[Column] Japanese foreign minister’s faulty understanding of forced labor ruling

Posted on : 2018-11-07 17:47 KST Modified on : 2019-10-19 20:29 KST
Supreme Court’s decision emphasizes the illegality of 1965 agreement
Lee Chun-sik
Lee Chun-sik

After the South Korean Supreme Court’s recent ruling that Koreans conscripted into labor during Japan’s colonial occupation should be compensated, Japanese Foreign Minister Taro Kono said that the South Korean government ought to compensate the workers itself.

Kono thinks that the South Korean government should deal with the issue itself since, according to the agreement it reached with Japan in 1965 that settled outstanding claims, Seoul received US$300 million in grants and US$200 million in loans from Tokyo and agreed to take responsibility for paying the victims’ compensation and reparations.

There’s nothing original about this argument. It’s the obvious logical conclusion of Japan sticking to its standard position that individual claims were resolved by the 1965 claims agreement.

But this argument represents a faulty understanding of the South Korean Supreme Court’s decision. This decision emphasized the fact that the labor conscription was “illegal” and that the 1965 agreement didn’t cover illegal activity. The court’s conclusion is that, since the illegal forced labor caused physical and mental damage, compensation must be paid, and that this compensation was not included in the US$500 million paid as a result of the 1965 agreement.

“The South Korean government can’t pay the damages instead [of Japan]. And even if it did, that wouldn’t absolve the perpetrator’s responsibility to pay damages,” said Kim Se-eun, an attorney who participated in this lawsuit. The pathetic nature of Kono’s arguments becomes evident when we consider that he wants the South Korean government, which is bound to the decision of the Supreme Court, to take responsibility for something for which it’s not responsible.

The fluidity of Japanese government’s position

It’s widely known that Japan has used the 1965 agreement as a shield for rejecting the right of any Korean to make claims. But Japan didn’t initially deny the individual right to make claims. Even until the 1990s, Japan’s position was that only the right to diplomatic protection had expired and that the individual right to remain claims remained valid.

In Aug. 1991, Shunji Yanai, then director of the Foreign Ministry’s international legal affairs bureau, told the Japanese House of Councilors that both sides had given up their right to diplomatic protection, but individuals’ right to make claims itself had not been voided in terms of domestic law. In the 2000s, Tokyo shifted to the stance that the individual right to make claims had been finally dealt with by Japan and South Korea’s agreement about outstanding claims.

The Japan’s original denial that the individual right to make claims had lapsed was related to the fact that the Treaty of San Francisco, signed in Sept. 1951, and the Soviet–Japanese Joint Declaration, signed in Oct. 1956, both included clauses in which both sides renounced their right to make claims. These clauses were the grounds used by victims of the atomic attacks in Japan and Japanese detained in Siberia after the war to sue the Japanese government.

According to Japanese attorney Seita Yamamoto, the Japanese government has said the right to claims was not voided by treaty when Japanese victims requested compensation and has also said this right was in fact resolved by treaty when foreign victims have filed similar lawsuits.

Inconsistency of South Korean government’s actions

The South Korean government’s position has not been consistent, either. Its original position was that the individual right to make claims had been voided by the 1965 agreement with Japan. In 1975, the Park Chung-hee government finally paid 300,000 won (US$268) each to the family members of deceased forced laborers, amounting to a total of 9.1 billion won (US$8.12 million).

But when the lawsuits about forced labor became a political controversy in the 1990s, the government pivoted to the position that the individual right to claims remains valid. In Sept. 1995, then Foreign Minister Kong No-myeong told the National Assembly that “the government recognizes the individual right to make claims.”

But in Aug. 2005, under the Roh Moo-hyun administration, Seoul clarified its position as being that all matters had been resolved by the 1965 agreement except for three, namely victims of illegal actions, such as the comfort women, the Sakhalin Koreans and the victims of the atomic bomb. After that, the government paid 66,985 victims of forced labor and their family members up to 20 million won (US$17,843) each in compensation, with 540 billion won (US$481.4 million) disbursed altogether.

Issue ultimately one of human rights violation

In Japan, South Korea is apparently being criticized for moving the goalposts. But the Japanese government is also guilty of self-serving interpretations. We seem to have passed the stage where a solution can be sought through legal debate. On Nov. 5, 93 Japanese lawyers issued a statement in which they said that the forced labor issue was essentially a matter of human rights. The only answer is to find a solution that can be acceptable to the victims whose human rights were violated.

By Park Byong-su, editorial writer

Please direct comments or questions to [english@hani.co.kr]

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