일본군위안부사건에 대한 헌법재판소 결정의 평석

Abstract

The constitutional court has concluded that the South Korean government has yet to exercise its rights of diplomatic protection against the Japanese government concerning the case of comfort women formerly drafted into Japanese armed forces under Japanese colonial rule. The South Korean government has argued that cash reparation aside, “diplomatic avenues” were taken to provoke the role of the Japanese government in establishing economic support and compensation,conducting extensive investigation, making official statement of apology and remorse, and ensuring an integration of accurate historical recount into the education system. However, the constitutional court has seen the claim as one-sided diplomatic proclamation rather than diplomatic action. It is the position of the constitutional court that our government’s failure to fulfill the responsibility to protect our constituents should be considered a violation of fundamental human rights held by the claimants and therefore unconstitutional. Despite the validity of the constitutional court’s conclusion, some aspects within its arguments are revealed as problematic. First, there is a lack of explanation on exactly which fundamental right has been under violation in regard to these comfort women. Second, a distinction between right to diplomatic protection as authority held by our government and right to diplomatic protection as demanded by the people remains unclear. Third, it can be confirmed from the court rulings that our government holds diplomatic responsibility to protect our constituents,but a logical deduction from such responsibility to people’s right to diplomatic protection is undemonstrated. Concerning this case, the constitutional court should have been more thorough in its reasoning based on theories of state responsibility to protect fundamental human rights. The court did affirm the state’s responsibility to protect fundamental rights in accordance to article 10 of the constitution; it also pointed out to relevant legal grounds provided by the Treaty on Basic Relations between Japan and the Republic of Korea (1965). Our government has then found grounds for diplomatic responsibility to protect, and evaluated whether its implementation adequately followed the anti-overrestriction principle. On the other hand,reasoning by the constitutional court has not fully demonstrated that the claimants’fundamental right or their right to diplomatic protection actually stems from such diplomatic responsibility to protect. In fact, the court’s conclusion has failed to indicate that the issue of drawing fundamental rights from state responsibility to protect fundamental rights is subject to the discretion of our government,and that fundamental rights can only be drawn when such discretionary power becomes non-extant.