hankyoreh

The weekly Wednesday protests calling for the resolution of the comfort women issue were held again on Oct. 31 in front of the Japanese embassy in Seoul. Comfort woman survivor Lee Ok-seon is seen wiping her tears next to a photograph of Ha Jeom-yeon

The Ministry of Foreign Affairs (MOFA) submitted an opinion recommending the dismissal of a constitutional appeal filed by comfort women survivors over the agreement reached by the South Korean and Japanese governments on the Japanese military comfort women issue on Dec. 28, 2015, it was belatedly confirmed on Nov. 5.

The ministry’s position was based on its conclusion that the agreement “does not represent the exercise of governmental authority” and that the “basic rights of victims were not violated by the agreement.”

Critics are accusing the ministry of adopting an overly defensive attitude, with the same administration itself taking issue with the agreement’s legitimacy last year and the victims claiming that their “basic right in the form of the right of diplomatic protection” was violated by the agreement.

“As a non-legally binding political agreement, the comfort women agreement is not a treaty and therefore cannot be seen as an exercise of governmental authority,” a MOFA official explained in a Nov. 5 meeting with reporters.

“On that basis, we submitted a response [to the Constitutional Court] last June including a recommendation to dismiss the appeal, as the victims’ basic rights cannot be seen as having been directly violated,” the official added.

The argument is that because the Dec. 2015 agreement was a political “declaration” rather than a legally binding treaty, its legal standing should be viewed in those terms as a separate issue from its legitimacy.

In Mar. 2016, 41 comfort women survivors and family members of survivors submitted a constitutional appeal requesting a decision on the constitutionality of the agreement reached in Dec. 2015 by the Park Geun-hye and Shinzo Abe administrations, arguing that it constituted a violation of the survivors’ “constitutionally guaranteed basic rights” – namely property rights; the right to the pursuit of human dignity, values, and happiness; the right to knowledge; and the right to diplomatic protection by the state.

The ministry’s opinion submitted to the Constitutional Court in June was in response to this. In its reply, the ministry voiced the legal position that the Dec. 2015 agreement was not subject to a constitutional appeal because it did not constitute an exercise of government authority, failed to meet the conditions for violating basic rights (self-relevance, presentness, and directness), and did not represent an “advanced diplomatic action.”

“The response does not defend the legitimacy of the 2015 agreement, but focuses on the juridical and procedural aspects of the constitutional appeal,” a MOFA official said.

“We also stated in the reply that we humbly acknowledged that the comfort women agreement and its announcement could not provide a true solution to the Japanese military comfort women survivor issue, and that it had many issues in terms of procedure and content, including a failure to reflect the wishes of the survivors,” the official added.

“We do not believe the Japanese military comfort women issue can be fundamentally resolved through an agreement such as the comfort women agreement from 2015, and we feel that the issue can only be resolved ultimately when the dignity and reputation of the survivors has been restored and their wounds have healed,” the official continued.

In a Nov. 5 telephone interview with the Hankyoreh, an attorney with the group MINBYUN-Lawyers for a Democratic Society, which is representing the comfort women survivors, blasted the attitude shown by MOFA in its reply.

“The South Korean government has not fulfilled its obligation to resolve these [survivors’] issue in terms of dispute resolution procedures,” the attorney said.

“This constitutes a violation of basic rights, as per the Constitutional Court’s decision in 2011. Even a diplomatic action is subject to a constitutional appeal review when its content restricts or violates basic rights,” the attorney continued.

“The Ministry of Foreign Affairs did not say a word about the state’s diplomatic protection rights for the victims,” the attorney said.

In a 2011 case concerning the constitutionality of nonperformance of Article 3 of the 1965 Claims Settlement Agreement between South Korea and Japan, the Constitutional Court ruled that the South Korean government had not “exercised suitable discretionary powers” with the Japanese government to resolve the Japanese military comfort women issue – meaning that it was not working actively toward a solution. It also ruled that there was a “possibility of the petitioners’ basic rights being severely violated in the absence of execution of this obligation.”

The South Korean government accepted the 2011 Constitutional Court decision and began negotiations with the Japanese government, leading the agreement announced on the comfort women issue by the two sides on Dec. 28, 2015. The agreement, in which the issue was declared “finally and irreversibly resolved” with a payment of 1 billion yen (US$8.8 million) to the survivors by the Japanese government and the establishment of a foundation, has been criticized by many, including the survivors themselves.

After the Moon Jae-in administration took office last year, MOFA set up a task force, which concluded that behind-the-scenes agreements had occurred during the agreement’s development process, with the government failing to communicate adequately with the survivors. The agreement itself was effectively abandoned. As a measure to address the issue, the South Korean government announced plans to disband the Healing and Conciliation Foundation – a key part of the agreement – by the end of the year.

By Noh Ji-won, staff reporter

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