Article 6(1) of our Constitution provides that "generally recognized rules of international law shall have the same effect as domestic laws," and there is no disagreement in constitutional or international law scholarship that "generally recognized rules of international law" in that provision include customary international law; our Constitutional Court has also made clear that generally recognized rules of international law are subject to constitutional review. In addition, the Constitutional Court declared: "The claims for damages of the 'comfort women' victims against Japan for crimes against humanity committed by the Japanese military are not only property rights guaranteed under the Constitution; realizing those claims also means restoring, after the fact, human dignity and worth and bodily freedom, and blocking the realization of those claims is directly related to the infringement of the fundamental human dignity and worth under the Constitution."

The Supreme Court requires, in order to apply customary law as a norm for adjudication, legitimacy and reasonableness that do not contravene the entire legal order with the Constitution as the supreme norm, that is, constitutionality. Therefore, for a domestic court to recognize "generally recognized rules of international law," that is, customary international law, and use it as a norm for adjudication, it must determine not only whether the rule is established as a general international practice and whether legal conviction is established internationally, but also whether that customary international law conforms to our constitutional order. In applying customary international law on sovereign immunity in the damages lawsuits brought by the Japanese military "comfort women" victims against Japan, our courts must likewise review whether that customary international law conforms to our constitutional order. (Oh Seung-jin, 2018, A Study on the Damages Lawsuits of Japanese Military "Comfort Women" Victims: Focusing on Judgments of Foreign Courts, Dankook University Legal Research Institute, Dankook Law Review Vol. 42 No. 1)

Applying customary international law on sovereign immunity to the damages lawsuits filed by the "comfort women" victims against Japan restricts our courts' exercise of jurisdiction, so the courts cannot even proceed to decide on the victims' substantive rights. As the Constitutional Court held earlier, this blocks the realization of the victims' claims for damages, which are property rights guaranteed by the Constitution and mean the after-the-fact restoration of human dignity and worth and bodily freedom, and therefore does not conform to our constitutional order. Accordingly, such customary international law on sovereign immunity cannot be said to have the same effect as domestic law and cannot be our norm for adjudication. (Lee Eunkyung, 2018, Discussion of Legal Issues in the Damages Lawsuits of "Comfort Women" Victims, Seoul National University BK21 Law Research Group, Center for Public Interest and Human Rights Law, Public Interest and Human Rights Vol. 18)

5. Assessment of the recent Seoul Central District Court judgment 2016Gahap505092 rendered on January 8, 2021

This is a case in which Plaintiff A and others, who were forcibly mobilized during the Japanese colonial period and forced to live as "comfort women," sought payment of consolation money from Japan.

The "comfort women" damages lawsuits continued afterward: in April 2021 a different panel of the same court recognized state immunity and dismissed the suit, but in November 2023 the Seoul High Court reversed that decision and rendered a judgment denying state immunity. Organizing even this flow of conflicting conclusions is a great help in preparing constitutional and international law assignments and debates that link, all at once, Article 10 of the Constitution (human dignity and worth), Article 27 (the right to trial), and the domestic effect of customary international law. It is even better to focus on learning the order of argument rather than the conclusion of the judgments.