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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.
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.