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일본군 위안부` 문제가 인도주의 문제인가? -한·일 정부의 최근 입장에 대하여-
조시현 ( Si Hyun Cho ) 민주주의법학연구회 2012 민주법학 Vol.0 No.49
Since the last year`s decision of the Korean Constitutional Court, the Japanese military ``comfort women`` issue has been touched upon in a series of summit meetings between South Korea and Japan. While the Japanese government mentioned a solution based upon humanitarianism on the supposed premise of the denial of legal responsibility, the Korean President characterized the issue similarly as a humanitarian problem. The latter`s attitude seems to coincide with the former in the basic approach to the issue. In order to examine the concrete meaning of the idea of a humanitarian solution to the issue, this article starts with a discussion on the relationship between humanitarianism and law in general, and particularly international law. From the Korean victims` perspective, it then raises such questions as whether the issue is of a humanitarian character, what specific measures may be thought of for a humanitarian solution, and whether this type of solution excludes a legal process. Humanitarianism and law overlap at some times, and the former may take the fore at others - even so, they are not mutually exclusive. Even if the sufferings of victims are centralized, the nature of the issue requires not merely a humanitarian response, but remedies for the violations of human rights. Any solution on the matter must include the following points: from the international legal point of view, ``comfort women`` are both the victims of war crimes and crimes against humanity, and the holders of the right to reparation; the issue has also social (including individual national societies and the international community) and historical implications for the settling of the past in each national and the international community.
조시현 ( Si Hyun Cho ) 법과사회이론학회 2014 법과 사회 Vol.0 No.46
he trafficking issue poses a number of problems to the Korean society without exception, ranging from the Japanese military ‘comfort women’ issue to migrant sex trafficking. In an effort to fill the gap in the academic researches, this article examines the main features and trends in the development of international trafficking law with reference to a series of international treaties, starting from the 1904 White Slave Traffic Agreement up to the 2000 Trafficking Protocol. In the late nineteenth century, encouraged particularly by the abolition of slavery and slave trade, various social and women`s movements raised the problem of prostitution/sex trade as one revolving around sex, sexuality, class, State and race. In Britain, for instance, the success in the elimination of the State regulation on prostitution led to the organization of international campaigns concerning the cross-border movement of prostitutes, the so-called ‘white slavery’. The eventual conclusion of the 1904 Agreement and the 1910 Convention on white slave traffic had been followed by yet other treaties during the League of Nations period, now with a new name ‘traffic in women and children’ given to the issue. These international treaties set up an international mechanism for cooperation among States to suppress trafficking by means of information sharing, criminalization under national laws, judicial assistance, control over recruitment agencies and national boundaries among others, while providing victims with support for repatriation. Yet the question of prostitution itself had been left for domestic legislation of each contracting State, becoming a source of intense controversy even today. Subsequently, the 1949 UN Convention prohibited exploitation of prostitution and forced prostitution as well as trafficking in every human being. While the 1949 Convention was not taken generally as a real success in terms of the fight against trafficking, the human rights based approach to the issue has been particularly noticeable in its aftermath. Moreover, the resurgence of interest on the issue in the post-cold period and in the midst of globalization led to the adoption of the Trafficking Protocol in 2000. While the Protocol consolidates the previous international treaties and represents a renewed effort to prevent and prosecute trafficking and to protect its victims, the relationship between prostitution and trafficking, and the boundaries between trafficking and slavery, forced labor and other related concepts continue to present challenges in the legal response to the problem.
조시현 ( Si Hyun Cho ) 민주주의법학연구회 2012 민주법학 Vol.0 No.48
In a decision of August 30th, 2011, the Korean Constitutional Court found unconstitutional the inaction of the Ministry of Foreign Affairs and Commerce in a constitutional complaint case filed by the victims of the Japanese Military ``Comfort Station`` system. The Court held that, with respect to the question whether the rights of complainants were extinguished under the 1965 Agreement on the Settlement of Problems Concerning Property and Claims and Economic Cooperation, there existed a dispute on the interpretation of its provisions between South Korea and Japan. The failure to resort to the procedures provided by the Agreement for resolving this dispute was found in violation of basic rights of former ``comfort women`` as guaranteed under the Constitutional Law. In a follow-up to this decision, the Korean government took measures initiating a diplomatic negotiation process with the Japanese government concerning the above dispute. In case this is not forthcoming, the Korean government is said to be weighing up the possibility to move on to the next stage, the institution of arbitration proceedings under Article 3 of the Agreement. As this arbitral process will definitely affect the outcome of the the ``comfort women`` issue, this Article tries to examine the meaning and the context of international arbitration between Korea and Japan. After examining the possible problems likely to arise from a procedural point of view, it considers the pros and cons of the use of arbitration in the present circumstances. In particular, it points out the necessity of further negotiations and additional agreements on the arbitral procedure itself, which may delay the final award considerably, reinforcing skeptical views in the light of the advanced age of victims and the resultant urgency of solving the issue. It also argues that the dispute to be submitted to arbitration should not be formulated narrowly to the question whether the rights of ``comfort women`` are ``settled completely and finally`` by the Settlement Agreement, but should be posed in a substantive manner to solve the issue positively in the light of victims` human rights to seek redress. The expected international arbitration concerning Korean ``comfort women``, which would be the first international litigation between regional States in history, is hoped to provide impetus to the establishment of a system for peace and human rights in East Asia.