강행규범( Jus Cogens )과 일괄타결협정의 관점에서 본 청구권협정의 효력

The lump-sum agreement is the comprehensive settlement between sovereign States under which the respondent State pays a fixed sum to the claimant State, and the latter, generally through a national claims commission established pursuant to domestic legislation, adjudicates the separate claims and allocates a share of the fund to each successful claimant. Japan, with regard to 1965 Agreement, reiterates its stance that the agreement is a lump-sum agreement, so any claims by Korean nationals cannot be litigated due to the effect of 1965 Agreement. Meanwhile, Jus Cogens is the norm, the purpose of which is to protect the public order of international community, such as human dignity. Because of the fundamental values it contains, jus cogens is universal and non-derogable, having the highest status in the hierarchy of international law. It includes the prohibition against serious violations of international human rights law and humanitarian law, such as the prohibition against slave labor, sexual slavery, crimes against humanity, torture, war crimes etc. Based on its closeness and relatedness to humanity, the subject of human-related jus cogens is not a State but an individual, which is fundamentally different from the traditional notion of subject matter in international law. This article analyzes the legality of the lump-sum agreement through the lens of jus cogens and applies it to 1965 Agreement. It is now widely accepted as a customary international law that any treaty becomes void and terminates with the emergence of jus cogens which is in conflict with the treaty in a supervening manner. From that legal perspective, any lump-sum agreement concluded between two States, the crux of which is to extinguish all claims of a victim emanating from the breach of human-related jus cogens should be nullified with the emergence of the norm, because it is made by non-entitled States without any consent from the victim who is the sole subject of the norm. Thus, 1965 Agreement, even though we accept it is a lump-sum agreement, should be considered null and void in a supervening manner, because it was made by two countries without any consents from the victims of forced labor who suffered slavery and crimes against humanity, the prohibition against which emerged as human-related jus cogens after the agreement.