court insisted that sovereign immunities hold no permanent, everlasting value, but are changeable with the international paradigm shift which is evident with domestic law such as 『Foreign Sovereign Immunities Act』 of the U.S., 『State Immunity Act』 of the U.K., and 『United Nations Convention on Jurisdictional Immunities of states and their property』.
The court asserts the importance of the exception to the immunities of states, saying that sovereign immunities respect the individual nation’s sovereignty and the right not to be enforced by other state’s jurisdiction, but should not be utilized as a tool to avoid reparation to the individuals who were damaged by the act against peremptory norms.
2. Second decision of Seoul Central District Court(2016gahab580239): Rejection by the court, referring to Sovereign immunities
(1) Relevant facts regarding the judgement
Victimized comfort women brought a second lawsuit against Japan, asking for reparation on ‘comfort women’ issue. The 15th civil department of Seoul Central District Court rejected the lawsuit raised by 15 women forced to serve as comfort women by Japan, failing to enter procedure on the merits.
(2) Essentials of the judgement
Firstly, the court clarified that since the Korea government had not yet legislated a law concerning the criteria for civil jurisdiction over foreign states, nor had signed a treaty of mutual recognition of civil jurisdiction with the Japanese government, whether to admit sovereign immunities depended on customary international law.
Also, the court said that protection for the victims from Japanese imperialism practically necessitates the exception from state immunities, but radical approach of creating new exception should be restrained since no international practice has been confirmed. The court pointed out that administrative and legislative decision must be preceded to acknowledge exception for state immunity. Thus, according to the court, no exception created by the judicial decision is desirable.[2]
Therefore, discrepancy between customary international law and Korean domestic law does not justify the denial of state immunity by the court, not to mention the diplomatic conflict resulting from the judicial decision.
3. Third decision of Seoul Central District Court(2021kamyung391): Affirming the execution on Japanese Government’s property in territory of Korea
The 41th civil department of Seoul Central District Court sentenced it lawful to execute Japanese property in territory of Korea for reparation.
The court said that state immunities for crimes against humanity such as homicide, rape, torture may threaten common interest of international society, not to mention violating friendship between nations. Moreover, violating international peremptory norms itself is equivalent to breaking international moral boundary; enough to deprive the state of granted privilege.[3] Thus, the court sentenced execution of Japanese property lawful.
- Controversy on the decisions
The decisions of the court are controversial at the point ① whether there is a confirmed international practice to make exceptions for state immunities when tort has been committed by states, ② how effective international law(including treaties and customary law) is in Korea, ③ whilst analyzing international customary law, how other states deal with tort issue in domestic court and how International Court of Justice cover the issue of state immunity when peremptory norms are breached.
Ⅲ. Status and effect of international law in Korea
1. Constitution of the Republic of Korea
Article 6, paragraph 1, of the constitution provides that “treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea.” Therefore, the international treaty is to be respected, even if not directly stipulated in the Constitution. In the event that a law enacted prior to the Covenant’s ratification conflicts with its provisions, the Covenant has greater authority. The ‘generally recognized rules of international law’ includes customary international law, which means, in the case where international legal principles may apply as the judicial criterion, international customary law is to be considered as the utmost importance.
2. How Korean court address state immunity in the light of international customary law
Supreme court decided, in the decision 97da39216, “International law and practice permit no state falling under the control of other state’s jurisdiction, without an agreement to accept other state’s jurisdiction or renunciation of the privilege. Customary international law states that a state’s public acts are to be exempted from other state’s jurisdiction, but international practice does not apply to the extent of private acts of states.”[4] Accordingly, supreme court decisions unanimously refer to international customary law regarding the state immunity, since there is no domestic law classifying other exceptions to state immunity so far.
Hence, in case of Korea, without domestic law, current international customary law and other states’ practice are to be considered to find out whether crimes against humanity are eligible for state immunity according to the changing trend in the principle.
Ⅳ. International Practice and other States’ domestic law regarding Sovereign immunities
1. Current trend on Sovereign immunity
Generally, absolute sovereign immunity, once preserved as international norm, is fading since 19th century when government involved itself in international trade and commercial activities. Thus, restrictive sovereign immunity became an international trend, enabling each state’s jurisdiction on private acts of other states, which are usually in, commercial character. Not only Korea, but other nations such as the U.S. the U.K., Australia follow this principle by legislating domestic laws addressing the rule. However, restrictions on tort committed by states show various practices so far.
2. Foreign Sovereign Immunity Act of the U.S.
In 1976, the U.S. congress enacted the Foreign Sovereign Immunity Act (FSIA), standardizing the new ‘restrictive rules’ of immunity and assigned responsibility for determining immunity to federal courts. Since then, the FSIA became a mainstay of foreign relations legislation. However, the FSIA does not provide immunity in every case involving a foreign state, but in accordance with the ‘restrictive’ theory of foreign sovereign immunity, the FSIA limits the immunity it confers through several exceptions. The exceptions are as follows: the commercial activity exception, the non-commercial torts exception, the expropriation exception, the waiver exception, and the terrorism exception.
Amongst the listed exceptions, the non-commercial tort exception strips states of their immunity in cases where “money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment (FSIA 1605(a)(5)).”[5] The federal court decision and general practice in the U.S. specifies that unlike commercial exception, tort exception limits “the United States” to geographic territories and waters of the U.S. Also, torts are to take place in the United States when plotted, committed, and at the point of injury.
Overall, the U.S. legislative practice shows that the tort exception exists to deal with perfectly domestic injury exercised by foreign authoritative, not in the cases of international conflicts.
3. State Immunity Act of the U.K.
State Immunity Act of the U.K.(SIA) too, follows ‘restrictive state immunity’, generally protecting foreign states from jurisdiction, but stripping them off immunity in certain exceptions: commercial transactions and contracts to be performed in U.K., contracts of employment, personal injuries and damage to property caused by an act or omission in the U.K., ownership, possession and use of property, patents and trade-marks etc, ships used for commercial purposes, value added taxes and customs duties etc.
Basically, a state is not immune as respects proceedings in respect of (a) death or personal injury, or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom. As the U.S. FSIA, the U.K. SIA also shows the practice of restrictive immunity with the standard similar with that of the U.S. The act should be performed in the territory of the U.K. and entire procedure should arise in the U.K.
4. United Nations Convention on Jurisdictional Immunities of States and their property (2004)
The Convention, still ineffective, receives little interest from the international society; yet it still guides the way international community should head to. The Convention’s value is to be cherished as a sole international document established for international application, but not to be put into practical use.
Article 12 of the United Nations Convention on Jurisdictional Immunities of States and their property(the Convention) states “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” The convention does not ask for the entire procedure of injury to occur in the territory. This seemingly lenient standard too, must satisfy that “the author of the act or omission was present in that territory at the time of the act or omission.” The convention differs from the practice of the U.S. and the U.K., in that not entire process should take place at the very state, and personal presence is called for.
5. Cases on sovereign immunities: Are there jurisdictional practices putting restrictions on State immunities?
(1) How State immunities relates to breach on peremptory norms (jus cogens)
1) Domestic court decisions admitting sovereign immunities
Korean domestic courts still advocate ‘restricted state immunity’ in general, and no court had the opportunity to deliberate over relationship between state immunity and peremptory norms.
2) Domestic court decisions denying sovereign immunities when peremptory norms are violated
In Ferrini case (Italy v. Germany), court or cassation (Italian Supreme court) sentenced that no state immunity is to be applied to international crimes, permitting Italian court exercise its jurisdiction to German government. Accordingly, lower court announced Germany of reparation duty. The same happened in Greek court against Germany as defendant. [6]The conflict between Italy and Germany brought them to ICJ, which admitted state immunity to Germany. Still, Italian Constitutional court stated the crimes of the Nazis are subject to jurisdiction of Italian domestic court in 2014, maintaining its firm stance.
The domestic court decisions stand for the changing trend in international society, from horizontal era in which no state may enforce the other into abiding by the peremptory norms, to hierarchical era in which mutual judicial enforcement is allowed in case of disobedience of jus cogens.
3) Attitude of the International Court of Justice (ICJ)
However, ICJ states that hierarchical era is yet to come in the case in which Germany and Italy conflicted over whether breach in jus cogens may strip the state off the privilege of state immunity.
The case(Germany v. Italy, 2012 ICJ Reports 99) says:
The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another state. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful. […] For the same reason, recognizing the immunity of a foreign State in accordance with customary international law does not amount to recognizing as lawful a situation created by the breach or a jus cogens rule, or rendering aid and assistance in maintaining that situation, […]. The duty to make reparation is a rule which exists independently of those rules which concern the means by which it is to be effected. […] Accordingly, the Court concludes that even on the assumption that the proceedings in the Italian courts involved violations of jus cogens rules, the applicability of the customary international law on State immunity was not affected.[7]
ICJ announced that state immunity is procedural rule, independent of the character of the violated rule. Thus, whether the defendant had breached the jus cogens does not affect the state immunity according to the international practice. Still, individual opinions of judges advocate changing trend, saying that victims abandoned in the inflicting states should be able to seek jurisdictional protection from their own court or the third party’s court.
(2) Have restrictive practices on sovereign immunities been confirmed?
Customary international law does not see revolutionary practice in state immunity. Considering that customary law is evidenced by consistent, coherent and continuous practice by the member nations of international community, discrepancy between few states’ domestic acts and practices provide no concrete backups for new customary law. Few trials in domestic courts have denied state immunity when jus cogens were violated, but no consistent practices have been accumulated. In conclusion, states which committed torts still enjoy privileges according to the international law in the current times.
Ⅴ. Commentary on Korea Courts’ decisions
1. A new jurisdictional trend created by domestic court?
Conflicting decisions by Seoul Central District Court reflect contemporary trend of state immunity. However, customary international law denying state immunity for states committing crimes against humanity has not been established. Though gathering comfort women for the Japanese troops is clearly a brutal, inhumane, and immoral act, domestic court is not eligible to go against the international consent of state immunity. Customary law may change by contemporary trend and international agreement, while the domestic court should be the follower of the changing trend, not the pioneer. The courts’ conservative decision may leave victims’ right unprotected, accelerating international society and domestic legislative bodies to preserve peremptory norms. As the second decision from the district court in June states, the administrative and legislative entities should be the ones to take lead in new trends, not the court.
2. Is there a legal basis for denying the state immunities?
As mentioned above, Constitution of the Republic of Korea takes generally recognized international law as equally effective domestic law. Thus, with no rules regarding state immunity in Korea, international customary law takes the position of domestic rule for courts to apply. As the second decision of the district court stated, Korean domestic court should take the stance of already confirmed international law and apply state immunity to Japan, despite the breach on peremptory norms. Even if progressive approach on state immunity is implemented in the case, following the trend of the U.S. or the U.K., comfort women case does not fall into the applicable criteria since the tort was plotted in Japan, while the damage happened in the site of the Pacific War, unable to fulfill the condition mentioned in SIA or FSIA. Also, even with the UN Convention on state immunity, the author of the tort was far from Korean territory when the crime took place, rendering even the progressive practice inapplicable.
Hence, no legal basis has been established, either in international base, or domestic base, or at the very least, at the level of other states’ practice. Korean court decision is future-oriented, but still goes against international customary law and common agreement of states.
3. Is there a concrete legal basis for execution on Japanese property?
Though the Seoul Central District court sentenced that the list of Japanese property in Korea to be submitted for further execution, international community has the consensus of protecting the property of a state from execution. As the UN Convention mentions, to the extent of the consent of the concerned state, or international agreement, or written contract, or in case of allocating the property for reparation, or in case of special property used by states for commercial purpose, execution to the foreign state’s property is allowed. Taking the contents of the convention as the international practice, Korean court commanding Japanese government to list up their property in our territory conflicts with the international practice and further, international customary law. There is no legal basis for execution on Japanese property, which means the court decision may give rise to diplomatic collision or provoke international condemnation.
Ⅵ. Conclusion
Politics may advocate the procedure of conflict resolution, while the law may advocate the end of conflict resolution. Vague legal basis without common agreement and nominal practice may give rise to a new conflict, which is the reason why judiciary organism tend to take the most conservative stance. Crimes against humanity including the ‘comfort women’ issue, should be addressed and international community should not repeat such horrors of war. Yet, domestic court should refrain from taking mere recognition and necessity as the basis for legal decision, which would even put Korea’s diplomacy into a deadlock.
References
Casenote, 2021, https://casenote.kr/서울중앙지방법원/2016가합505092, Accessed 25 July. 2021.
Casenote, 2021, https://casenote.kr/서울중앙지방법원/2016가합580239, Accessed 25 July. 2021.
Casenote, 2021, https://casenote.kr/서울중앙지방법원/2021카명391, Accessed 25 July. 2021.
Chung, Inseop. Lecture on new international law (trans. By writer). Seoul, Parkyoungsa, 2020
Joe youngsun, “Comfort women decision and state immunity”, https://www.lawtimes.co.kr
John B. Bellinger et al, “Can you be sued under the Foreign Sovereign Immunities Act?: A Primer for Foreign Governments and their agencies”, https://www.arnoldporter.com
Lee Yongkyung, “It is lawful to execute Japan who lost a ‘comfort women’ suit to seek for reparation”, https://www.lawtimes.co.kr
Lee Yongkyung, “Victims of comfort women crimes lose a second suit against Japan”:, https://www.lawtimes.co.kr
Legislation of the U.K. government, State Immunity Act 1978, 1978, www.legislation.gov.uk/ukpga/1978/33
The U.S. congress, Chapter 97-Jurisdictional Immunities of Foreign States, 1976, http://uscode.house.gov
[1] Casenote, 2021, https://casenote.kr/서울중앙지방법원/2016가합505092, Accessed 25 July. 2021.
[2] Casenote, 2021, https://casenote.kr/서울중앙지방법원/2016가합580239, Accessed 25 July. 2021.
[3] Casenote, 2021, https://casenote.kr/서울중앙지방법원/2021카명391, Accessed 25 July. 2021.
[4] Chung, Inseop. Lecture on new international law(trans. By writer). Seoul, Parkyoungsa, 2020
[5] John B. Bellinger et al, “Can you be sued under the Foreign Sovereign Immunities Act?: A Primer for Foreign Governments and their agencies”, https://www.arnoldporter.com
[6] Chung, Inseop. Lecture on new international law (trans. by writer). Seoul, Parkyoungsa, 262, 2020
[7] Chung, Inseop. Lecture on new international law (trans. by writer). Seoul, Parkyoungsa, 265-266, 2020