일본군 ‘위안부’ 관련 2011년 헌법재판소 결정과 2015년 한일정부 간 합의의 관계: 외교적보호권의 관점에서

Since early 1990s when the so-called “Comfort Women” issue was first brought up in the public, the Korean government seemed to have understood internally that the issue had already been addressed by the so-called Claims Treaty concluded in 1965 between Korea and Japan, the understanding which discouraged the government from invoking responsibility against Japan through diplomatic protection. In 2005, the Korean government officially demonstrated that the Comfort Women issue was not covered by the 1965 Claims Treaty and showed its intention to invoke responsibility against Japan. However, the government did not actually implement diplomatic protection measures and this ommission provided a critical reason for the Constitutional Court to find the ommission unconstitutional. Although officially the Constitutional Court found that the government should have resolved discrepancy in the interpretation of article 2 of the 1965 Claims Treaty, it substantially confirmed that the government should invoke responsibility against Japan through diplomatic protection. Following the decision of the Constitutional Court, the government took unprecedentedly vigorous measures and ended up with a political agreement in December 2015. The fact that the Japanese government explicitly acknowledged its responsibility in the intergovernmental agreement implied that the Korean government could have invoked responsibility against Japan in the course of negotiation and thereby had implemented the substantial intent of the decision.