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Japanese Foreign Minister Taro Kono

Japanese Foreign Minister Taro Kono acknowledged that victims of forced labor have the individual right to make claims for damages. This is the first time that a member of the Japanese cabinet has admitted the existence of the individual right to make claims since South Korea’s Supreme Court ruled on Oct. 30 that Koreans conscripted into labor must be paid damages.

When Keiji Kokuta, a lawmaker with the Japanese Communist Party, pointed out in the Committee on Foreign Affairs and Defense in Japan’s House of Councilors on Nov. 14 that even the Japanese government had acknowledged the existence of the individual right to make claims, Kono clarified that he was not saying that the individual right to make claims had lapsed. Kono’s comments weren’t reported until Nov. 16.

Speaking to Masahiro Mikami, director-general of the International Legal Affairs Bureau of Japan’s Ministry of Foreign Affairs, Kokuta also contended that what the plaintiffs in the South Korean trial had requested was not their unpaid wages but rather compensation for their compulsory mobilization, which was directly connected with Japan’s colonial occupation of the Korean Peninsula and its wars of aggression.

Kokuta also pointed out that Shunji Yanai, then director of the Foreign Ministry’s treaty bureau, said in 1992 that he “didn’t remember whether the right to claim compensation was included” in the rights and property of Koreans that had been voided by the Korea-Japan treaty. Kokuta pushed the point that this suggested that the right to claim compensation had not lapsed. “We aren’t denying Yanai’s remarks. The right itself has not lapsed,” Mikami responded.

But the significance of the Japanese government’s recognition of the individual right to make claims has gone through several permutations, and the current interpretation is that individuals have the right to make claims, but cannot exercise that right in court. In his response, Kono also repeated the standard position that “the issue of making claims between South Korea and Japan was completely and finally resolved by the two countries’ treaty.”

Mikami explained that the South Korea-Japan treaty contains “the promise that, even if the right to make claims exists, no remedy can be received by taking this to the courts.”

The Japanese government’s interpretation of the individual right to make claims is contradictory and nearly farcical because it is hobbled by the positions that the government has taken in the past about the harm suffered by its own citizens. In the 1952 Treaty of San Francisco, the Japanese government surrendered its right to make claims for compensation against the Allied powers. In response, the victims of the atomic attacks on Japan filed lawsuits for damages, arguing that they had been prevented from receiving a remedy by the Japanese government’s relinquishment of the right to make claims.

But the Japanese government ducked responsibility for paying compensation by arguing that the individual right to make claims had not lapsed. Furthermore, the government argued, what it had relinquished in the treaty was not the individual right to make claims, but only the right to diplomatic protection, in which the state makes claims on behalf of damage suffered by its citizens.

Since the Japanese government has clearly stated this position to its own citizens, it can hardly argue that Koreans’ individual right to make claims was voided by South Korea’s treaty with Japan. Now that Chinese and Korean victims are filing lawsuits, the Japanese courts have resorted to strained reasoning.

In a lawsuit filed by Chinese plaintiffs in 2007, the Supreme Court of Japan did not deny the plaintiffs’ right to make claims. At the same time, the court ruled against the plaintiffs on the grounds that exercising this right in individual civil cases was an “excessive burden” that could not have been predicted by the peace treaty. The sophistic judgment that the right exists but cannot be used to justify compensation has become the grounds for the Japanese government’s current position.

Akahata, the organ of the Japanese Communist Party, argued that Kono’s response in the House of Councilors had “rocked to the core the assertion of the Abe administration that the South Korean Supreme Court’s ruling was a clear violation of the South Korea-Japan treaty.” Several experts also argued that the Japanese government’s argument that rights cannot be made in the courts runs contrary to international standards.

“The ruling by the Supreme Court of Japan [and the Japanese government] that the South Korea-Japan treaty means that the individual right to make claims exists but claims in court are unacceptable goes against international norms,” said Seita Yamamoto, an attorney who specializes in postwar compensation.

By Cho Ki-weon, Tokyo correspondent

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