2023년 국제법 중요판례평석

Two judgments on State immunity can be cited as major international law cases in 2023. One is the judgment rendered by the Supreme Court on the relationship between diplomatic immunity and State immunity, and the other is the Seoul High Court’s ruling on the so-called ‘territorial tort exception’ to State immunity. The first judgment includes a decision on jurisdiction of the forum State in a case in which the owner of the adjacent land claimed that the State of Mongol remove the building, deliver the land, and return the unjust enrichment equivalent to the rent on account of alleged trespass of the premises of the Mongolian Embassy in Korea upon the adjacent land. In the judgment, the Supreme Court rules that the question of immunity from jurisdiction in the case is a matter of State immunity, not of diplomatic immunity, and that the claims for the return of unjust enrichment are not subject to immunity because it would not likely to hinder the Mongolian Embassy’s performance of its duties. The second judgment includes a decision on State immunity in a case in which victims of the “Japanese military sexual slavery” claim damages against the State of Japan, to the effect that the State of Japan shall not enjoy jurisdictional immunity in the case. Both judgments would be considered as Korean practice on the question of State immunity, but it is also worth noting that the Canadian practice cited in the second judgment might be viewed as “judicial countermeasures”