The Development of International Law on State Immunity and the Need for the Legislation on Jurisdictional Immunities in Korea

The past does not remain in the past, but inevitably influences on the present. The judgment of a Chamber of the Seoul Central District Court in January 2021 is unprecedented in the judicial history of Korea, denying immunity to Japan for international crimes. In reverse, another Chamber of the Seoul Central District Court granted immunity to Japan in April. It looks that the latter Chamber erred the previous judgments by the Supreme Court of Korea and the Constitutional Court of Korea. The issue of sexual enslavement of Korean women during Japan’s colonial rule of the Korean Peninsula from 1932 to 1945 is at the heart of the judgments and has not been resolved yet. Therefore, the issue as to whether Japan may enjoy state immunity before the Korean courts is most likely to reappear. In this regard, judges need guidelines in making judgments about the issues of the past and such guidelines should take the form of law promulgated by the National Assembly of Korea. Although it is difficult to make legislation on jurisdictional immunities when the past atrocities are involved, it does not seem justified to leave the matter solely to the judges. It is right time to search for the ways to enact a law for a better future of Korea-Japan relations.