Making of International Law in Korea

Seokwoo Lee, D.Phil. (2001), Oxford, is Professor of Public International Law at Inha University Law School, Incheon, Korea. He is Founding Co-Editor-in-Chief of the Asia-Pacific Journal of Ocean Law and Policy (APJOLP).Hee Eun Lee, J.D., LL.M. (1999, 2002), Syracuse University and New York University, is Associate Dean and Professor of Law at Handong International Law School. He is Executive Editor of the Asian Yearbook of International Law.

"The book will be of great use and interest to students, researchers, and practitioners in East Asian diplomacy, public international law, international relations, and decision-makers in need of a better understanding of the settlement of international disputes in East Asia, in particular among Korea, Japan, and China, and indeed the wider world."-Youngmin Seo, Ministry of Foreign Affairs, Korea

• AcknowledgmentsPrefaceChapter I: Korea’s Encounter with the Modern International Legal SystemI.Introduction1.1. International Order of East Asia in the Era of International Law: Acceptance and the Status of Korea in International Law1.2 Status of International Law in the Domestic Legal System of Korea1.3 Treaty Making in KoreaII.Conceptions of International Law2.1 Positivism in International LawIII.Historical Context of International Relations in Northeast Asia3.1 Brief Historical Context of International Relations in Northeast AsiaIV.Introduction of Western International Law4.1 Introduction of Western International Law into East AsiaJudicial DecisionsA. Treaties and International Agreements(1) Direct Application of TreatiesConstitutional Court [97 Heon-ba 65] Decision issued November 26, 1998.(2) Self-Executing TreatiesSupreme Court [96 Da 55877] Judgment issued March 26, 1999.(3) Effect of Treaties as Domestic Lawa.Constitutional Court [99 Heon-ma 139, 143, 156, 160 Consolidated] Decision issued March 21, 2001.b.Constitutional Court [2002 Heon-ma 611] Decision issued April 24, 2003.c.Constitutional Court [2000 Heon-ba 20] Decision issued September 27, 2001.(4) Precedence in the Application of Treaties as Lex SpecialisSupreme Court [82 Da-ka 1372] Judgment issued July 22, 1986.(5) Harmonious Interpretation of Domestic and International LawConstitutional Court [2004 Heon-ba 47] Decision issued April 24, 2008.(6) Whether Agreed Minutes is a TreatyConstitutional Court [99 Heon-ma 139, 142, 156, 160 Consolidated] Decision issued March 21, 2001.(7) Legal Nature of the Joint Statement of ROK-US Ministers of Foreign AffairsConstitutional Court [2006 Heon-ra 4] Decision issued March 27, 2008.B. International Customary Law(1) Application of International Customary LawSupreme Court [97 Da 39216] Judgment issued December 17, 1998.Chapter II: The Legacy and Impact of Japanese ColonialismI.IntroductionII.Annexation by Japan2.1The Legality of the 1910 Annexation of Korea by JapanIII.San Francisco Peace Treaty3.1The 1951 San Francisco Peace Treaty and Its Relevance to the Sovereignty over Dokdo3.2The San Francisco Peace Treaty with Japan of 1951 and Territorial Disputes in East AsiaIV.Colonial Claims against JapanA.1965 Korea-Japan Claims Settlement Agreement4.1The 1965 “Korea-Japan Claims Settlement Agreement” and Individuals’ Claims RightsB.Comfort Women and Forced Labor4.2Historical Issues between Korea and Japan and Judicial Activism: Focus on the Recent Decisions of the Korean Constitutional Court concerning Comfort Women and the Supreme Court Decision on Japanese Forced Labor4.3Historical Issues between Korea and Japan and Judicial Activism: Focus on the Recent Supreme Court Decision on Forced LaborC.Dokdo4.4The San Francisco Peace Treaty, International Law on Territorial Disputes, and Historical CriticismJudicial DecisionsA. Forced Labor Cases(1)Mitsubishi Heavy Industries (2009 Da 22549 Verdict, issued May 24, 2012 [Supreme Ct.]).(2)New Nippon Steel Corporation (2009 Da 68620 Verdict, issued May 24, 2012 [Supreme Ct.]).B. Comfort Women Case(1)Constitutionality of Nonfeasance under Article 3 of the Agreement between the Republic of Korea and Japan Concerning the Settlement of Problems in Regard to Property and Claims and Economic Cooperation (2006 Heonma 788 Decision, issued August 30, 2011 [Const. Ct.].Chapter III: International Legal Issues Arising from a Divided NationI.IntroductionII.Maritime Border2.1 The Maritime Boundaries of North Korea in the Yellow SeaIII.Maritime Conflicts3.1Lethal Maritime Conflicts between North and South Korea: Any Role for International Law?3.2The Cheonan Incident: A Perspective from International Law and PoliticsIV.Law of the Sea4.1North Korea and the Law of the SeaV.Safety of Navigation5.1Korea and the Safety of Navigation: Uncertainty Derived from Undefined FencesJudicial Decisions(1) Is the UN membership of ROK and DPRK a Mutual, Tacit Consent?Constitutional Court [95 Heon-ga 2] Decision issued October 4, 1996.(2) Legal Nature of the Inter-Korean Basic AgreementConstitutional Court [89 Heon-ma 240] Decision issued January 16, 1997.(3) Territorial Clause of the Constitution and the Status of North KoreaSupreme Court [90 Do 1451] Judgment issued September 25, 1990(4) Status of North Korea’s Military GovernmentMilitary Supreme Court [4281 Heong-sang 10] Judgment issued March 24, 1948.Chapter IV: The Development of the Law of the Sea in KoreaI.IntroductionII.Fisheries2.1Korean Response to Changes of the International Legal Framework for Fisheries in the Northeast Asian Seas2.2Fisheries in the East China Sea and the Issue of Law Enforcement in the EEZ: Korean Perspective2.3The Legal Assessment of the Illegal Fishing Activities of Chinese Fishing Vessels: A Focus on Detention of Foreign VesselsIII.Maritime Security and Safety3.1Korea’s Maritime Challenges and Priorities3.2The Legal Framework of Maritime Security in East Asia: A Comparative ViewIV.Maritime Cooperation4.1Protection of the Sea Lanes in the Jeju Waters and Maritime Cooperation in Northeast AsiaV.Maritime Boundaries5.1Intertemporal Law, Recent Judgments, and Territorial Disputes in Asia5.2Territorial Disputes and Delimitation Issues between Korea and Its Neighbors 5.3Maritime Delimitation and Joint Resource Development in the East China SeaVI.Piracy6.1Korea’s Maritime Challenges and Priorities – Piracy and Armed Robbery Against Ships6.2Republic of Korea v. ArayeJudicial Decisions(1) Judgment on the New Fisheries Agreement between Korea and JapanConstitutional Court [99 Heon-ma 139, 142, 156, 160 Consolidated] Decision issued Mar. 21, 2001.(2)Case concerning PiracyRepublic of Korea v. Araye (2011 Do 12927 Verdict, issued December 22, 2011 [Supreme Ct.]).Chapter V: Other International Legal Issues Affecting KoreaI.Migration1.1Korean-Chinese, Migrant Workers, Marriage Immigrant Women, and the Refugee ActII.Border between North Korea and China2.1Implications of the Border Regime between North Korea and ChinaIII.Gando3.1Analysis of Korea’s Claim of Sovereignty over Gando (Jiandao) Area in China under International LawIndex