Relationship between International & Domestic Law
Treatment of International Law by Domestic Courts – Treaties
Decision of Seoul District Court Decision on Damage Claims (Seoul District Court Decision, 2019Ga-Dan5063405, Decided on 17 June 2020)
The plaintiff signed a global air transport contract with the Defendant that provides a flight departing from the Philippines Clark International Airport and arriving at Incheon Airport on the same day. However, the aircraft had technical problems while preparing for its departure. The Defendant immediately underwent maintenance as the aircraft was not adequately fueled. The original flight was cancelled. As a result, the Plaintiff was only able to deliver the package approximately 19 hours after the expected time using an alternative flight provided by Defendant. Following the incident, the Defendant replaced the fuel moderator and the fuel pump of the original aircraft. South Korea is a state party of the Convention for the Unification of Certain Rules for International Carriage by Air, also known as the Montreal Convention. The Convention stipulates that it “applies to all international carriage of persons, baggage or cargo performed by aircraft for reward (Article 1 paragraph 1).” International carriage refers to “any carriage in which the place of departure and the place of destination, whether or not there be a break in the carriage or transshipment, are situated either within the territories of two States parties, or within the territory of a single State party if there is an agreed stopping place within the territory of another State, even if that State is not a State party” (Article 1 paragraph 2).
The court found that it is well-grounded to believe that the Plaintiff suffered from distress due to the shipment delay, which arrived 19 hours after the expected time. Since the Defendant has adopted follow-up measures only after the accident, the court found it difficult to uphold that the accident was unavoidable even if the Defendant had entirely performed its maintenance obligations. Also, there was no evidence to authenticate the Defendant’s arguments that it is exempted from liability. Therefore, the court decided that the Defendant is liable to pay compensation for the psychological and material damage caused by the delay under Article 19 of the Montreal Convention, absence of circumstances justifying the exemption. In this case, the court confirmed that the Convention prevails over civil law and commercial law when one State party transports international carriages to another State party. This principle is applicable as both the Republic of Korea and the Philippines are State parties to the Montreal Convention.
* Article 19 of the Montreal Convention stipulates that “the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage, or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for them to take such measures.”
Treatment of International Law by Domestic Courts – Treaties
Decision of the Constitutional Court on Former Customary Law Constitutional Complaint (Constitutional Court Decision en banc, 2017Hun-Ba208, Decided Constitutional on 29 October 2020)
Though not being the mainstream issue, the court confirmed in this case that legal instruments such as treaties having force equivalent to an Act could also be referred for constitutional review, which is a meaningful contribution to the discourse on the domestic status of international law in Korea. The court held that Article 111 of the Constitution of the Republic of Korea and Article 41 of the Constitutional Court Act stipulate ‘law(statute)’ is subject to constitutional complaint. Law in this context does not only mean legislation enacted by the National Assembly but also mean legal instruments like international treaties having the same effect as Acts. Therefore, customary law is also subject to the constitutional complaint as the meaning of law does not limit itself only to the formal sense of an Act.
* Article 111 of the Korean Constitution stipulates that “Constitutional Court shall have jurisdiction over the constitutionality of a law upon the request of the courts and Constitutional complaint as prescribed by Act.” (emphasis added)
Diplomatic & Consular Relations
Consular Assistance to Protect Overseas Nationals
Act On Consular Assistance of Protecting Overseas Korean Nationals (Act No. 16221)
The Act on Consular Assistance for the Protection of Overseas Korean Nationals was proclaimed on 16 January 2019 and entered into force on 16 January 2021. The Act stipulates the full range of matters pertaining to consular assistance offered by the state to overseas Korean nationals to protect their lives, bodies, and properties and to promote their safe residency, stays and visits abroad. With the Act providing the details regarding the Constitution-stipulated duty to protect overseas Korean nationals, the Korean nationals involved in incidents or accidents abroad are expected to be provided with a legally-based and a more systematic and better consular assistance.
Individuals & Non-State Actors
Nationality and Birth Registration
Decision of the Supreme Court on the Confirmation of Birth Registration of the Biological Child, (Supreme Court Decision, 2020Seu575, Decided on 8 June 2020)
The Applicant is a national of the Republic of Korea (acquired Korean nationality by obtaining naturalization permission on 5 June 2013). He entered a common-law marriage with the non-applicant, a national of the People’s Republic of China (hereafter, “China”), around August 2013. The couple gave birth to a female child. The Applicant immediately registered the birth of his daughter at the local community service center by submitting her birth certificate with the registration document. However, the center returned the application on the following grounds: the mother had to register the baby’s birth as she was born out of wedlock; where the mother is a foreigner, the mother needed to file the birth report to the embassy of her land of citizenship; or if the father were to register the child’s birth, additional documents like marriage certificates were required. But in this case, he did not submit such records. According to the local community service center, the Japanese authorities recognized the refugee status of the non-applicant after the Chinese authorities denied the renewal of her passport in 2009. She entered Korea with the travel certificate issued by the Japanese government, not with her Chinese Passport and thus could not submit the necessary documents needed for her marriage registration. However, the center contended that the non-applicant did not have to submit documents proving her refugee status instead of a marriage certificate when registering the baby’s birth. So, he filed a suit for confirmation in the first instance court (Cheongju District Court) since the Applicant sought to register his biological child’s birth under Article 57 paragraph 2 of the Act on Registration of Family Relations (hereafter, “Family Relation Registration Act”). The Applicant appealed after the court dismissed his claims.
The Supreme Court confirmed that “a baby whose father or mother is a national of the Republic of Korea at birth shall be a national of the Republic of Korea” (Article 2 paragraph 1 of the Nationality Act). Accordingly, the court decided that it is an infringement of human dignity, the right to the pursuit of happiness, and personal rights by depriving the child of an opportunity to acquire social status if either the State does not accept the birth registration of a child born with Korean nationality or the procedure is prolonged or complicated that it can be considered equivalent to disapproving the birth registration. The court maintained that Korean nationals enjoy “the right to birth registration immediately after birth,” which is a right to be recognized as a human before the law and is a fundamental right that guarantees all other fundamental rights. In other words, it cannot be restricted or violated even by the Act (Article 37, paragraph 2 of the Constitution of the Republic of Korea). Furthermore, the court emphasized the rights prescribed in Article 7, paragraph 1 of the Convention on the Rights of the Child, ratified by the Korean government. It then held that empowerment of the rights of individuals, family, and children need to be respected even when interpreting and applying the civil law and Family Relations Registration Act, which regulate registration concerning the legal relationship of family life and its establishment and changes.
Overall, the court held that the Applicant should be allowed to register the baby’s birth by obtaining simple confirmation from the Family Court. The baby would be considered a biological daughter based on the DNA results, even if the mother failed to prepare the necessary documents as the Chinese authorities suspended the effect of her passport. Therefore, the Supreme Court reversed and remanded the judgment of the lower court for review.
* Article 57(2) of the Act on Registration of Family Relations (Recognition of Report of Birth) stipulates that “Where a place of registration and resident registration number are unverifiable, a report specified in paragraph (1) may be filed by obtaining confirmation from the Family Court having jurisdiction over the father’s place of registration or address.”
Dual-Nationality and Nationality Act
Decision of the Constitutional Court on Constitutionality of Article 12 Paragraph 2 of the National Act. (Constitutional Court Decision, 2016Hun-Ma889, Decided on 24 September 2020)
The Complainant holds dual nationality (the U.S. and the Republic of Korea) as he was born to an American father and a Korean mother in 1999. Under Article 12, paragraph 2 and Article 14, paragraph 1 of the Nationality Act, the Complainant had to choose one nationality in the year that he turned 18 within three months, which was 31 March 2017 in his case, as prescribed in the Military Service Act. When the designated period elapses, one cannot declare the renunciation of his Korean nationality unless and until he was relieved of his military service obligation. Under Article 12 (1)(1) of the Enforcement Rule of the Nationality Act and considering state practice, if one wishes to declare the renunciation of his Korean nationality, he needs to provide his identification certificate, family relation certificate, and parents’ identification certificates. However, only a member under the family relations register can issue these documents. Although the Complainant had acquired Korean nationality by birth, he did not have his birth registered in Korea. Therefore, he was unable to submit additional documents needed to renounce his Korean nationality. Accordingly, the Complainant filed a constitutional complaint on 13 October 2016, arguing that the very clause infringed his fundamental rights, prohibiting him from renouncing his Korean nationality within three months from the date of enlistment.
The court clarified that the legislative purpose of the provision of the Nationality Act at dispute is to acquire fairness of implementing military service duty by limiting the renunciation of Korean nationality to evade his obligations. Therefore, under prevailing social norms, the court pointed out that there can be circumstances legitimately justifying the failure of a person with multiple nationalities to declare renunciation of Korean nationality within the prescribed period, such as one’s country of residence or experience of staying or sojourning in Korea. The majority opinion was that rather than limiting the renunciation of Korean nationality outright, there should be measures to exceptionally permit the person to renounce his Korean nationality in the abovementioned circumstances. Specifically, such exceptions can be acceptable only when it is difficult to hold the person accountable for failing to declare the renunciation and objectively does not go against the spirit of the legislation of securing fairness in implementing military duties.
Overall, the court decided on 24 September 2020 by 7 to 2 a constitutional nonconformity decision. In other words, the court held that the text of Article 12, paragraph 2 of the Nationality Act is unconstitutional, and the legislature needs to make amendments to remove the unconstitutional elements by 30 September 2022 at the latest. Such may include a clause adding requirements and procedure for those who have justifiable grounds for failure to renounce their Korean nationality within the designated period. If no amendment is made by designated period, the provision will be null and void as of 1 October 2022. Two Justices have dissented and criticized the majority opinion. They contended that the disputed provision seeks to achieve the equal military service burden enshrined in the Constitution. Also, the provision does not deprive persons with multiple nationalities of their right to renounce nationality but restricts it partly. The provision of the Act at issue is the result of the legislature’s coordinating and balancing the interests of the constitutional values of national defense and equal burden-sharing of military duty on one side, and the individual fundamental value of renunciation of nationality on the other side, avoiding unilateral discrimination on both sides. The Justices argued that without establishing a well-defined standard based on social consensus, an exception to such application must not be rashly permitted just because individuals may have inevitable circumstances for having failed to declare such renunciation within the prescribed period.
* Article 12(2) of the Nationality Act stipulates that “[…] a person assigned to the preliminary military service under Article 8 of the Military Service Act shall choose one nationality either within three months from the date of enlistment, or within two years from the date he or she falls under any subparagraph of paragraph (3): Provided, That if a person intends to choose the nationality of the Republic of Korea under Article 13, he or she may do so even before he or she falls under any subparagraph of paragraph (3).” Article 14(1) of the Nationality Act stipulates that “Provided, that anyone prescribed in the main sentence of Article 12(2) or paragraph (3) of the same Article may make such declaration within the relevant period or only after the relevant grounds arise.” (emphasis added).
International Environmental Law
State Responsibility for Environmental Pollution and Damage
Decision of the Seoul District Court on Damage Claims (Seoul District Court Decision, 2017GaHap23139, Decided on 11 December 2020)
The Plaintiffs claimed that even though the Chinese air pollution is severe and the pollutants from China affect more than 32% of the air contamination in Korea, the People’s Republic of China, the Defendant of this case, is buck-passing and reluctant to disclose or share information regarding the air pollution. The plaintiffs also alleged that the Defendant violated the ‘No Harm Rule,’ a generally recognized rule of international law confirmed by the 2001 UN International Law Commission (ILC) Draft Articles on Prevention of Transboundary Harm from Hazardous Activities. Therefore, the Plaintiffs claimed that the Defendant and the Republic of Korea, a co-defendant of the case, are also jointly liable to pay consolation money for non-economic damages to Plaintiffs and the appointed parties.
The Court found that China enjoys jurisdictional immunity even considering the evasion of responsibility by China over fine dust, non-disclosure, and refusal to share information, as it is closer to acta jure imperii than an acta jure gestionis in nature. Therefore, the Court ruled that it cannot exercise jurisdiction over the case. In addition, the Court did not uphold the claim that the No Harm Rule is a “generally recognized rule of international law” under Article 6 (1) of the Constitution of the Republic of Korea due to insufficient evidence. Yet, it is interesting to note that the Court considered whether the rule falls under ‘the generally recognized rule of international law,’ though it is a matter to be reviewed in the merits stage.
International Humanitarian Law
Decision of Seoul District Court on Damage Claims (Seoul District Court Decision, 2016GaDan5235506, Decided on 7 July 2020)
The Plaintiffs are Prisoners of Wars (hereafter, “POWs”) who escaped from the Democratic People’s Republic of Korea (hereafter, “North Korea”). They claimed that non-repatriation of POWs following the repatriation procedures of POWs violates Article 51 of the 1953 Korean War Armistice Agreement and various provisions under the 3rd Geneva Convention of 1949 that prohibits inhuman treatments of all kinds against POWs. The Court affirmed that the Convention has the effect of domestic law under Article 6(1) of the Constitution of the Republic of Korea. Moreover, both the Republic of Korea and North Korea acceded to the Convention in 1966 and 1957, respectively. Accordingly, the Court ruled that the Defendant is liable for the damages caused by the acts of refusing to repatriate the POWs, forced labor, and around 50 years of detention, constituting illegal acts under the Convention. The Court also ruled that the act of imposing forced labor by the Defendant to the Plaintiff violates customary international law and the Forced Labour Convention of the International Labour Organization (ILO), also having the same effect as the domestic laws under Article 6(1) of the Constitution of the Republic of Korea. Also, the act constitutes a tort under Article 750 of the Civil Act, violating numerous domestic provisions, namely the personal liberty clause in the Constitution of the Republic Korea and Article 7 of the Labor Standards Act. Overall, the Court ruled that North Korea was liable to pay the plaintiffs, two former South Korean POWs (an 85-year-old man surnamed Han and a 91-year-old man surnamed Noh) twenty-one million won each in damages for non-repatriation.
* The full name of the 1953 Korean War Armistice Agreement is “Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s volunteers, on the other hand, concerning a military armistice in Korea.” The Agreement was signed on 27 July 1953. Article 51 of the Agreement reads as follows: 51. The release and repatriation of all prisoners of war held in the custody of each side at the time this armistice agreement becomes effective shall be effected in conformity with the following provisions agreed upon by both sides prior to the signing of this armistice agreement.