The Making of International Law in Korea

From Colony to Asian Power

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The Republic of Korea was colonialized in the early 20th century, achieved its independence, and rose from the ashes of the Korean War to become an Asian power. Korea’s ascent coincides neatly with the advent of globalization and growing importance of international law in managing the increasing interactions between states and other non-state entities such as multinational corporations, non-governmental organizations, and international organizations like the United Nations.

The Making of International Law in Korea addresses the developments of international law in Korea from human rights concerns to law of the sea issues; from maritime delimitation and access to ocean resources to other non-security matters. Offered as a textbook for academics and students, the authors demonstrate the increasingly important role of international law in shaping international relations in Northeast Asia and Korea.

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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

Chapter I: Korea’s Encounter with the Modern International Legal System

I. Introduction
1.1. International Order of East Asia in the Era of International Law: Acceptance and the Status of Korea in International Law

1.2 Status of International Law in the Domestic Legal System of Korea

1.3 Treaty Making in Korea

II. Conceptions of International Law

2.1 Positivism in International Law

III. Historical Context of International Relations in Northeast Asia

3.1 Brief Historical Context of International Relations in Northeast Asia

IV. Introduction of Western International Law

4.1 Introduction of Western International Law into East Asia

Judicial Decisions

A. Treaties and International Agreements

(1) Direct Application of Treaties
Constitutional Court [97 Heon-ba 65] Decision issued November 26, 1998.

(2) Self-Executing Treaties
Supreme Court [96 Da 55877] Judgment issued March 26, 1999.

(3) Effect of Treaties as Domestic Law

a. 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 Specialis
Supreme Court [82 Da-ka 1372] Judgment issued July 22, 1986.

(5) Harmonious Interpretation of Domestic and International Law
Constitutional Court [2004 Heon-ba 47] Decision issued April 24, 2008.

(6) Whether Agreed Minutes is a Treaty
Constitutional 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 Affairs
Constitutional Court [2006 Heon-ra 4] Decision issued March 27, 2008.

B. International Customary Law

(1) Application of International Customary Law
Supreme Court [97 Da 39216] Judgment issued December 17, 1998.

Chapter II: The Legacy and Impact of Japanese Colonialism

I. Introduction

II. Annexation by Japan

2.1 The Legality of the 1910 Annexation of Korea by Japan

III. San Francisco Peace Treaty

3.1 The 1951 San Francisco Peace Treaty and Its Relevance to the Sovereignty over Dokdo

3.2 The San Francisco Peace Treaty with Japan of 1951 and Territorial Disputes in East Asia

IV. Colonial Claims against Japan

A. 1965 Korea-Japan Claims Settlement Agreement

4.1 The 1965 “Korea-Japan Claims Settlement Agreement” and Individuals’ Claims Rights

B. Comfort Women and Forced Labor

4.2 Historical 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 Labor
4.3 Historical Issues between Korea and Japan and Judicial Activism: Focus on the Recent Supreme Court Decision on Forced Labor

C. Dokdo

4.4 The San Francisco Peace Treaty, International Law on Territorial Disputes, and Historical Criticism

Judicial Decisions

A. 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 Nation

I. Introduction

II. Maritime Border

2.1 The Maritime Boundaries of North Korea in the Yellow Sea

III. Maritime Conflicts

3.1 Lethal Maritime Conflicts between North and South Korea: Any Role for International Law?

3.2 The Cheonan Incident: A Perspective from International Law and Politics

IV. Law of the Sea

4.1 North Korea and the Law of the Sea

V. Safety of Navigation

5.1 Korea and the Safety of Navigation: Uncertainty Derived from Undefined Fences

Judicial 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 Agreement
Constitutional Court [89 Heon-ma 240] Decision issued January 16, 1997.

(3) Territorial Clause of the Constitution and the Status of North Korea
Supreme Court [90 Do 1451] Judgment issued September 25, 1990

(4) Status of North Korea’s Military Government
Military Supreme Court [4281 Heong-sang 10] Judgment issued March 24, 1948.

Chapter IV: The Development of the Law of the Sea in Korea

I. Introduction

II. Fisheries

2.1 Korean Response to Changes of the International Legal Framework for Fisheries in the Northeast Asian Seas

2.2 Fisheries in the East China Sea and the Issue of Law Enforcement in the EEZ: Korean Perspective

2.3 The Legal Assessment of the Illegal Fishing Activities of Chinese Fishing Vessels: A Focus on Detention of Foreign Vessels

III. Maritime Security and Safety

3.1 Korea’s Maritime Challenges and Priorities

3.2 The Legal Framework of Maritime Security in East Asia: A Comparative View

IV. Maritime Cooperation

4.1 Protection of the Sea Lanes in the Jeju Waters and Maritime Cooperation in Northeast Asia

V. Maritime Boundaries

5.1 Intertemporal Law, Recent Judgments, and Territorial Disputes in Asia

5.2 Territorial Disputes and Delimitation Issues between Korea and Its Neighbors

5.3 Maritime Delimitation and Joint Resource Development in the East China Sea

VI. Piracy

6.1 Korea’s Maritime Challenges and Priorities – Piracy and Armed Robbery Against Ships

6.2 Republic of Korea v. Araye

Judicial Decisions

(1) Judgment on the New Fisheries Agreement between Korea and Japan
Constitutional Court [99 Heon-ma 139, 142, 156, 160 Consolidated] Decision issued Mar. 21, 2001.

(2) Case concerning Piracy
Republic of Korea v. Araye (2011 Do 12927 Verdict, issued December 22, 2011 [Supreme Ct.]).

Chapter V: Other International Legal Issues Affecting Korea

I. Migration

1.1 Korean-Chinese, Migrant Workers, Marriage Immigrant Women, and the Refugee Act

II. Border between North Korea and China

2.1 Implications of the Border Regime between North Korea and China

III. Gando

3.1 Analysis of Korea’s Claim of Sovereignty over Gando (Jiandao) Area in China under International Law

All interested in the history, development, and impact of international law in Korea.
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