Comfort Women Agreement Constitutionality

📅 July 7, 2026 📖 515 words 📂 cases south-korea

Introduction

The “comfort women” (위안부) issue — involving the forced sexual slavery of Korean women by the Imperial Japanese Army during World War II — has generated significant constitutional litigation in South Korea. The 2015 agreement between South Korea and Japan, which purported to settle the issue “finally and irreversibly,” was challenged before the Constitutional Court as violating the victims’ fundamental rights. Related litigation has addressed the constitutionality of the agreement and the state’s duty to protect the rights of former comfort women.

Historical Background

An estimated 200,000 women, mostly Korean, were forced into sexual slavery by the Japanese military during World War II. After Korea’s liberation, the issue remained largely unaddressed in diplomatic relations. The 1965 Treaty on Basic Relations between the Republic of Korea and Japan did not address individual claims for wartime sexual violence.

2015 Agreement

On December 28, 2015, the South Korean and Japanese governments announced an agreement under which:

Japan would contribute KRW 1 billion (approximately USD 8.3 million) to a foundation for comfort women victims
South Korea acknowledged the issue was “finally and irreversibly resolved”
South Korea committed to refrain from criticizing Japan on the issue at the UN and other international forums

Constitutional Challenges

Violation of Victims’ Rights

Former comfort women and their families filed constitutional complaints arguing that the 2015 agreement violated:

Human dignity and worth (Article 10): The agreement failed to acknowledge Japan’s legal responsibility
Right to access courts (Article 27): The agreement interfered with ongoing and potential litigation
Right to truth: The state had a duty to pursue historical truth and accountability

Constitutional Court Decision

In 2019, the Constitutional Court (2016Hun-Ma110, etc.) declined to find the agreement itself unconstitutional but held that:

The agreement did not have binding legal effect under domestic law (it was a political arrangement rather than a treaty)
The government’s implementation of the agreement — including closing the Japanese-funded foundation and discouraging litigation — could violate victims’ rights
The state has a duty to continue pursuing diplomatic measures for resolution

Dissolution of the Foundation

The agreement’s implementation was controversial. The Reconciliation and Healing Foundation (established with Japanese funds) was dissolved in 2019 under the Moon Jae-in administration, which repudiated the 2015 agreement as flawed.

Individual Compensation Litigation

In parallel with constitutional litigation, former comfort women brought civil damages claims against Japan in Korean courts. In January 2021, the Seoul Central District Court ordered Japan to pay KRW 100 million (approximately USD 84,000) to each of 12 plaintiffs (2020Ga-Hap150). The court held that the 1965 treaty did not bar individual claims for human rights violations.

The Japanese government has refused to participate in these proceedings, asserting sovereign immunity, though the Korean courts have held that sovereign immunity does not apply to systematic human rights violations.

Conclusion

The comfort women litigation represents the intersection of constitutional law, international human rights law, and diplomatic relations. While the Constitutional Court declined to invalidate the 2015 agreement, victims have pursued justice through civil litigation and international human rights mechanisms. The cases continue to shape South Korean constitutional jurisprudence on state responsibility for historical human rights violations.

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south-korea cases comfort-women human-rights international-law