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Published online by Cambridge University Press: 07 May 2025
Why did ROK President Lee, Myung-Bak, changing his position on the issue of “comfort women”, forcefully demand for the first time in December 2011 in Kyoto that Japan's Prime Minister Noda Yoshihiko act to settle this issue? The reason is that the ROK government was compelled to do so by the August 30, 2011 decision of the Korean Constitutional Court. As of January 2013, however, there has been no tangible Japanese action on the issues. This article considers possible ways to resolve the issues that continue to poison relations between two neighbors with extensive economic, financial and cultural bonds.
1 2006Hun-Ma788. http://www.ccourt.go.kr/home/view2/xml_content_view02.jsp?seq=24034&cname=판 례 집&eventNo=2006헌
2 “Constitutional Court Decision (Summary)” provided by Mr. Choi, Bong-Tae. The author wishes to express sincere gratitude to Mr. Choi, one of the leading lawyers who represented the “comfort women” victims before the KCC.
The following “Constitutional Court Decision (Summary)” was provided by Mr. Choi, Bong-Tae, to whom the author wishes to express sincere gratitude. He is one of the leading lawyers who represented the “comfort women” victims before the KCC.
Summary of the Decision:
The Constitutional Court, on August 30, 2011, by 6 (majority) to 3 (dissenting), held that the omission by the respondent is unconstitutional. The omission refers to the non-exercise of effort toward the dispute settlement procedure under Article 3 of the Agreement on the Settlement of Problems Concerning Property and Claims and the Economic Cooperation between the Republic of Korea and Japan (hereinafter referred to as the “Agreement”) with the purpose of settling the dispute on whether the claimants’ right of claims, as Japanese Military Sexual Slaves, against Japan has terminated under Article 2 Paragraph 1 of the Agreement.
Article 10, Article 2 Paragraph 2 and the Preamble of the Constitution of the Republic of Korea and Article 3 of the Agreement should be taken into account in order to determine whether this omission infringes on the Constitution. On the basis of these provisions, the possibility of serious infringement on the basic rights guaranteed by the Constitution, such as property rights and fundamental rights to human dignity and worth (“Constitutional rights”), and the urgency and possibility of relief should be reviewed.
Considering the above, the obligation of the respondent to resort to the dispute settlement procedure under Article 3 above is not only an ‘obligation to act’ that is derived from the Constitution, but also an obligation which is specifically stipulated by Statute and Order. The non-exercise of such obligation does not fall under the discretion of the respondent, nor has the respondent implemented the obligation faithfully. This omission by the respondent, therefore, violates the Constitution and infringes on the Constitutional rights of the claimants.
A separate opinion was also set forth stating that the Government also has the responsibility to completely compensate the claimants. This compensation, according to the separate opinion, should cover the damage caused by the fact that right of claims for damage against Japan cannot be made by the claimants due to the Agreement.
The dissenting opinion states that this constitutional complaint should be rejected. It argues that specific obligation to resort to the dispute settlement procedure under Article 3 of the Agreement does not arise out of the provisions of Article 10, Article 2 Paragraph 2 and the Preamble of the Constitution and Article 3 of the Agreement.
3 http://www2.ohchr.org/english/bodies/cescr/cescrwg49.htmVisited on June 25, 2012.
The ICESCR posed this question: “7. Please provide information on remedial and educational steps taken to address the lasting effects of the exploitation of women as ‘comfort women’ on the enjoyment of economic, social and cultural rights by victims, in particular the measures taken to satisfy the moral and material interests of the victims.”
4 http://www.mofa.go.jp/mofaj/gaiko/kiyaku/pdfs/40_1b_6.pdf Visited on June 25, 2012.
5 ①戸塚悦朗「 パンドラの箱を開けよう〜希望 に満ちた未来をひらくために〜」朝日関西スク エア127号、2010年9月。②戸塚悦朗「「パンド ラの箱」をあけよう 菅政権は国連勧告を尊重 して未来を拓くことができる」季刊『中帰連』 ４ ８ 号 （ 「 これからの 戦後責任問題 」 特 集、2010年11月）、30-37頁.
6 戸塚悦朗「元日本軍「慰安婦」被害者申立にか かる事件に関し大韓民国憲法裁判所へ提出され た意見書:いわゆる「条約の抗弁」について」龍 谷法学第42巻第1号（2009年６月）、193-222頁.
http://repo.lib.ryukoku.ac.jp/jspui/handle/10519/768 Visited on June 25, 2012.
7 The author submitted a written statement to the UN Commission on Human Rights on this matter. UN Doc. E/CN.4/1994/NGO/19 of 4 February 1994. See attached material.
8 The Japanese Higher Court admitted that there were violations of obligations for punishment under the Forced Labour Convention and the International Convention for the Suppression of the White Slave Traffic. Judgment of Tokyo Higher Court of November 30, 2000 on the Son Shindo Case （東京高裁平成11年（ネ）第5333号. The Higher Court rejected the victim's claim on the ground of statute of limitations. The Supreme Court, on March 28, 2003, endorsed the Higher Court's judgment by rejecting the victim's appeal, but mentioned nothing about the above-mentioned legal interpretation of international law.
9 This is notably so in case of gross violations of international human rights law and international humanitarian law. See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which was adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005.
10 Six survivors including Ms. Kang Dok-Kyon accompanied by five representatives of the Korean council for the women drafted for military sexual slavery by Japan including its then Secretary General, Ms. Lee Mi-Gyon (currently a Member of the Korean National Assembly) and its then legal advisor, Mr. Park Woon-Sun (currently Mayor of Seoul) visited the Tokyo Public Prosecutor's Office to demand official investigation and punishment of the crimes against humanity under international law. They were not received by any prosecutor. Six Japanese lawyers including the author, 5 interpreters and 9 caretakers witnessed these events.
11 The author found and obtained the earliest district court and appeal court judgments of the Japanese criminal court against ten private entrepreneurs, who deceived and trafficked in Japanese women in Nagasaki to a Japanese Navy “comfort station” in China. The panel of three judges ruled that the defendants deceived and trafficked in 15 Japanese women in Nagasaki to a Japanese Naval “comfort station” in Shanghai, China and that they were guilty of committing crimes defined by Art. 226 (1) and (2) of the Penal Code. The judges sentenced them to penal servitude for periods up to three years and six months. The Supreme Court later endorsed the judgments of the district court and the appeal court. Lower court judgments, however, were not found. See: Etsuro Totsuka, “Could Systematic Sexual Violence against Women during War Time Have Been Prevented?–Lessons from the Japanese Case of “Comfort Women,” In: Ustinia Dolgopol and Judith Gardam, eds., The Challenge of Conflict, Koninklike Brill BV (2006).
12 (General Principle) 2. Every State has a duty to make reparation in case of a breach of the obligation under international law to respect and to ensure respect for human rights and fundamental freedoms. The obligation to ensure respect for human rights includes the duty to prevent violations, the duty to investigate violations, the duty to take appropriate action against the violators, and the duty to afford remedies to victims. States shall ensure that no person who may be responsible for gross violations of human rights shall have immunity from liability for their actions.
13 See: The 2005 Principles and Guidelines, in particular I.(4), IV.(6), & IX.(15). http://www2.ohchr.org/english/law/remedy.htm
14 Art. 22(2). The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. UN Treaty Series, 1964, page 108. http://treaties.un.org/doc/publication/UNTS/Vol ume%20500/v500.pdf
15 Art. 1. Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol. UN Treaty Series, 1964, page 242. URL: Same as above.
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