Immunity of States from Jurisdiction

Sovereign/State Immunity

Decisions of Seoul District Court on Damage Claims by the Japanese Comfort Women Victims (Seoul District Court Decision 2016Ga-Hap505092 decided on 8 January 2021 and Seoul District Court Decision 2016Ga-Hap580239 decided on 21 April 2021)

It is interesting to note that within three months, the same court consisting of different benches has rendered an opposing decision whether Japan enjoys sovereign immunity over the mobilization of the comfort women and operation of comfort stations by Imperial Japan. Whereas one rejected applying the state immunity doctrine and ordered the defendant to pay compensation for damages, the other resorted to the principle of state immunity leading to a dismissal of the case. The plaintiffs had been forcefully recruited as comfort women by Imperial Japan during the war of aggression, confined in comfort stations, and exposed to constant violence, torture, and sexual assaults. Having inflicted grave physical and psychological damages, the plaintiffs claimed that Japan, the successor of Imperial Japan, should pay compensation.

Both benches began by assessing customary international law on state immunity as neither Korean laws nor international treaties on state immunity entered into force by Korea exists. The benches agreed that the contested acts are not essentially acta jure gestionis. However, the January and April rulings were divided into two major issues: whether the acts committed by Imperial Japan constituted an exception to the rule and whether the acts were conducted during an armed conflict.

The January bench determined that the acts were not conducted during an armed conflict and constituted an exception to the rule. Regarding the procedural aspect of the law of state immunity, the January ruling seems to counter the jurisprudence established in the Jurisdictional Immunities of the State case in which the ICJ distanced the procedural aspect of the law of immunity from the substantive rule. (para. 58) The court explained that state immunity is in regard to procedural requirements as it is a theory applied to determine jurisdiction before assessing merits. It, however, viewed that procedural rule ought to be construed to the effect that it best realizes the rights and status under the substantive rule. The court explained that procedural rule may at times, limit the realization of rights under the substantive rule to a certain degree and that such substantive rights and legal order should neither become non-existent nor distorted. In other words, the court viewed that the procedural nature of the law of state immunity cannot be separated from the substance of the matter in question. See also Supreme Court en banc Decision 2015Da232316, decided on 18 October 2018.

Having assessed the international trend over state immunity, the court confirmed that customary international law does not exempt all acts conducted by a state from the jurisdiction without exceptions. Specifically, even if the contested acts are sovereign in nature, the court determined that it can exercise jurisdiction since the defendant is not subject to state immunity. It is because acts of systemic mobilization of comfort women and comfort women stations violate international jus cogens norms, falling under the exception to the rule. The court did not deny that states enjoy immunity for acts conducted during armed conflict. Yet, the court found it difficult to conclude that Imperial Japan’s deceit and abduction of the Plaintiffs in mobilizing them as comfort women had been conducted during an armed conflict since the battlefronts of the Asia-Pacific War did not include the Korean Peninsula.

In sum, the court ruled that it had met the jurisdictional requirements for the court to exercise jurisdiction over the case. Furthermore, having reviewed the merits, the court recognized that the recruitment of comfort women and operation of comfort women stations violated the following international law: the Hague Convention IV (annex to the Convention: Regulations Respecting the Laws and Customs of War on Land-Section III: Military Authority over the Territory of the Hostile State-Regulations Article 46 reads as follows: Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected), International Convention for the Suppression of the Traffic in Women and Children (this is in line with Article 2 of the International Convention for the Suppression of the White Slave Traffic which stipulates that any person who, to gratify the passions of others, has by fraud or by the use of violence, threats, abuse of authority, or any other means of constraint, hired, abducted or enticed a woman or a girl of full age for immoral purposes, even when the various acts which together constitute the offence were committed in different countries, shall also be punished), Convention to Suppress the Slave Trade and Slavery (referring to the Special Rapporteur Gay J. McDougall Report of the UN Sub-Commission on the Promotion and Protection of Human Rights in which comfort women have been described equivalent to sex slaves, the court viewed mobilization of comfort women in violation of the provision on the abolition of slavery under the League of Nations’ Slavery Convention) and International Labor Organization Forced Labor Convention (No. 29). Accordingly, it upheld that Japan is obligated to pay reparations for psychological damages caused by the illegal acts of Imperial Japan unless otherwise specified. Overall, the January decision highlighted that the doctrine of state immunity must not be used to allow states that violated peremptory norms to inflict severe damages on individuals of other states to evade reparations.

On the other hand, the April bench decided that the defendant enjoys sovereign immunity, considering international human rights treaties, the Korean Constitution, and international customary law, citing the legal reasoning of the ICJ in the Jurisdictional Immunities of the State case in 2012. First, the court held the mobilization of the plaintiffs as comfort women qualify as “illegal acts within the territory of the forum state during armed conflict” by reiterating the conditions set forth by the ICJ regarding acts committed in the course of conducting an armed conflict. While the defendant’s recruitment of comfort women had taken place within the territory of Korea, the court noted that it was designed to preserve the combat power of the Japanese Imperial army to relieve their sexual desires and prevent sexually transmitted diseases. Furthermore, it maintained that a crystallized general practice has not yet been established, denying state immunity for sovereign acts, which are illegally committed in the territory of the forum state.

Second, regarding whether jus cogens exception to the state immunity is granted for severe human rights violations, the court maintained the position of the ICJ. The seriousness of the breach and the degree of damage cannot be considered a criterion for judging the existence of jurisdiction. It emphasized that the procedural rule of State immunity does not conflict with the substantive law of human rights as ICJ did in the Jurisdictional Immunities of the State case.

The principle of state immunity is neither permanent nor absolute, and it has been revised continuously following the changes in international order over the years. However, the Apil ruling explicitly referred to the Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation Between the Republic of Korea and Japan (hereinafter “the 1965 Claims Agreement”) and the 2015 Agreement on the Japanese Military “Comfort Women” Issue (hereinafter “the 2015 Comfort Women Agreement”). The court then clearly stated that it does not see itself as being able to resolve the issue of forced sex slavery committed by another sovereign state. The rationale is that highly sensitive political matters should fall under the purview of the executive and legislative branches of the government according to relevant constitutional provisions. Therefore, it is not appropriate for an unelected judiciary to review the legitimacy of measures taken regarding those matters. The court’s decision seems to align with the doctrine of judicial self-restraint. Yet despite the rapid development of international human rights law, it admitted that international law is, unfortunately still state-centric.

* In its merits, ICJ ruled that state practice in the form of judicial decisions supports the proposition that state immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a state in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State. That practice is accompanied by opinio juris, as demonstrated by the positions taken by states and the jurisprudence of a number of national courts, which have made clear that they considered that customary international law required immunity. The almost complete absence of contrary jurisprudence is also significant, as is the absence of any statements by states in connection with the work of the International Law Commission regarding state immunity and the adoption of the United Nations Convention or, so far as the court has been able to discover, in any other context asserting that customary international law does not require immunity in such cases. In light of the foregoing, the court considers that customary international law continues to require that a state be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, paras. 77–78. (emphasis added)

Remedies & Specific Cases (Japan’s Wartime Korean Forced Labor Compensation Case)

State Responsibility

Decision of Supreme Court on Damage Claims (Supreme Court Decision 2021Ma5961 decided on 10 September 2021)

The Supreme Court overruled the re-appeal by the Complainant, Mitsubishi Heavy Industries, where their assets were seized after the judgment had been made final on the damage claims by the Korean victims of forced labor by Imperial Japan. The Complainant argued that the contested matter should be resolved through deliberation by the Conciliation Committee established according to Article III of the 1965 Claims Agreement. But instead, the court decided the order of seizure, depriving the Complainant’s right to request the Conciliation Committee for interim measures either suspending or restricting the compulsory execution of the assets. Therefore, the Complainant claimed that the enforcement measures go against the principle of good faith or equity, and as a result, their assets should not be executed.

However, the court decided that the argument could not be upheld either as a ground of disapproval of the execution order or as a legal obstacle for enforcement. It reaffirmed that there is no error in the judgment rendered by the lower court in light of the relevant legal principles and laws applied.

Treatment of International Law by Domestic Courts – Treaties

Relationship between International & Domestic Law

Decision of Seoul District Court on Damage Claims (Seoul District Court Decision 2020GaDan5268428 decided on 23 April 2021)

In August 2019, Pan-Pacific Airlines notified a departure delay to the Plaintiffs waiting to be on board the plane expected to leave Mactan-Cebu International Airport at 11 PM and arrive at Incheon International Airport a day after at 5 AM Not being able to get on board the plane, the Plaintiffs moved to an accommodation provided by the airline at 5 AM, a day after the delay. Accordingly, the Plaintiffs departed by a different flight, 13 ~ 27 hours delayed from the expected scheduled time, and requested the airlines to pay compensation for damages.

The Court ruled that the Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal on May 1999 (hereafter, “the Montreal Convention”) prevails over domestic laws of the Republic of Korea since both the country of arrival and departure are State Parties to the Montreal Convention. Therefore, it found that the Defendant is liable to pay compensation for damages under Article 19 of the Montreal Convention because the Plaintiffs departed later than the expected departure time. The airline challenged the admissibility, claiming that the Court does not have jurisdiction over the case. But, the Court affirmed jurisdiction since the Plaintiffs claimed to ‘the court at the place of destination’ provided under Article 33 of the Montreal Convention.

* The Montreal Convention came into force in 2007 in the Republic of Korea and in 2015 in the Philippines. Article 19 (Delay) stipulates that “the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.” Article 33 (Jurisdiction) stipulates that “1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.”

Application of Treaties to the State

Treaties

Decision of Constitutional Court on a Constitutional Complaint: a Case of Inaction to Settle the Dispute under Article III of the 1965 Claims Agreement (Constitutional Court of Korea Decision 2014HunMa888 decided on 31 August 2021)

The decision was made available only after seven years since the Complainants made a constitutional complaint arguing that the inaction of the Korean government to settle the matters of the Korean war criminals is unconstitutional. The Complainants are individuals who, after the Pacific War broke out during the Japanese occupation of Korea, were forcibly recruited and served as a guard of Allied detainees at a prisoner-of-war camp in a Southeast Asian country. Following the end of the war, they were prosecuted and punished as Class B and Class C war criminals (hereinafter “Korean B/C War Criminal”) in a war crimes trial convened by the Allied powers. The family members of the deceased Korean B/C War Criminals also have joined the complaint. Most Korean B/C war criminals have not received compensation from the Japanese government since they lost their Japanese nationality following the Treaty of Peace with Japan (also known as the San Francisco Peace Treaty).

The court found it difficult to consider the issue of Korean B/C War Criminals’ damage claims as the same as the issue of the compensation claims held by comfort women, atomic bomb victims, or others. The damage claims of the Korean B/C War Criminals are the result of enforcing an international judgment. It is not subject to the 1965 Claims Agreement. Yet, the court did acknowledge the regrettable fact that Korean B/C War Criminals were forcibly recruited as prisoner-of-war guards of the Allied detainees under the command of the Imperial Japanese military. It also recognized that those War Criminals were prosecuted before international war crimes tribunals and sentenced to punishments for absence of proper assistance.

Also, the court noted that Korea actively incorporated international customary and treaty law into domestic law, requiring the punishment of individuals committing any crimes of aggression, crimes against humanity, or war crimes to be imposed through an international war crimes trial. Furthermore, it also enacted and put into effect the “Act on Punishment, etc. of Crimes under Jurisdiction of the International Criminal Court.” Taking these facts together, the court explained that all domestic state agencies of the Respondent should respect the international law status of international war crimes tribunals and the effect of their judgments. Accordingly, as to Korean B/C War Criminals’ damage arising from the punishments following the international war crimes trials, the court did not uphold that the Respondent had a concrete duty to take the dispute settlement procedures pursuant to Article 3 of the 1965 Claims Agreement. In other words, the complaint is non-justiciable concerning such damage.

Next, the court found it unclear whether there was an actual dispute between Korea and Japan over the interpretation of the 1965 Claims Agreement concerning Japan’s responsibility for Korean B/C War Criminals’ damage arising from the forced recruitment by Imperial Japan. Even if a dispute over the interpretation of the 1965 Claims Agreement does exist between Korea and Japan concerning Japan’s responsibility for such damages, it cannot be said that Respondent has failed to fulfill its duty derived from Article 3 of the 1965 Claims Agreement. It is because of Respondent’s diplomatic discretion and its constant demands to Japan through diplomatic channels, including those for general settlement and damages on the issues concerned.

In their dissenting opinion, four justices contended that Respondent’s failure to take the dispute settlement procedures in Article 3 of the 1965 Claims Agreement is unconstitutional. They noted that Korean B/C War Criminals, acknowledged as “victims or casualties of forced recruitment” by the truth commission established under a Truth-Seeking Act, are entitled to claims against Japan. In terms of their nature, such claims are not as essentially different from the claims for the damage by survivors of comfort women and forced labor.

Interpretation of Treaties

Decision of Constitutional Court on a Constitutional Complaint (Constitutional Court of Korea Decision 2016HunMa1034 decided on 30 September 2021)

The Complainants are the victims and families identified through a truth-seeking procedure under the Framework Act on Settling Past History for Truth and Reconciliation (hereinafter “the Truth and Reconciliation Act”). They argued that the Minister of the Interior and Safety and the Minister of Justice failed to carry out their duty to recover the victims’ dignity and recommend reconciliation between the victims and the perpetrators. The Complainants claimed that such failure led to an infringement of their rights to effective remedy guaranteed under the Convention against Torture. Furthermore, it constitutes inaction of the Respondents.

Dismissing the case, the court explained that a specific human right for individuals to seek damage claims directly against the State Party in the absence of a legislative procedure could not be derived from Article 14 of the Convention. However, Article 14 (1) stipulates that “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.” The court found it difficult to interpret this Article as clearly entitling individuals to seek remedies without any domestic legislative procedure. Also, Article 14 (2) reads that “Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.” In other words, such compensation can only be understood as being made through a regulation consistent with the domestic legal system. Therefore, the court held that neither an individual’s right to seek remedy against the State Party nor a concrete obligation to compensate for the damages claims brought by the Complainant be derived directly from the Convention against Torture.

Specific Bilateral Relations Issues (Inter-Korean Relations)

International Relations & Cooperation

Decision of Constitutional Court on a Constitutional Complaint (Constitutional Court Decision 2016Hun-Ma364 decided on 27 January 2022)

The Complainants argued that their fundamental property rights ensured in the Constitution had been infringed due to the Respondents’ decisions. The decisions in question have been made in line with the fourth nuclear test and the long-range missile launch conducted by North Korea earlier in 2016. Accordingly, North Korea stopped all cooperative joint projects, deported people residing in the Complex, and froze the asset of Korean enterprises.

In a unanimous decision, the Court rejected the complaint made by some Complainants, who were enterprises that invested in the Kaesong Industrial Complex, against a series of acts decided by the Respondents that led to a complete shutdown of the operation of the industrial complex. Such acts included the decision of the President of Korea to shut down its operation completely, and the formulation of a plan by the Unification Minister for withdrawal from the industrial complex and his notification to the relevant businesspersons, the release of a statement declaring a complete shutdown of the industrial complex, and enforcing the decision. The key question addressed in the case was whether the Respondents’ decision to shut down the Kaesong Industrial Complex entirely had infringed the fundamental rights of the Complainants. The Constitutional Court dismissed the complaint brought by the cooperative enterprises as the shutdown decision was not directly relatable to their fundamental rights. Specifically, the Court held that the Respondent’s decisions do not directly apply to the enterprises in a cooperative relationship with those directly invested in the Kaesong Industrial Complex. It further explained that even if damages such as a reduction in operating income were inflicted, it could not be construed as a direct effect caused by the decision but because of the indirect economic ties with the enterprises to which the decisions were directly applied.

The Court acknowledged that the shutdown decision, adopted as a countermeasure in response to the critical situation posed by North Korea’s nuclear weapon development, was highly political and included a decision of the President on national security matters. Despite the nature of the act, fundamental rights such as freedom of business have been restricted due to the decision, and such restrictions would be in violation of the Constitution unless grounded on the Constitution and Act. However, the Court decided that the shutdown measure is in accordance with Article 18(1)(2) of the Inter-Korean Exchange and Cooperation Act and was adopted to contribute to the maintenance of international peace and security, referring to the Security Council resolutions that adopted economic measures and further calling upon North Korea to stop nuclear weapon development and experiments including UN Security Council Res. 1718 (2006); 1874 (2009); 2087 (2013) and 2094 (2013). Also, referring to the responsibilities and duties of the President provided by Article 66 of the Constitution and Article 11 of the Government Organization Act, the Court decided that the President has the power to decide to shut down the Kaesong Industrial Complex to counter North Korea on the grounds of national security and international cooperation. Accordingly, the Court rejected the Complaints of the enterprises invested in the complex since the restriction of rights is grounded in the Constitution and Act of Korea.

In short, the decision confirmed that even if the decision to shut down the Kaesong Industrial Complex completely was highly political, it should be based on the Constitution and Act if it were to restrict the people’s fundamental rights. However, at the same time, it approved that such a decision was consistent with Korean and international law.

* Article 18 (1)(2) (Orders for Adjustment for Cooperative Projects) of the Inter-Korean Exchange and Cooperation Act stipulates that “(1) The Minister of Unification may order a person who carries out a cooperative project to adjust any matter in relation to the details and conditions of the cooperative project or the period of validity for approval, etc. in cases falling under any of the following subparagraphs: Provided, That the Minister shall consult with the head of a relevant administrative agency in advance if deemed important: 2. Where it is necessary to contribute to international agreements for the purposes of maintaining international peace and security.”

* Article 66 (2) and (3) of the Constitution of Korea provides that “The President shall have the responsibility and duty to safeguard the independence, territorial integrity and continuity of the State and the Constitution, and shall have the duty to pursue sincerely the peaceful unification of the homeland.”

* Article 11 (President’s Administrative Supervisory Authority) of the Government Organization Act stipulates that “The President as the head of the Government shall direct and supervise the heads of all central administrative agencies, as prescribed by statutes.”

Environmental Protection through Law/Regulation

International Environmental Law

Framework Act On Carbon Neutrality and Green Growth for Coping with Climate Crisis (Act No. 18469)

The Framework Act was enacted on 24 September 2021 and entered into force on 25 March 2022. The purpose of this Act is to strengthen policy measures to reduce greenhouse gases and adapt to climate change to prevent serious impacts of the climate crisis, thereby protecting the ecosystem and contributing to the sustainable development of the international community. In the same vein, the Act requires the government to cut its greenhouse gas emissions in 2030 by 35% or more from the 2018 levels and consists of several policy measures to achieve carbon neutrality by 2050 (chapter 2). In addition, the Act establishes the national carbon-neutral green growth master plan (chapter 3), the 2050 Carbon Neutral Green Growth Committee (chapter 4), and the Climate Response Fund (Chapter 10). With the adoption of this Act, Korea becomes the 14th country in the world to make 2050 carbon neutrality implementation into law.

Implementation of Human Rights Treaties

Human Rights

Decision of Supreme Court on Permission for Adoption of a Minor Child (Supreme Court en banc Order 2018Seu5 ordered on 23 December 2021)

Major issues of this decision were whether grandparents could adopt their grandchildren and the standards and elements to be considered by the Court in making such a determination. The Court reversed and remanded the previous decision, upholding that the re-appellant is permitted to adopt their grandchildren. The Court viewed adoption as a legal process establishing a filial relationship for those not originally tied to a parent-child relationship by birth. The Civil Act of Korea only requires consent and permission. It does not preclude the adoption of a blood relative unless the child is an ascendant or a person of older age. Therefore, the Court decided that there are no reasons to view that the adoption of a grandchild by his/her grandparent, which allows for establishing a parent-child relationship, is impossible considering the meaning and essence of adoption.

If the requirements for adoption are satisfied and the adoption secures the child’s welfare, the Court may approve the adoption even when a grandparent files such a request. In such a case, however, the grandparent-grandchild relationship does not cease, and the adopter remains as parents to the child’s biological father or mother even after adoption. Accordingly, the Court found it necessary to closely examine the impact of such circumstances on the child’s welfare. It further examined additional conditions for adoption, such as whether the grandparent has the substantial intent to establish an adoptive parent relationship with the child rather than maintaining the relations as a caregiver of the child and whether the purpose of adoption is sole to provide constant and permanent care and protection to the child as a parent rather than to benefit from possible merits other than the welfare of the child, like the acquisition of nationality, inheritance or socioeconomic benefits arising from adoption.

Moreover, the Court found that the consent of the child’s biological parents should be confirmed, provided they have been given sufficient information on the nurturing of the child or on adoption, including the procedure and the possibility of reversing the adoption. It further noted the necessity of the family court to conduct a family fact-finding hearing and consultation. The Court expressly acknowledged the child’s rights to be heard in the adjudication to grant permission for adoption, even those under the age of thirteen, citing Article 12 of the Convention on the Rights of the Child (CRC). Whereas the Convention ensures such rights to those ‘capable of forming his or her own views’ regardless of age but weighing the views based on age and maturity, the Civil Act does not expressly recognize the rights of a child under age thirteen whose express consent is not required for adoption. It is the view of the Court that if the adoptee is able to form his or her opinion even when the child is under thirteen, the child’s opinion needs to be heard in a manner appropriate during the fact-finding hearing.

The Court also reviewed whether a stepparent-stepchild relationship can be naturally formed between the grandparent and child, examining the following elements: the age of the child and the grandparent, the background leading to the adoption of the child, and whether the child’s biological parents are alive and if so, whether there has been an interaction between the child and his or her biological parents. The Court advanced that the decision granting permission for adoption should be made to the possible extent to positively affect the welfare of the child, weighing the pros and cons of adoption, which may differ depending upon individual and specific circumstances.

Three Justices out of the fourteen justices dissented from the decision. They maintained that the adoption of a minor grandchild, a lineal blood relative of the grandparent, cannot be naturally understood in light of the original meaning of the parent-child relationship. Moreover, they expressed concern that it is likely to provoke the child to experience identity confusion. The Justices shed light on the fact that a child is entitled to the right to be cared for by his or her parents. This principle is well-grounded in international norms and domestic laws, which is also supported by various social security and guardianship systems in Korea. They expressed that it would be inappropriate for the grandparent, who should be supporting and aiding the child’s biological parents as the closest lineal ascendant to them, to assume the parental status as a caregiver owing to the incompetence of the biological parents whose socioeconomic status is low. They argued further that adoption by grandparents could be admitted only under the condition that the above cause of anxiety is resolved for good, as granting permission for adoption should be rigorously regulated in a case where grandparents file a request for permission for the adoption of their grandchildren. Therefore, the Justices indicated that the re-appeal should have been rejected as the family court has broad discretion to decide whether to permit adoption for the child’s welfare.

* Article 877 (Prohibition of Adoption) of the Civil Act of Korea stipulates that “No ascendant or person of elder age shall be adopted.”

* Article 12 of the CRC stipulates that “States Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child and the Child shall be provided the opportunity to be heard in any judicial proceedings affecting the Child.”

Protection under International and Domestic Law (Refugees)

Decision of Seoul High Court on a Claim for Cancellation of Administrative Disposition (Seoul High Court Decision 2021Nu34345 decided on 19 April 2022)

The Plaintiffs are a married couple from the Islamic Republic of Pakistan. They categorized themselves as falling under ‘the status of a member of a specific social group’ since they are ‘those who married against the will of their families, belonging to a different caste or tribe’ who need protection under Article 2 (1) of the Refugee Act. The Plaintiffs asserted that there is a well-grounded fear that they will confront threats, be detained or get assaulted, or even get murdered by their family if they are sent back to Pakistan. Also, they alleged that they would face persecution when returning to Pakistan, and the chances of receiving adequate protection from Pakistani authorities due to corruption and acquiescence of judicial and investigative organs were low. Therefore, they argued that the administrative disposition not to acknowledge them as refugees must be annulled.

The Court first acknowledged that Pakistan has traditionally been a patriarchal society where women are subject to the control and protection of a male family member. Accordingly, most people view marriage as a type of transaction or exchange between other families. The harm to the family’s reputation may be recovered by causing physical damage to the woman who brought dishonor to the family. Furthermore, the Court referred to cases where the wife may be confined, assaulted, or even in extreme cases, murdered when the spouse is from a lower caste. The Judgment specifically refers to such crimes, especially concerning murder, as ‘honor killing.’ Also, referring to the fact that honor killing per population occurs the most in Pakistan and, moreover, the fact that the previous residential area of the Plaintiffs tops in crimes committed against women, the Court took note of documents such as the 2017 Report of the UN Committee Against Torture that still hundreds of cases of honor killing is widely committed and most are left unpunished or not prosecuted (UN Doc. CAT/C/PAK/CO/1), or even not reported to the relevant investigative authority as it occurred within a family despite the revisions made in the Pakistani laws. The Court further indicated that in March 2020, the UN Committee on the Elimination of Discrimination against Women recommended that Pakistan legislate additional shelters for women victims to improve awareness of investigative and judicial authorities, expressing regret that consistent discriminatory customs against women like honor killing still prevails in Pakistan. (Concluding observations on the fifth periodic report of Pakistan, UN Doc. CEDAW/C/PAK/CO/5).

Next, the Court determined that ‘those who married against the will of their families, belonging to a different caste or tribe’ can be seen as ‘the status of a member of a specific social group’ under Article 2 (1) of the Refugee Act on three grounds. Firstly, the marriage goes against their origin’s widely accepted custom or family norms. Secondly, the Plaintiffs will likely be subject to persecution (assault, forced divorce, marriage, homicide) by their families. Such acts can be seen as ‘persecution’ under the Refugee Convention. And thirdly, they cannot expect adequate protection from the nation of their nationality. The Court viewed the Plaintiffs are subject to serious infringement of their human dignity and discrimination, such as a threat to their fundamental freedom of marriage and sexual self-determination rights, beyond mere social criticism just because the applicants married against the will of their tribes and family.

The Court decided that the Plaintiffs are refugees with a well-grounded fear of being persecuted when sent back to their country. Moreover, the Court did not uphold the claim of the Defendant (Chief of Incheon Immigration Office) that the possibility of being persecuted against the Plaintiffs has become extinct due to the significant improvement in the situation of Pakistan and viewed that it would be difficult to expect the Plaintiffs to easily locate an alternative haven for them to be free from persecution. Accordingly, the Court upheld the Plaintiff’s claim and reversed the first trial.

* Article 2 (Definitions) of the Refugee Act stipulates that “1. The term ‘refugee’ means a foreigner who is unable or does not desire to receive protection from the nation of his/her nationality in well-grounded fear that he/she is likely to be persecuted based on race, religion, nationality, the status of a member of a specific social group, or political opinion, or a stateless foreigner who is unable or does not desire to return to the nation in which he/she resided before entering the Republic of Korea in such fear.”