Sovereign/State Immunity
Immunity of States from Jurisdiction
Decision of Seoul High Court on the Rights of the Comfort Women Victims to Compensation and Exceptions to State Immunity (2021Na2017165, Decided on 23 November 2023)
This case follows an appeals case of the Seoul District Court Decision 2016Ga-Hap580239, where the plaintiffs, consisting of comfort women victims and the bereaved families, brought claims against Japan for compensation to the Court. Whereas the lower court dismissed the case upholding the State immunity of Japan, the Seoul High Court found that it could review the merits of the case. The Court determined that the plaintiffs were entitled to compensation for the damages suffered as the Japanese Empire drafted them as comfort women.
Absent an international convention to which the Republic of Korea is a state party or where there is a legislation concerning the limits of the exercise of civil jurisdiction of a court against a foreign state, the rule to be applied in this case on State immunity is based on the custom that is established based on general practice of states accepted as law. Given that the acts in question were committed against Korean nationals and part of the said acts had taken place within the Korean peninsula, which the defendant had been illegally occupying at that time, the Court determined whether there was an established custom disallowing it to exercise jurisdiction against the defendant. Since that customary international law is neither static nor permanent, and the dynamic nature of the norm should be considered. However, it is difficult to pinpoint a specific period when such a change occurs, as was the shift from absolute immunity to restrictive immunity, and state practice that seemingly diverts from the general understanding inevitably co-exists during a transition. In this regard, the Court took note of various state practices denying the enjoyment of immunity of the perpetrating State for “tortious acts committed within the territory of the forum State against individuals causing death or injury.” Specifically, it referred to the United Nations Convention on Jurisdictional Immunities of States and Their Property (not yet entered into force, “UN Convention on State Immunity”) or the European Convention on State Immunity providing such an exception and the legislation of various states, all of which provide such an exception. Respective provisions do not manifestly prescribe any distinction between a sovereign act and a non-sovereign act, and it is difficult to find judicial practice where a court referred to such a distinction when determining the applicability of such provisions regarding tortious acts. The International Law Commission also has acknowledged in its commentary of the UN Convention on State Immunity that the scope of Article 12 is broad enough to be applied “to provide relief or possibility of recourse to justice for individuals who suffer personal injury, death or physical damage to or loss of property caused by an act or omission which might be intentional, accidental or caused by negligence attributable to a foreign State.”
Moreover, the recent judgment on the Changri-la case of the Brazilian Supreme Court (Extraordinary Appeal with Interlocutory Appeal 954.858 RIO) and the decision of the Supreme Court of Ukraine on 14 April 2022 (Case No. 308/9708/19: Civil Cases from 1 January 2019) also suggest a shift in the existing custom that State immunity may be denied on such grounds even though the tortious acts committed by the foreign military in the territory of the forum State may be assessed as sovereign to a certain extent. Therefore, the Court determined that State immunity is exempted at least regarding tortious acts committed against the nationals within the territory of the forum State, notwithstanding whether the act in question is sovereign or not, and it can be assessed that State immunity has already developed to protect the rights of individuals to trial. Concerning the question of whether State immunity can be denied even when “a part of” such acts have been committed within the territory of the forum State, the Court expounded that there are no reasonable grounds to require the acts in question to be committed within the territory in full for the Court to exercise its jurisdiction.
As to whether a Korean court can exercise international jurisdiction over an external case under private international law, the Court found that the Republic of Korea has substantial relevance over the disputed acts and the parties to the case. The tortious acts concerning the drafting of comfort women by the defendant had been committed in part within Korea, which was then illegally occupied by the defendant. It constitutes special jurisdiction under Article 18(1) of the Civil Procedure Act of Korea, which provides that when a tort claim is made against a court, the forum State can also exercise jurisdiction over the case. Also, most of the plaintiffs are Korean nationals living in Korea and brought claims against the defendant under the Civil Act of Korea to the court. Considering that the plaintiffs and the comfort women victims have already appealed against the courts of the defendant and the US courts on similar grounds, the Court determined there is no reason to believe that the defendant could not reasonably predict that the plaintiffs would make claims against the Korean courts. Lastly, it assessed that there is no reason to determine that evidence must be examined elsewhere since most material evidence has been lost, and the personal evidence is limited.
Having established the jurisdiction over the case, the Court determined whether the defendant was liable for the tortious acts. Under Article 98(2) of the defendant’s Constitution, the defendant is obliged to conform to the treaties ratified by the defendant and established international custom. Even if the said acts occurred well before the enactment of the Constitution, it cannot be said that the Constitution creates a new obligation but merely declares the primary obligation of a state. Notwithstanding the various obligations under international conventions such as Article 3 of the 1907 Hague Convention with Respect to the Laws and Customs of War on Land and Article 46 of the Annexed Regulations, Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, International Convention for the Suppression of the Traffic in Women and Children, the Slavery Convention, and the Force Labour Convention, the Court found that the civil servants had committed crimes under Article 226 of the 1907 Penal Code of Japan and the government of Japan had positively engaged in, fostered, or facilitated the violating of the said obligations stated therein. For this reason, the Court found that the acts in question constitute tortious acts under the Korean Civil Act and ruled that the defendant is liable for the damages against the plaintiffs.
After the first landmark decision in January 2021, the Korean court, once again, denied State immunity concerning tortious acts committed against its nationals and found that Japan is liable to pay compensation for damage caused to the plaintiffs who were victimized by the Japanese Empire by being drafted as comfort women. These practices may seem like outliers, and the states may even be accused of violating international law. However, it is worth noting that customary international law is neither permanent nor static, and states are at the center of law-making. Given that various states have rendered decisions denying State immunity when they are perpetrators against individuals, such practices should not be simply dismissed, especially when the individuals are essentially barred from receiving adequate remedy, and appealing to their court of nationality is one of the few options remaining to them.
* Article 18(Special Forum for Locus Delicti) (1) of the Civil Procedure Act of Korea provides as follows: A lawsuit concerning a tort may be brought to the court in the place of an act.
* Article 98(2) of the Constitution of Japan provides as follows: The treaties concluded by Japan and established laws of nations shall be faithfully observed.
* Article 226 (Kidnapping for Transportation out of a Country) of the Penal Code of Japan provides as follows: A person who kidnaps another by force or enticement for the purpose of transporting another from one country to another country shall be punished by imprisonment with work for a definite term of not less than 2 years. The Court referred to this provision because when the acts were committed, Japan colonized Korea, and thereby, the Penal Code applied to the Korean peninsula.
Treaties
Interpretation of Treaties
Decision of Seoul District Court on the Legal Status of the 1965 Agreement between the Republic of Korea and South Vietnam (2020GaDan5110659, Decided on 7 February 2023)
In the 1960s and early 1970s, Korea sent troops to support the American military against communist North Vietnam during a two-decade conflict that ended with the fall of Saigon and the reunification of Vietnam in 1975. Korean marines were accused of killing some 70 civilians during a raid on 12 February 1968 in a case brought to court in Seoul by a Vietnamese woman who survived the massacre. Over the past three years, Vietnamese witnesses and journalists who covered the 1968 incident have appeared in court to testify.
In a landmark ruling, the Seoul District Court held the Korean government responsible for the massacre committed by its soldiers during the Vietnam War and ordered it to pay compensation. The Court ruled that the plaintiff should be compensated with 30 million won ($23,800), plus interest, for the mass killings in the town of Phong Nhi in central Quang Nam province. The plaintiff,, who was injured in the raid and lost his family, including her mother, filed the lawsuit in 2020 seeking compensation from the South Korean government. Rejecting the defendant’s argument that it would be difficult to prove that Korean troops were the perpetrators, the Court ruled that the agreement concluded between the Republic of Korea and South Vietnam in 1965, which the Korean government claims exempted its troops from legal liability, did not prevent individual Vietnamese victims from seeking compensation on the following grounds.
Representatives of the Republic of Korea Forces in Vietnam (“ROKFV”) and the South Vietnam Army co-signed a military working arrangement on 5 September 1965 (“Vietnam Arrangement”). On the following day, the ROKFV jointly agreed upon a military working arrangement with the United States Military Assistance Command, Vietnam (“US Arrangement”). Article 19 of the Vietnam Arrangement prescribes that “[c]ompensation for casualties or property damage of the Government or people of South Vietnam inflicted by agents of the ROKFV shall be negotiated separately between the authorities of the two countries.” Article 15 of the US Arrangement, however, provides that “compensation for casualties or property damage of the Government or people of South Vietnam inflicted by agents of the ROKFV, either engaging in combat or non-combat activities, shall be confirmed through a separate arrangement.”
The Court then reviewed the legal status of the arrangements on whether the abovementioned agreements are treaties duly adopted by the Korean government. Article 73 of the Constitution of the Republic of Korea (“ROK Constitution”) stipulates that the President has the authority to conclude treaties, and Article 7 of the Vienna Convention on the Law of Treaties prescribes a list of persons vested with the full powers to express consent representing a state. However, the Court found no reason to uphold that the military representatives who signed the arrangements were given the authority to conclude treaties on behalf of their states. In other words, military representatives neither had the power to conclude treaties nor were there grounds to believe they had been recognized as the competent authority to produce full powers. It is also to note that the arrangements in dispute do not appear on the list of treaties of the Ministry of Foreign Affairs. Therefore, the Court determined that they are Memoranda of Understanding (MOU) conducted between military representatives, which cannot be equated as treaties validly entered into by the Republic of Korea, and, therefore, do not give legal effect to exclude the individual’s right to claim compensation against the defendant.
Moreover, although Article 19 of the Vietnam Arrangement stipulates that compensation for the damage against the victims shall be determined between the government authorities through negotiations, it is difficult to find that such negotiations or agreements have taken place. Lastly, the Vietnam Arrangement cannot be said to establish the grounds that the Vietnamese government has surrendered the rights of compensation claims on behalf of their victims or the victims to make claims against the Korean court other than compensatory mechanisms through the diplomatic channels between the two 2s.
Decision of the Supreme Court on a Damage Claim Suit (2021Da259510, Decided on 26 October 2023)
The passengers who were the plaintiffs of this case sought compensation for mental distress caused by a 19-hour delay in their international flight from the defendant, the air carrier. The Court previously determined in 2018 that the Convention for the Unification of Certain Rules Relating to International Carriage by Air (“Montreal Convention,” Treaty No. 1876, entered into force on 4 November 2003 in Korea) takes precedence over the Civil Act or the Commercial Act of Korea governing legal relations on international carriage by air when the places of departure and destination are within the territory of a single party. (See Supreme Court of Korea Decision 2017Da240496, decided on 15 March 2018). The Montreal Convention does not cover all aspects of international carriage by air but was drafted for the purpose of unifying the interpretation and application of certain rules. Therefore, matters not regulated by the Montreal Convention should be determined based on the applicable law governing the legal relations of the parties involved in contracts for international carriage by air provided under the Act on Private International Law of the Republic of Korea, having territorial jurisdiction over this case.
Whereas Article 19 of the Montreal Convention prescribes that “the carrier is liable for damage caused by delays in the air carriage of passengers, baggage, or cargo,” it does not specify the meaning of damage provided therein. The term “damage” under Article 19, however, can be reasonably understood as referring to property damage and does not typically include mental damage unless there are exceptional circumstances based on a systemic interpretation in light of other provisions, such as Article 17 of the Convention that regulates liability for compensating for damage resulting from bodily injury and the death of a passenger. While the Montreal Convention does not explicitly include a provision that establishes the grounds to claim compensation for mental damage, the law may still allow for it. For instance, passengers who claim to have suffered mental distress due to flight delays may seek damages from airlines under the applicable supplementary laws. In such cases, the court would need to review the relevant laws governing the parties’ legal relations under the Act on Private International Law and determine accordingly the extent to which, if any, the party is liable for mental damage compensation.
The Supreme Court decided that it was not appropriate for the lower court to hold that the defendant could be held liable for mental damages by directly applying Article 19 of the Montreal Convention for the abovementioned reasons. However, the Court upheld the conclusion of the lower court, having found the defendant liable for the plaintiffs’ mental damages, is justified. The misinterpretation of Article 19 of the Montreal Convention by the lower court did not affect the Court’s decision to hold the defendant liable, which led it to dismiss the appeal.
Diplomatic and Consular Relations
Diplomatic and Consular Personnel and Immunity
Decision of the Supreme Court on the Encroachment of the Adjacent Land Boundary of the Building of the Embassy (2019Da247903, Decided on 27 April 2023)
Under customary international law, a state is, in principle, immune from the jurisdiction of another state for the acts committed within its sovereign capacity or acta jure imperii. However, it has been established that the courts of the Republic of Korea can exercise jurisdiction over private acts (acta jure gestionis) of a foreign State that was committed within the Korean territory unless there constitutes an exceptional circumstance where such acts had been committed in part of a sovereign act, or is closely related to such acts, thereby exercising jurisdiction of the court may unjustifiably interfere with the sovereign acts of the foreign State. (See Supreme Court of Korea en banc Decision 97Da39216, decided on 17 December 1998; Supreme Court of Korea Decision 2009Da16766, decided on 13 December 2011). In the present case, the Court found that the real estate is an object of territorial sovereignty and adjudged that it is difficult to deny the jurisdiction of the court of origin simply because the occupant is a foreign State. It further determined that there is no reason to consider the possession of real estate in Korea by a foreign State as part of a sovereign act or a private act closely related to a sovereign act, because there can be various causes, purposes, or forms of occupying the property.
Nevertheless, the Court did note that based on the nature and purpose, a foreign State possessing real estate as part of the premise of a diplomatic mission, which a foreign State has established as a representation of that State in a foreign territory to perform diplomatic activities, to protect its nationals, and to expedite consular matters, can be construed as closely related to a sovereign act of that State. The Court also provided that under international law, the premise of a diplomatic mission of a foreign State is principally inviolable, and the receiving State has a special duty to protect it. Therefore, if the lawsuit concerning the real estate located at the premise therein may obstruct the performance of the diplomatic mission of that State, it is the view of the Court that exercising jurisdiction is restricted. Whether there is such a concern of obstructing the diplomatic performance of the state should be determined holistically based on the grounds of the claim and its content, the effect of the favorable judgment to the plaintiff, and the relevance of the official duties of such missions concerning the said claim or judgment.
An issue of jurisdictional immunity arises when a civil claim is brought to the court against the sending State concerning the premise of the mission. Whereas diplomatic immunity and State immunity can be considered grounds for granting immunity, they are distinct, and diplomatic immunity is to be reviewed first since it constitutes lex specialis. Not only does the Vienna Convention on Diplomatic Relations of 1961 provide an exception to immunity from execution regarding the premises of the diplomatic mission rather than a general provision on jurisdictional immunity, but it is also difficult to say that the provision on diplomatic immunities applies to the sending State. In other words, diplomatic immunity is inapplicable to the immovable property possessed by the sending State. A question arises as to State immunity since an exception over immovable property has been traditionally recognized. Reflecting on the theory of State immunity and the development of diplomatic law, this exception rule does not automatically apply to diplomatic premises. Instead, it can be evaluated as a flaw in the law. Accordingly, under the general supplementary gap-filling rule, jurisdictional immunity over the diplomatic premises can be upheld mainly based on whether an exercise of jurisdiction obstructs the performance of diplomatic functions, also considering the various circumstances surrounding the case. The Court concluded that the claims were admissible based on the abovementioned criteria and determined the claim concerning the premise of a diplomatic mission as falling under State immunity rather than diplomatic immunity, which is valid. Although it would have been better if it had elaborated on the specific grounds and reasoning for arriving at such a conclusion, it is evident that there needs to be more research on the domestic implementation of customary international law as an adjudicatory norm.
* Vienna Convention on Diplomatic Relations (Treaty No. 365, entered into force on 27 January 1971 in Korea) Article 22 stipulates that “The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”
International Relations and Co-operation
Specific Bilateral Relations Issues
Decision of the Supreme Court on the Rights of the Forced Labor Victims and Their Bereaved Families to Compensation (2018Da303653 and 2019Da17485, Both Decided on 21 December 2023)
These cases were damage claims brought by the plaintiffs against the Japanese companies Mitsubishi Heavy Industries and Nippon Steel, seeking compensation for their unlawful conduct. The plaintiffs were either the victims of Japanese forced labor or their families who succeeded in the rights resulting from the death of the victims. Initially, the victims filed lawsuits against Mitsubishi Heavy Industries and Nippon Steel in 2013 and 2014, respectively. The lower courts in both cases accepted the plaintiffs’ claims and found the Japanese companies liable for compensation. However, both Mitsubishi and Nippon Steel appealed, resulting in an elongation of the trials for nearly a decade and the death of several victims.
In these cases, the Supreme Court affirmed the rulings by the lower courts that decided in favor of the plaintiffs. The Court maintained that the victims of forced labor or their successors were faced with obstacles that prevented them from objectively exercising their rights against the defendants until the 2018 en banc judgment. (See Supreme Court of Korea en banc Decision 2013Da61381, decided on 30 October 2018). Since there have been impediments objectively preventing the plaintiffs from exercising their rights effectively, the Court concluded that the defendant’s reference to the statute of limitations constituted an abuse of rights and was, therefore, impermissible. Having reaffirmed the preceding legal opinion of the Court in 2018 that the right of victims of forced labor to claim compensation from Japanese companies, premised on the illegal colonization of the Korean Peninsula and the conduct of wars of aggression by the Japanese government, was not covered by the 1965 Agreement between the Republic of Korea and Japan Concerning the Settlement of Problems in Regard to Property and Claims and Economic Cooperation, Mitsubishi and Nippon Steel will be required to pay compensation of 100 to 150 million Korean Won (KRW) per victim and delay damages to the survivors. The total compensation awarded amounts to 1.17 billion KRW.
These lawsuits are also referred to as “the second case” because the cases were brought by the emboldened victims seeking their rights to compensation only after the Supreme Court first recognized such a right for the victims who suffered from Japanese forced labor in the 2012 case against Nippon Steel. (See Supreme Court of Korea Decision 2009Da22549 and 2009Da68620, decided on 24 May 2012) These two cases, decided on 21 December 2023 are particularly worth mentioning in that they are the first to explicitly state that the victims of forced labor in Japan were faced with obstacles that prevented them from objectively enforcing their rights against Japanese companies until the en banc ruling was handed down in 2018. It was for this reason that the Court rejected the statute of limitations defense, thereby recognizing that the plaintiffs could still claim alimony for forced labor against the defendant companies.
Settlement of Disputes
Legal Solution of Disputes
Decision of Daejeon High Court on the Litigation for the Return of Cultural Property (2017Na10570, Decided on 1 February 2023)
This case concerns Seosan Buseoksa temple, the plaintiff, filing a claim against the Republic of Korea for the return of the “Gilt-bronze Seated Avalokitesvara Bodhisattva” of the Goryeo dynasty. However, the Court rejected the claim and recognized that the ownership belongs to the supplementary intervenor of the defendant (Kan’on-ji temple of Japan). The Court also reviewed the applicability of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“the UNESCO 1970 Convention”) and the UNDROIT Convention on Stolen or Illegally Exported Objects (“the 1995 UNDROIT Convention”) in this case.
Firstly, the Court found that claiming acquisitive prescription over the subjected statue cannot be ruled out based on the 1970 UNESCO Convention, given the time at which the illegal exporting of the statue by the Japanese raiders (Wokou) had occurred well before the Convention entered into force in Korea as Article 7 only obliges the state party “… to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned.” Moreover, Article 5(1) of the 1995 UNDROIT Convention stipulates that “[a] Contracting State may request the court or other competent authority of another Contracting State to order the return of a cultural object illegally exported from the territory of the requesting State.” This article can be construed to pronounce that illegally exported cultural properties shall be returned to the State of origin, notwithstanding the acquisitive prescription principle under the Civil Act. It appears that although the Court agreed that the Buddha statue should be returned to Korea if it was illegally exported to Japan, the main focus of the case at hand is different from what was stated in the 1995 UNDROIT Convention. The issue being disputed is related to a civil lawsuit concerning the ownership of the cultural property. Moreover, the Republic of Korea is not a state party to the Convention. Accordingly, the Court determined that the 1995 UNDROIT Convention does not affect the decision to which the statue’s ownership belongs.
Whereas the Court rejected the claims of the plaintiff owing to insufficient evidence to prove ownership over the Buddha statue, it is meaningful in that the Court raised the question of how the return of the statue should be done by considering relevant international norms on cultural property protection.
Human Rights
Protection under International and Domestic Law (Refugees)
Decision of the Supreme Court on the Question of Recognizing the Convention Relating to the Status of Refugees (“Refugee Convention”) as a Direct Adjudicatory Norm in the Trial (2021Do3652, Decided on 13 March 2023)
The defendant is from Iran and was prosecuted mainly on two grounds: one is that the defendant interfered with the public official working at the Republic of Korea embassy in executing the duties when issuing a visa by deceiving one’s status as if invited for business. The other is that the defendant fraudulently applied for a visa which constitutes an act of violation under the Korean Immigration Act. The original trial decided to exempt the penalty under Article 137 of the Criminal Act and former Korean Immigration Act since the defendant was approved and confirmed by the judgment decision as qualifying the conditions under Article 31(1) of the Refugee Convention. The Supreme Court confirmed the original verdict as follows.
Article 6 (1) of the ROK Constitution prescribes that “[t]reaties 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.” Accordingly, the Supreme Court found that all national bodies, not only the legislature and the executive but also the judiciary, need to work towards putting into effect international norms respecting the spirit of international cooperation. Moreover, the Refugee Convention has the same effect as a domestic law, which is equivalent to that of an ‘Act’, and in some cases, provisions can be directly applicable to adjudication dependent upon the content and nature. As a state party ratified the Convention, the Court referred to Article 31(1), which obliges the state parties not to impose penalties against an individual qualified as a refugee, as the grounds to exempt penalty for the defendant in Korean criminal proceedings.
* Article 137 (Obstruction of Performance of Official Duties by Fraudulent Means) of the Criminal Act of Korea: A person who interferes with the execution of duties by a public official by fraudulent means, shall be punished by imprisonment for not more than five years, or five not exceeding ten million won.
* Article 31 (1) of the Refugee Convention: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
Decision of Incheon District Court concerning a Case Involving a Group of Russians Who Came to South Korea to Escape Forced Conscription and Sought to Overturn a Decision Not to Recognize Them as Refugees (2022GuDan52109, Decided on 14 February 2023)
Having arrived at Incheon International Airport, three Russian nationals, the plaintiffs of this case, applied to be recognized as refugees under Article 6 of the Refugee Act. The plaintiffs brought a claim for cancellation to the Court, requesting to revoke the decision of the Incheon Airport Immigration and Alien Affairs Commissioner, the defendants of this case, not to refer to the refugee recognition review procedure under Article 5(1)(7) of the Enforcement Decree of the Refugee Act because it was unlawful. The Court found for the plaintiffs to be recognized as refugees since there were sufficient grounds for fear of being persecuted when the acts concerned, such as the refusal for conscription based on political motivations, can be assessed as expressing political opinions. Having reviewed the social background and the reason behind the refusal of conscription of plaintiffs 1 and 2, the Court ruled that the decision should be revoked since it was unlawful to assert that they fall under Article 5(1)(7) of the Decree. On the other hand, it found that the decision was lawful for plaintiff 3 since the plaintiff, a dual national of Russia and Kyrgyzstan, was not unable to receive protection from Kyrgyzstan, and it was evident that the conditions under the Decree had yet to be met.
* Refugee Act of Korea, Article 6 (Application Filed at Ports of Entry and Departure) provides as follows:
(1) Where a foreigner intends to apply for refugee status when undergoing an entry inspection, he or she shall submit an application for refugee status to the head of the local immigration office or foreigner-related office having jurisdiction over the port of entry and departure prescribed by the Immigration Act.
(2) The head of a local immigration office or foreigner-related office may allow a person who has submitted an application for refugee status at the port of entry and departure under paragraph (1) at a specific place in the port of entry and departure within seven days.
(3) The Minister of Justice shall decide whether to refer to refugee status screening for a person who has submitted an application for refugee status under paragraph (1) within seven days from the date on which the application is submitted, and where he or she fails to decide within such period, he or she shall permit such applicant to enter.
(4) Basic food, clothing, and shelter shall be provided to refugee applicants at ports of entry and departure for the period prescribed in paragraph (2) as prescribed by Presidential Decree.
(5) Necessary matters, such as procedures for application for refugee status at ports of entry and departure, other than those provided for in paragraphs (1) through (4), shall be prescribed by Presidential Decree.
* Article 5(1)(7) of the Enforcement Decree of the Refugee Act provides as follows: Where a refugee status application is incontestably groundless, such as applying for refugee status only for economic reasons.
Protection under International and Domestic Law (Children)
Decision of Seoul District Court on the Question of Whether Illegal Interstate Adoption Violates International Law (2019GaHap502520, Decided on 16 May 2023)
The plaintiff, identified as an orphan despite having biological parents and having been sent for adoption, made claims against Holt Children’s Services Inc. and the Republic of Korea. Whereas the Court held Holt Children’s Services Inc. liable for failing to exercise its obligations to protect the plaintiff as a guardian and to confirm the acquisition of nationality, it rejected the compensation claims brought against the Korean government on the following grounds.
The plaintiff claimed that the defendant has an obligation to confirm whether the child adopted abroad has acquired nationality and to assist the subject child in acquiring nationality if such has not been duly done. The plaintiff derived such obligations from Article 2(2) and Article 10 of the ROK Constitution, Article 24 of the ICCPR, Article 7 of the Convention on the Rights of the Child, and Article 8 of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally. The arguments were that the defendant did not fulfil its obligations, either intentionally or with negligence, even though it could simply carry out the obligations by supervising and monitoring Holt Children’s Service Inc. to identify and report whether the child being adopted abroad has acquired nationality. Also, the plaintiff claimed that the defendant had failed to intervene or offer adequate protection during the process of being adopted twice and while experiencing child abuse, despite the defendant having obligations to confirm whether the adopted child is taken adequate care of under the adoptive family and to take follow-up measures, if needed, under Article 9 of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.
Nevertheless, the Court found that the international human rights norms that derive the defendant’s obligations are mainly declaratory or instructive, which does not provide the standards for the provision to be applied in adjudication. Therefore, the rights claimed by the plaintiff are not said to be established enough on the grounds of law to claim an infringement of the rights or violation of obligations. Also, the Court added that the obligations as claimed by the plaintiff could not be derived from the said articles in the Constitution, such as Article 2(2) and Article 10, because although they may provide guidelines on how to utilize and formulate adoption policies of the defendant, adoption-related policies can only be actualized through domestic legislation such as Act on Special Cases Concerning Adoption.
* Article 2(2) of the Constitution of Korea stipulates that “It shall be the duty of the State to protect citizens residing abroad as prescribed by Act”, and Article 10 provides that “All citizens shall be assured of human worth and dignity and have the right to pursuit of happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.”
Law of the Sea
State Litigation on Maritime Zones, Rights and Obligations
Decision of Busan District Court on the Rights to Seek Remedies (2021GaHap43947, Decided on 17 August 2023)
South Korean nationals living in Busan and Gimhae filed a lawsuit against Japan’s Tokyo Electric Power Company Holdings, Inc. (TEPCO), seeking a ban on the discharge of the Fukushima radioactive contaminated water into the sea. The Busan District Court dismissed the primary claim and the first supplementary claim based on the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 and the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, reasoning that the Republic of Korea and Japan are State parties to both multilateral treaties that provided for rights and duties under international law and international dispute settlement procedures, which did not create specific rights for nationals of a party to seek remedies, such as injunctive relief, against nationals of another party. Whereas the Court dismissed the claims because such treaties do not serve as adjudicatory norms, the case is currently pending on appeal (Busan High Court 2023Na55750).