I am so pleased to meet so many of you this afternoon. Thank you so much, for that thoughtful and generous introduction. I’d like to thank Dean Martha Minow for inviting me to offer remarks here today. And so many thanks to Professor William Alford and other staff of HLS for organizing this marvelous opportunity to have this talk with you.
It is my honor and privilege to deliver a talk on the constitutional adjudication system of Korea at such a distinguished school as Harvard.
In fact, this is my second trip to this campus, and I cannot tell you how excited I am to be back here, especially as President of the Korean Constitutional Court. I guess you may all know one of the traditions of Harvard tour: rubbing the left toe of John Harvard statue for good luck.
When I first visited Harvard back in the summer of 1997, I did what the guide to ldme to do, as he said it will bring me back to Harvard someday. As you can see, what the guide to ldme was not a lie after all.

Before coming to this hall, I had the chance to visit the Memorial Church, where the list of the Harvard men who died in the Korean War was engraved on a bronze plaque.
I’d like to pay my tribute and respect for their sacrifice in an alien country to safeguard world peace and free democracy.

Now, Korea has risen above the ashes of war and has become a country that provides aid to other countries. I think many of you may have heard about Korea’s development of economy and culture, but the Korean judicial system may be a bit less known area to the students here in the U.S.
And I think today will be a good opportunity to give a closer look at where Korea stands in terms  of constitutional justice.

Dean Martha Minow, who's right here with us today, visited the Constitutional Court of  Korea in May this year. At that time, she asked me to talk about the constitutional justice of Korea if I have the chance to visit the U.S.

I accepted her request, and sought her advice on which subject would be better for the talk, whether it should be an introduction of the Korean constitutional adjudication system or about an actual case decided by the Korean Constitutional Court. Well, she wanted me to do both, and that's what I am going to do today.

But I'm afraid my talk would not be able to fully deliver all the points that I intend to make.
First, given the time constraint, it's not easy to squeeze both subjects into an hour and deliver it to you skillfully.

And second, I'm not so confident about my English skills and pronunciation.
So if my messages fail to get across clearly, I hope you can refer to the distributed materials for details.

The State's Duty to Protect Women from Human Rights Violation
- Focusing on a case of the Constitutional Court of Korea

Chapter 1. Introduction

1. Significance of Constitutional Adjudication
We learn from the history of mankind that the ideals of modern constitutions that check and balance state powers and provide guarantee for individuals’ liberty and rights are a valuable asset of our humanity.

Constitutional adjudication, which was created to uphold and defend the constitution effectively, and often referred to as “judicial review” in the United States, is becoming more and more active and popular across the globe, playing a crucial role in the protection of citizens’ fundamental rights and the establishment of the rule of law.

2. Constitutional Adjudication in Korea
Unlike the U.S., where the Supreme Court has established its federal judicial power over constitutional matters through its decisions, including Marburyv.Madison(1803), Korea has a specialized constitutional court, which is independent from or dinary courts and exercises exclusive jurisdiction over constitutional cases.

As stipulated in the Korean Constitution, the Constitutional Court of Korea is vested with exclusive power to review the constitutionality of statutes passed by the legislature, impeachment of high-ranking government officials, dissolution of political parties, and competence disputes between state agencies, state agencies and local governments, and between local governments.

Moreover, any person who claims that his/her fundamental rights guaranteed by the Constitution have been violated by government action or inaction, may file a constitutional complaint with the Constitutional Court, in accordance with the Constitution and the Constitutional Court Act (Article 68 Paragraph 1). This constitutional complaint system can deal with all actions or inactions of all state agencies that exercise legislative, executive, and judicial powers (except the judgments of the ordinary courts), and is acclaimed as one of the most effective mechanisms to check and balance state powers and guarantee citizens’ fundamental rights. It does not require a case to be pending before the ordinary courts, so that any citizen may be able to file a constitutional complaint with the Court whether or not he/she has a pending court case. Therefore, this system distinguishes itself from the judicial review in the U.S.

3. Introduction of the Comfort Women Case
Today, I would like to elaborate on the Korean constitutional complaint system by introducing the so called “comfort women case,” in which the constitutionality of the government’s omission to act was at issue.

The case was related to Article 3 of the "Agreement on the Settlement of Problem concerning Property and Claims and the Economic Cooperation between the Republic of Korea and Japan, which was executed in 1965 (hereinafter the “Agreement”), and its decision was announced on August 30, 2011 (2006Hun-Ma788).

The Constitutional Court held in that decision that it is unconstitutional for the Korean government not to take action under the procedures provided in the Agreement to resolve the dispute over the rights of comfort women against Japan, who had been forced into slavery by the Japanese military during World War II.

In that case, the Constitutional Court focused on whether or not the Korean government fulfilled its obligations to enable the comfort women to exercise their damage claims against the Japanese government.

Chapter 2. Factual Background of the Case

1. Sexual Slavery Forced by the Japanese Military
(1) The so called “comfort women”, who are also referred to as “sex slaves”, were women and girls forced into a prostitution corps created by the Empire of Japan during World War II. The name “comfort women” is a translation of a Japanese name iafu,whichisaeuphemismforprostitute(s).

(2) The so called “comfort stations” where comfort women served the Japanese soldiers were first installed by the Japanese navy during the 1932 Shanghai Incident to prevent frequent occurrence of rapes committed by former Japanese soldiers, which caused local resistance and sexually transmitted diseases. The Japanese military built comfort stations at occupied areas, as it sent many troops to China for the Sino-Japanese War, which began in July 1937, and the number of comfort stations grew after the Nanjing Massacre in December 1937. The introduction of comfort stations was regarded as "mental solace to the Japanese soldiers," which could boost morale and alleviate discontent among the soldiers who were likely to run away from the war that never seemed to end.

From 1941, the Japanese military created comfort stations in Southeast Asian and the Pacific region as well during World War II. It is confirmed by official documents that areas where comfort stations were established included Chosun (old name for Korea), China, Hong Kong, Macao, and the Philippines, which were all invaded by Japan. The number of comfort women is estimated at 80,000-200,000, and 80 percent of them were from Chosun, and the others were from the Philippines, China, Taiwan, and even the Netherlands.

(3) The comfort women were dragged to war-fronts in many ways, such as fraud, blackmailing, and kidnapping and had to meet all kinds of sexual needs from Japanese soldiers, with no control over the situation. They lived in sub-human conditions, being beaten and stabbed for being not so ready to satisfy the various sexual demands of the Japanese soldiers. Most of the comfort women were suffering from sexually-transmitted diseases, mental diseases, and many other types of illness; some were forced to have sterilization surgery, and even those who were ill due to the service could not return to their home with the purpose of preventing the leak of confidential military information. Most comfort women victims died in the battlefield during the war, some of those who were able to return home also died of diseases caused by aftereffects in young age, and the rest who have survived have lived in deep despair with a feeling of isolation from their family and society.

(4) On August 4, 1993, the Chief Cabinet Secretary Yohei Kono issued a statement based upon a study conducted on "comfort women." The statement said, "Comfort stations were operated in response to the request of the then military authorities. The Japanese military officials were, directly or indirectly, involved in the establishment and management of the comfort stations and the transportation of the comfort women.” It also stated, "in many cases they were recruited against their will, through seduction, coercion, etc., and that administrative/military personnel themselves directly took part in their recruitments," adding, “The Japanese government would like to take this opportunity to extend its sincere apologies and remorse to all those who suffered immeasurable pain and incurable physical and psychological wounds as comfort women."

The Kono Statement admitted to and apologized for the involvement of the Japanese military authorities in forced drafting of the comfort women, and by this statement, the Japanese government officially admitted to coercive nature of drafting comfort women.

20 years have passed since the statement, but the Japanese government has taken no action to pay damages to the comfort women who are now well advanced in years. Furthermore, some government officials still deny the existence of the draft system despite numerous convincing pieces of evidence, even claiming that the Kono Statement should be revised.

2. Progress of Signing the Agreement between Korea and Japan
(1) Article 4 (a) of the San Francisco Peace Treaty signed between Japan and part of the Allied Powers on September 8, 1951 after the Second World War provides,
“Subject to the provisions of paragraph (b) of this Article, the disposition of property of Japan and of its nationals in the areas referred to in Article 2, and their claims, including debts, against the authorities presently administering such areas and the residents (including juridical persons) thereof, and the disposition in Japan of property of such authorities and residents, and of claims, including debts, of such authorities and residents against Japan and its nationals, shall be the subject of special arrangements between Japan and such authorities.”
(2) In order to dispose of the property and claims including debts pursuant to Article 4 (a) of the aforementioned treaty, the talks between Korea and Japan began on February 15, 1952. The Korean government claimed eight items regarding its properties and claims, including the return of art works taken out from Korea, as well as "government bonds, public loans, and Japanese bank bills which are owned by Korean nationals, accounts receivable of drafted Koreans, and other claims of Koreans." However, the talks were stalled as the Japanese government objected to paying the damages of the Koreans.

(3) Concluding the talks, on June 22, 1965, the governments of Korea and Japan signed an agreement on the settlement of claims, which states that Japan shall provide a designated amount of grants and loans without any labels attached, and that the Contracting Parties shall confirm that the "problem concerning property, rights and interests of the two Contracting Parties and their nationals and concerning claims between the Contracting Parties and their nationals is settled completely and finally."

(4) Article 2 Paragraph 3 of the Agreement provides that no contention shall be made with respect to any claims of either Contracting Party and its nationals against the other Contracting Party and its nationals. Article 3 of the Agreement states that "Any dispute between the Contracting Parties concerning the interpretation and implementation of the present Agreement shall be settled, first of all, through diplomatic channels, and, if not, shall be referred for decision to an arbitration board.”

(5) In February 19, 1966, the Korean government enacted a law to provide grants received from Japan to those who filed for civil compensation, but the beneficiaries were limited to the deceased among those who had been drafted against their will by Japan and those "holding civil claims for private loans or bank deposits who had been discussed during the aforementioned talks."

(6) This way, the comfort women issue was not discussed at all during the Korea-Japan talks for signing the Agreement, and it was neither included in the eight items suggested by the Korean government. Furthermore, comfort women were excluded from the beneficiaries to be compensated by the Korean government according to the new law, enacted after signing of the Agreement.

3. Formation and Development of the Comfort Women Issue
(1) The issue of comfort women, which had not been discussed at all before, began to be raised in the 1990s by the press conference held by the victims of comfort women themselves.

(2) The Japanese government, however, totally denied its responsibility and made a statement implying that the comfort women were "prostitutes" brought by a private trader who followed the military. But the Japanese government had to change its position, as six official documents indicating direct involvement of the Japanese military in drafting comfort women were discovered in the Japanese Defense Agency Library in January 1992.

Pressured by the public appearance of the victims, discovery of new evidence, and mounting public opinion, the Japanese government embarked on a fact-finding investigation, and on August 4, 1993, Chief Cabinet Secretary Yohei Kono issued a statement, admitting to and apologizing for the involvement of the Japanese military and authorities in forced drafting of comfort women and in committing a grave violation of the victims’ human rights.

(3) The Japanese government, however, maintained its position that compensation for comfort women had already been settled by the Agreement and there would be no additional legal measure. At the same time, the Japanese government announced on August 31, 1994 that it may provide consolation money or settlement funds on an individual basis from a humanitarian perspective, given its moral responsibility for the damage done to human dignity and honor of the comfort women and that it would pursue other ways such as the "Fund for Women in Asia" not at a government level, but at a civil level.

(4) The comfort women victims and their support groups in Korea, Taiwan, etc. regarded the Fund for Women in Asia as a way for the Japanese government to evade its responsibility, and expressed strong opposition to the idea of treating the comfort women as those in need of humanitarian aid.

(5) Meanwhile, the Korean government enacted a law to provide the comfort women with support for living expenses and paid them 43 million Korean won originally suggested by the Fund for Women in Asia.

(6) The Korean comfort women filed several claims against Japan for compensation in Japan, but the Supreme Court of Japan denied them all in 2004. In the lawsuit, however, Tokyo High Court, ruled that the plaintiffs (victims) may have obtained rights to claim damages on the basis of breach of safety obligations or tort, but that all those claims fall in the category of "property, rights and interests" specified in Article 2 Paragraph 3 of the Agreement and thus compensation cannot be sought. Cases filed by comfort women in other countries including China and Taiwan were also dismissed by the Japanese Supreme Court.

4. Reaction from the International Community

The international community has raised voices over the comfort women issue that Japan is in violation of comfort women's rights, and that it has to make apologies, disclose all relevant information and materials, and provide compensation for damages.

(1) On January 4, 1996, the U.N. Sub-Commission on Human Rights released the "Coomaraswamy Report" on comfort women, where the sub-commission confirmed that Japan was in violation of human rights and the international law by forcing comfort women into sexual slavery during World War II, and proposed six-point recommendations, calling upon the Japanese government to provide compensation for damages at the government level, punish those responsible, disclose all government materials, issue an official written apology, and revise its history textbooks.

In due course, the 52nd session of the U.N. Human Rights Committee decided to adopt the report on April 19, 1996.

(2) In addition, on August 12, 1998, a U.N. Sub-Committee on Prevention of Discrimination and Protection of Minorities announced and adopted a report submitted by Special Rapporteur Gay J. McDougall in which she urged the Japanese government to fulfill its legal liability to provide compensation for the victims and punish those responsible. The McDougall Report (1) clarified that the comfort women system was a form of sexual slavery and underscored its coercive nature by characterizing comfort station as a rape center or a rape camp, (2) demanded the identification of surviving war criminals while pursuing the punishment of those responsible, (3) called for active intervention from the U.N., including the U.N. Secretary General being reported on the progress of the issue at least twice a year by the Japanese government and the U.N. High Commissioner for Refugees forming a panel in cooperation with the Japanese government for punishment of those accountable and appropriate compensation, and (4) emphasized the need for prompt and immediate compensation by the Japanese government, given the advanced age of the surviving victims.

(3) A movement began in Japan to remove “comfort women” from its textbooks and revise the "Kono Statement" that admitted to Japan's responsibility,andtheinternationalcommunityrespondedtothemovementbydenouncingit.

(4) On July 30, 2007, the U.S. House of Representatives unanimously adopted a resolution on comfort women, demanding that the Japanese government should: (1) formally acknowledge, apologize, and accept historical responsibility for its Imperial Armed Force's coercion of young women into sexual slavery (comfort women) during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s to the end of World War II, (2) refute clearly and openly any claims that the sexual enslavement and trafficking of the comfort women never occurred, and (3) in accordance with the international community's recommendations, educate current and future generations about such horrendous crime.

(5) The House of Representatives of the Netherlands (Nov. 8, 2007), the House of Commons of the Parliament of Canada (November 28, 2007), and the European Parliament (Dec. 13, 2007) also adopted similar resolutions, calling on the Japanese government to make a formal apology for its brutality in forcing over 200,000 comfort women into sexual slavery, accept historical/legal responsibility, provide compensation for the victims, and educate current and future generations about the sexual enslavement.

(6) On June 12, 2008, the U.N. Human Rights Council, following a regular session on the situation of human rights in Japan, officially adopted a working group report containing recommendations and queries from other countries on the comfort women issue. Meanwhile, the United Nations Committee on "Human Rights Concerning the International Covenant on Civil and Political Rights" published a report on human rights review in Japan on October 30, 2008 and advised the Japanese government to acknowledge its legal liability toward comfort women and apologize in a manner acceptable to the majority of the victims.

(7) On December 11, 2010, the Korean and Japanese Bar Associations also issued a joint statement which pointed out that (1) inconsistent interpretation and response of the Korean and Japanese governments regarding the contents and the scope of the provision in the Agreement that stipulates "complete and final settlement" has disrupted the provision of a legitimate remedy and increased distrust among the victims, and that (2) the Japanese government and the National Diet of Japan have to promptly initiate legislation to settle the comfort women issue, which includes apology and financial compensation for the victims. The statement also urged the Japanese government to settle the issue through legislation while there is at least one more surviving victim and demanded the Korean government to take more aggressive diplomatic policy measures.

(8) To sum up, the international community is openly criticizing the Japanese government’s passive stance on this issue, since given the nature and the scope of damages done to the comfort women and their continuing nature, it is crucial to proclaim that forcing women, who are the very source of maternity, into sexual slavery for the military is a heinous crime that should never be tolerated by humanity.

Chapter 3. Constitutional Court's Judgment on Whether the Government's Omission to Act is Constitutional

1. Dispute over Interpretation of the Agreement and Dispute Settlement Procedures
(1) On August 26, 2005, the government of Korea announced its position that the Agreement was signed with the purpose of resolving the financial, civil debtor/creditor relationship between Korea and Japan according to Article 4 of the San Francisco Treaty, and that the Japanese government is legally responsible for "unlawful acts against humanity," since the cases where the state power was directly involved, such as in this case, should not be considered to have been resolved by the Agreement.

(2) However, the Japanese government is claiming that the comfort women issue has been completely settled by (1) the statement of apology of then Chief Cabinet Secretary Kono Yohei, (2) settlement of legal issues by signing the Agreement, and (3) many other activities including the Fund for Women in Asia (Recently, some Abe administration’s officials have even asserted that the forced drafting of comfort women should be denied and that the "Kono Statement" should be corrected, despite ample evidence to the contrary.).

(3) Thus it is clear that the governments of Korea and Japan have different views in interpreting the "claims" specified in Article 2 Paragraph 1 of the Agreement, whether they include damages claim of the comfort women or not, so these different views in interpretation should constitute a "dispute" defined in Article 3 of the Agreement.

(4) Article 3 Paragraph 1 of the Agreement states that "Any dispute between the Contracting Parties concerning the interpretation and implementation of the present Agreement shall be settled, first of all, through diplomatic channels," and Paragraph 2 of the same Article provides that any dispute that fails to be settled under Paragraph 1 shall be referred for arbitration.

Therefore, once a dispute occurs, the Korean government should, in principle, settle it first through diplomatic channels pursuant to the dispute settlement procedures set forth in Article 3 of the Agreement, and then, if this effort is exhausted, should take the case to arbitration. In this context, the subject matter of review will be whether it is constitutional that the "Korean government" failed to initiate the abovementioned dispute settlement procedure, and if so, whether the government’s failure constitutes a violation of the fundamental rights of the comfort women.

2. Whether the Korean Government's Omission to Act Violates the Comfort Women’s Fundamental Rights (Court Opinion by 6 Justices)

(1) The state's duty to protect individuals’ fundamental rights
Article 10 of the Constitution stipulates, "All citizens shall be assured of human worth and dignity and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals." "Human dignity" is a supreme constitutional value as well as a goal set forth by the state binding all government institutions, and the state is entrusted with the duty and obligation to realize human dignity. For this reason, human dignity not only sets the "boundary of state power" but also presents a "goal for state power" to protect citizens from a third party when their dignity is at stake.

In fact, the state’s duty to restore human dignity and worth of the comfort women victims who had to live tragic lives for a long time by being forced into sexual slavery by the Japanese military with their dignity and worth trampled, should be one of the most fundamental duties of the state, like the state’s duty to protect the lives of the citizens.

(2) The state's duty to take action
Consequently, the state's duty to pursue dispute settlement procedures under Article 3 of the Agreement stems from the constitutional request to help the victims to pursue their claims against the Japanese unlawful acts, which had done serious harm to the victims. If the state fails to act in fulfilling its duty to pursue “dispute resolution” with Japan, the victims’ fundamental rights will be significantly undermined. Thus the state's obligation to act in this case is the obligation dictated by the Constitution and specified in the relevant statutes.

Moreover, since the Korean government signed the Agreement that included a broad notion of "all claims," from which a dispute arose between Korea and Japan, it has a specific duty to resolve the dispute by settling the victims' claims against Japan and restore their human dignity and value.

(3) The significance of the infringed fundamental rights
The damages done to the comfort women derive from forced mobilization for sexual slavery by the Japanese Government and military, which is an exceptional harm inflicted on the victims’ human dignity and worth.

The report of a non-governmental organization named International Commission of Jurists released on September 2, 1994 and the "Coomaraswamy Report" of the U.N. Sub-Commission on Human Rights published on February 6, 1996 defined Japan's comfort women system as "sexual slavery by the military. "And there port released on August 12, 1998 submitted by Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices during Wartime, Gay J.McDougall of a U.N.sub-committee concluded that such an action amounts to "crimes against humanity."
The resolution adopted by the U.S. House of Representatives in July 2007 also described Japanese military's sexual slavery as "forced military prostitution by the government of Japan, considered unprecedented in its cruelty and magnitude" and "one of the largest cases of human trafficking in the 20th century." Furthermore, the Shimonoseki Branch of the Yamaguchi District Court of Japan ruled on April 27, 1998 that it is a "clear case of sexual and ethnic discrimination, a fundamental violation of human dignity of the women, and debasement of the national pride," and admitted the liability of the Japanese legislative inaction with regard to the comfort women and ordered compensation for damages.

By settling the claims of comfort women against the Japanese government for its extensive crimes against humanity, the victims’ dignity and worth and their individual liberty that have been ruthlessly and continuously violated will be able to be restored. Therefore, the state’s omission to act which prevented the victims from pursuing their damage claims is not an issue limited to monetary compensation, since it is directly related to the grave violation of the comfort women’s fundamental rights..

(4) Urgency of a legal remedy for fundamental rights violation
We may say that it is in effect impossible to obtain judicial remedies from the Japanese courts or expect sincere apology and remedies from the Japanese Government at the moment.

Much more than 60 years have passed since the end of the Second World War during when the victims were forced into sexual slavery by the Japanese military, and it was more than 20 years ago when the victims brought lawsuits against Japan. Consequently, if we delay any longer, it would be nearly impossible to bring justice to history and restore the victims' dignity and worth through their damage claims.

(5) Possibility of a settlement
Given the circumstances, including how the Agreement was signed, as well as the movements of those in Korea and in the international community who have been appalled by the unprecedented violation of women's rights and calling for Japan's admission of the facts, sincere apology, and compensation, we cannot exclude the possibility of obtaining compensation from the Japanese government if the Korean government initiates a dispute resolution procedure under Article 3 of the Agreement.

(6) Conclusion
In conclusion, the state’s duty to take measures for dispute resolution on behalf of the comfort women under Article 3 of the Agreement is derived from the Constitution itself and provisions specified in the statutes. Furthermore, if we view from a broader perspective and consider the grave violation of fundamental rights including their human dignity and worth in addition to the urgency and possibility of an effective legal remedy, the Korean government’s omission to act to initiate dispute resolution procedures under the Agreement, violates the Korean Constitution.

3. Dissenting Opinion
The "settlement through diplomatic channels" in Article 3 of the Agreement falls in the highly political area which calls for judicial restraint. Moreover, if the Constitutional Court imposes a duty to seek "diplomatic settlement," on the executive branch, it may violate the principle of separation of powers, which gives the executive, not the judiciary, the power to make policy decisions as well as formulation and execution of foreign policies.

The state, of course, should act when we consider the urgency of the claims of the victims who had been forced into sexual slavery by the Japanese military with their human dignity and worth completely stripped off. Nevertheless, diplomatic settlement procedure cannot be forced upon the Korean government, given the principle of separation of powers.

4. Aftermath
After the Constitutional Court announced a ruling in this case, the Ministry of Foreign Affairs of Korea sent diplomatic documents twice to Japan, proposing "bilateral talks for dispute resolution" , but the government of Japan has made no meaningful replies to settle the issue. The Korean government is currently reviewing whether or not to propose setting up an arbitration board, as provided in the Agreement.
At present, there are 56 surviving comfort women in Korea, and they are all advanced in years. And this is one of the reasons why Japan has to pay promptly for damages done and make sincere apologies to them.

Chapter 4. Assessment of the Decision

1. Significance of the Ruling
(1) A nation governed by the rule of law has to put in place a mechanism through which individuals can obtain judicial remedies when their rights are violated. If not, rights guaranteed under the Constitution will be nominal without having normative power.

The Constitutional Court took note of the specific nature of the infringement of comfort women’s fundamental rights and its historical importance, holding that the state’s omission to act to settle the comfort women’s damage claims against Japan is unconstitutional.

This ruling of the Constitutional Court reaffirmed the international norm that guarantees fundamental rights of human beings that have universal value, especially from the point of view that afflicted women should be given a remedy when their dignity and worth have been violated by state power.

The Constitutional Court also stressed that the state should protect its own people from their fundamental rights violation and help them to obtain legal remedies, and accordingly it cannot, under its discretion, arbitrarily neglect those seeking to exercise their rights through damage claims. This decision will be a meaningful precedent in terms of complying with and enforcing the generally accepted international human rights law, which is aimed to guarantee individuals’ fundamental rights. Modern international law cannot be a legacy of the 17th century law which used to treat individuals as mere subjects of law enforcement.

(2) This decision by the Constitutional Court is related to the universal nature of human rights. As we can see from the Bosnian War, infringing on women's rights to sexual self-determination, even during wartime, has become an issue that has to be addressed in many areas of the world that are in conflict. Leaving this situation unattended cannot be tolerated in this civilized world which has endeavored to promote human rights over the centuries.

The ruling is also very meaningful in that it is a reaffirmation of human rights awareness and its development. It made it clear that the humanity will persistently demand an apology and self-reflection if fundamental human rights are violated against humanity, and sent a strong message that such human rights violation should not happen again under any circumstances by raising the comfort women issue publicly, which is one of the most well-known cases of sexual slavery and grave human rights violation against humanity. This decision has symbolic meaning in that it demonstrates how the human rights law can become a mandatory norm in the international law.

(3) The series of efforts to resolve the issues related to the comfort women system are acclaimed to make a great contribution to the historical development of promoting women’s rights and social transformations in the international community including Korea, the U.S., Japan and the United Nations. This brought the forgotten history of human right abuse during World War II to the spotlight and became a turning point for the United Nations to take the Japanese wartime violence against women seriously, which was reflected in the “Rome Convention on International Criminal Court” adopted in 1998 and the military sexual slavery issue became the key agenda of the International Labor Organization (ILO).

(4) For your reference, a short summary of the arguments supporting Japan’s national responsibility for the comfort women is as follows:
① It is a “crime against humanity” stipulated in Principle V of the Nuremberg Principles (August 8, 1945).
“Crimes against humanity” means murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian populations, before or during the war; or prosecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
② It is a grave violation of the Geneva Convention of August 1949 as serious violation of human rights and freedom.
③ It falls into sexual slavery in violation of the ILO Convention No. 29 ratified in 1932 by Japan.
Especially, the Committee of Experts of the International Labor Organization has filed a report in 1996 and officially noted that the comfort women system by the Japanese Imperial Forces should be characterized as ‘sexual slavery in violation of the ILO Convention No. 29 ratified in 1932 by Japan. The Committee of Experts also recommended that as a signatory to the Convention, the Japanese government itself, not private parties, should give proper consideration to provide reparations to the victims and survivors including salary payment expeditiously.
④ It is a violation of ‘law of humanity and the dictates of the public conscience’ stipulated in the “Regulations respecting the Law and Customs of War on Land (1907)” and also against the “Freedom of Slavery” under the international customary law.
⑤ Meanwhile, the statute of limitations will not apply to Japan’s military comfort women case under the international laws. Especially, the UN General Assembly Resolution No. 2391 of 1968 clearly stated that in war crime and crime against humanity cases, statutes of limitations are not applicable.

2. Cases in Comparison
(1) Unlike Japan, Germany took a clear position to acknowledge the human right violations committed during World War II by the Nazi Germany, extended a national apology to the victims and provided monetary reparations.

On December 7, 1970, West German Chancellor Willy Brandt travelled to Warsaw, Poland and knelt down before the commemoration monument in Warsaw Ghetto with tears in his eyes. His gesture of repentance and apology symbolically showed Germany’s stance toward its past wrongdoings. In addition, on August 20, 2013, German Chancellor Angela Merkel visited Dachau concentration camp, which was the first concentration camp for political prisoners near Munich, and expressed her feelings of remorse and sadness for what had happened at the concentration camp. Through those activities, not only the victims but also the whole world opened their hearts to Germany’s sincere apology and regret. With this, Germany could be a respected member of international community, which in turn became the basis of regional peace and cooperation, ultimately leading to the foundation of the European Union.

(2) As one of the noteworthy international precedents related to this case, there is a case where France asked Germany to provide additional reparations due to the changes in domestic situation. After signing the “Treaty of Reparations for French victims of Holocaust” on July 15, 1960 with France, Germany had paid D.M. 400million. Even though the right to request for reparations for French survivors and victims’ heirs had been terminated according to Article 3 of the Treaty, France asked Germany to provide additional compensation for the victims of forced conscription, which the German government accepted.

On July 6, 2000, the German legislature (the Bundestag) passed a bill to establish a foundation called “Remembrance, Responsibility and Future” and a DM 10 billion fund (approx. 4.9 billion dollars, according to the exchange rate as of July 6, 2000) was raised for reparations of former slaves or forced laborers during World War II. Both the German government and German corporations evenly shared the financial burden because both of them had benefited from the slavery or forced labor. Approximately DM 15,000 (approx. 7,350 dollars, according to the exchange rate as of July 6, 2000) was also paid to each of 200,000 forced laborers.

In 1999, the Federal Constitutional Court of Germany held in a case where reparation for forced laborers is involved, that the state’s declaration of abandonment under international law cannot prevent an individual from exercising his/her right to request reparation or remove such a right.

(3) The United States as well, through the enactment of the Torture Victim Protection Act,providesaforumforinternationalhumanrightlitigationforthevictimsofhumanrightabusescommittedabroad,andtheU.S.courtsconsistentlyawardcompensatoryandpunitivedamageswhenapplicablefortheclaimsbasedontheAct.

The Alien Tort Statute, enacted in 2000, permits federal jurisdiction over suits by aliens, stipulating that “the district court sshall have original jurisdiction of any civil action by an alien for a tortonly, committed in violation of the law of nation sora treaty of the United States.” This provision was originally enacted as part of the Judiciary Act of 1789.

In Sosav.Alvarez-Machain decided in 2004, the Supreme Court, citing the Paquete Habana, authorized federal courts to apply at least part of the law of nations as a kind of federal common law and stated that for two centuries the Court has a ffirmed that the domestic law of the United States recognized international customary law. And the Court ruled that Section 1350 of the Alien Tort Statute provides practical effects to the common law which allows private cause of action for certain tort sin violation of international law, by allowing U.S. courts jurisdiction over tho selimited violations defined as prohibited under either the law so fnation sort reaties by the U.S.

I also would like to refer to the Korematsu case and its contemporary progeny, as one of the notable cases in which the U.S. court deliver same ssage of judicial regret for the shame ful history during WorldWarII. As you all know well, in Korematsuv. United States, the Supreme Court, in a 6 to 3 decision, up held the Executive Order which or dered Japanese Americans into internment campsre gardless of the ir citizen ship in 1944, holding that the nation’s security concern sover weighed the Constitution’s promise of equal rights. But after 40 years since the first decision, Korematsu’s conviction for evadinginternment was eventually over turned in 1984 by the federal district court based on newly found evidences. And the Civil Liberties Act of 1988 contained a formal apology as well as provisions form one taryreparation.

(4) In 2001, the International Commission on Intervention and State Sovereignty developed the concept of “state’s responsibility to protect” in its report, The Responsibility to Protect. The central theme was “the idea that as over eignnation has a responsibility to protect their own citizens from avoidable cat as trophe such a smass murder, rape, and starvation.”

Regarding the state’s right to provide diplomatic protection, the Constitutional Court of the Republic of South Africa held, in its decision of year 2004, that “the government has an obligation to provide diplomatic protection to its citizens to prevent or repair egregious breaches of international human rights norms. Where the government were, contrary to its constitutional duty, to refuse to consider whether to exercise diplomatic protection, it would be appropriate for the Constitutional Court to make a mandatory order directing the government to give due consideration to the request (KaundaandOthersv.PresidentoftheRepublicofSouthAfrica,caseCCT23/04.2004(10)BCLR1009,reprintedIN44IML173(2005)).”

Chapter 5. Conclusion

As elaborated before, the Korean Constitutional Court clearly stated that the Korean government’s omission to act on behalf of the comfort women is unconstitutional, as the action or inaction of the Japanese government is not an issue in this case. I hope this case will be a good introduction to the Korean Constitutional Court and its adjudication system.

In addition to the Court’s rationale, which held clearly that the state’s duty to pursue the dispute settlement procedure following Article 3 of the Agreement should rest upon the Korean government, the ruling is very meaningful as it touches upon many aspects such as the universal nature of human rights, the state’s duty to protect its own people’s fundamental rights, in particular afflicted women’s fundamental rights.
The U.S. Supreme Court, since its first judicial review case in 1803, has been making important decisions that protect fundamental rights such as freedom of expression, rights to privacy and equal protection. I have learned that many lawyers have been striving for human rights protection, and I also firmly believe that HLS students here like you will be the leaders who play vital roles in guaranteeing fundamental rights at home and abroad.

Quoting the phrase by a Korean historian, Chae-Ho Shin, “A people that is oblivious of past history has no future,” I would like to emphasize that the international community as a whole should cooperate to prevent such a tragic history of human right abuse from being repeated.

I also promise that the Constitutional Court of Korea will also make continuous efforts to guarantee people’s fundamental rights and promote the rule of law through international cooperation.

Thank you for listening.

< Closing >

Thank you for your interest and insightful questions.
I would love to continue our discussion, but it seems we don't have that much time.

Before closing, I’d like to quote the words of German Chancellor Angela Merkel, at an exhibition in Berlin to commemorate eight decades since Hitler became chancellor.
She said, "Human rights don't assert themselves. Freedom doesn't preserve itself all alone and democracy doesn't succeed by itself." This is a good reminder that human rights, freedom, and democracy cannot be taken for granted.
As I have shared with you today some of the human rights issues that are still ongoing, I hope that all of you, who will be the future leaders of this world, will join us in the efforts to achieve the common values of humanity and human rights advancements.

If any of you are interested in learning more about the comfort women case and constitutional adjudication in Korea,
we can offer more detailed information through Research Officer Seong Hee Lim, who helped me with translation during my talk today.

I wish you all the best in your future!
Thank you.
 

The 1996 report of the Special Rapporteur, Ms. Radhika Coomaraswamy, provided detailed explanation on the historical background of the establishment of “comfort stations”, recruitment of military sexual slaves and conditions in the comfort stations (E/CN.4/1996/53/Add.14).

See also, Myung Hye Kim, Thosewhousedtobe“comfortwomen”narration,memories,experience,partialstory,37-2KoreanCulturalAnthropology,at5(2004);MyungsookYoon,Japaneserecognitionof“comfortwomen”issue-focusingonthe1990s,ResearchinKorea-Japanrelationship,at100;SeungwooLee,Requestforcompensationbycomfortwomen,39JournalofNortheastAsiaHistoryat274-275.

Yohei Kono, Chief Cabinet Secretary, Statement on the Result of the Study on the Issue of "Comfort Women" (August 4, 1993) , availableathttp://www.mofa.go.jr/policy/women/fund/state9308html.

Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation Between Japan and the Republic of Korea (1965, Treaty No.172)

On November 16, 1990, the “Korean Council for Women drafted for Military Sexual Slavery by Japan” was established and started working on confirming the facts; On August 14, 1991 there was the first press conference and public testimony from a victim, Haksoon Kim, which led to the filing of claims against Japan.

Siwhan Do, Current Situation of Comfort Women Issue and Reexamining International Human Rights Law, 53-3 Journal of International Law; JangheeLee, Reexamining the Comfort Women Problem and the Agreement between Japan and the Republic of Korea, Prospect of Legal Solution on Comfort Women Issueat 99-122.

Gay J. McDougall, Final Report on System atic Rape, Sexual Slavery and Slavery like Practices during Armed Conflict(1998)(E/CN.4/Sub.2/1998/13).

Mayor of Osaka and co-leader of the nationalist Japan Restoration Party, Tōru Has him o to was reported to have said  "No evidence sex slaves were taken by military ", The Japan Times,August23,2012.

The Korean government announced as such in a press release, “Government to Hold a Joint Committee with NGOs on Follow-up Measures upon Disclosure of Documents of 1965 Korean-Japanese Government Meeting”, dated August 26, 2005.

Shinzō Abe,theprimeministeratthetime,statedonMarch1,2007,thattherewasnoevidencethattheJapanesegovernmenthadkeptsexslaves.OnMarch27theJapaneseparliamentissuedanofficialapology.

Radhika Coomaraswamy, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences in Accordance with Commission on Human Rights Resolution 1994/45 (1995) (E/CN.4/1996/53/Add.1).
I. Definition
8. The Special Rapporteur, however, holds the opinion that the practice of "comfort women" should be considered a clear case of sexual slavery and a slavery-like practice in accordance with the approach adopted by relevant international human rights bodies and mechanisms.

Gay J. McDougall, Final Report on Systematic Rape, Sexual Slavery and Slavery like Practices during Armed Conflict (1998) (E/CN.4/Sub.2/1998/13).
D. Status of Korea
30. Japan is not exempt from liability even under these circumstances. As set forth above, prohibitions concerning slavery are not based solely on war crimes. Both as a customary international crime applicable in wartime and peacetime and as a crime against humanity, these acts were clearly prohibited as egregious violations of customary international law regardless of the territorial status of the Korean peninsula at the time that the offences were committed. As a result, these norms apply equally to Korean women, whether or not they were civilians in an occupied territory.

In 1945, at the initiative of the United States, the general Assembly of the United Nations affirmed unanimously the principles of International law recognized by the “Charter of the Nuremberg Tribunal.” In 1950, the International Law Commission formulated the Principles of Nuremberg.

Nuremberg Principles
Principle VI. The crimes hereinafter set out are punishable as crimes under international law:
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Each of four Geneva Conventions of August 12, 1949 contains a grave breaches section, reflecting the different subjects of each convention.
For example, Article 50 of the 1949 Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I) stipulates the following:
Article 50 Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

ILO Convention 29, Forced Labor Convention (1930)
Article 2 (1) For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

Convention on the Non Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (G.A. res. 2391 (XXIII), annex, 23 U.N. GAOR Supp. (No. 18) at 40, U.N. Doc. A/7218 (1968), Nov. 11, 1970.)

BVerfG, Beschluss v. 13.5. 1996, 2BvL33/93.

28 U.S.C. §1350 (1992).

28 U.S.C. §1350 (2000) (providing that “the district court shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”).

542 U.S. 692 (2004).

323 U.S. 214 (1944).

Korematsuv.U.S.,584F.Supp.1406(N.D.Cal.1984).

50 App. U.S.C. § 1989 (1988).

Carseten Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?, American Journal of International Law, Vol. 101, No.1(Jan2007).