Recent Practice and Prospect of Sovereign Immunity in Republic of Korea ‒ On the Comfort Women Lawsuits of 2021 ‒

Abstract

Since the beginning of 2021, the rulings on the issue of sovereign immunity by the district courts have been at the heart of transitional controversy in Korea. The rulings of January and April respectively adopted an entirely opposite stand on the exception of sovereign immunity especially for the ‘comfort women’ lawsuits within Korea. It is estimated that such a judicial deadlock and mutual contradiction will continue until a potential analysis by the Supreme Court of Korea. However, the victims of Comfort Women have been in pursuit of lawsuits for the meaningful compensation, which could be evaluated as ‘Access to Justice’ as last resort. This implies that the human rights discourse for the victims for war crime can not be restrict within the state-to-state approach of compensation. Rather, the postwar fundamental right in pursuit of the recovery human dignity should not be overlooked between the state borderline. Therefore, the bilateral dialogue for additional legal solution for the relevant victims across the Korean Strait needs to be reserved as a future possibility. In addition, it needs to be recalled that the issue of immunity from enforcement after the denial of sovereign immunity in the merits has been so far almost unprecedented in the Korean legal circle. The legal protection in the name of immunity from enforcement for the sake of foreign assets has been difficult to refute. Materially, the immunity from enforcement has been established by the Vienna Convention on Diplomatic Relations and also codified in the United Nations Convention on Jurisdictional Immunities of States and Their Property. In face of the legal situation, the issues of enforcement will require further deliberation of legal reasoning to refute the relevant immunity. In the face of the current sovereign immunity issues, the potential decisions by courts of Korea will be able to play a role as an international legal trailblazer.