KOBE – The South Korean Supreme Court’s Oct. 30 ruling on a group of South Korean people mobilized to serve as wartime labor for Japanese businesses has been rocking Japan-South Korea relations. Its effect is growing day by day, and the issue could potentially deal a fatal blow to bilateral ties.
Because of the legal logic employed by the court, the ruling has had a huge impact. First, the ruling placed the issue of wartime Korean laborers outside the scope of the 1965 Japan-South Korean agreement on compensation claims dating back to Japan’s colonial rule of Korea. The court took the position that since Japan, through the process of negotiating the agreement, refused to acknowledge the illegality of its colonial rule, the accord does not cover compensation for illegal activities on the part of the Japanese government and businesses that followed the government’s policies. Thus it has been established that compensation for every type of activity during the colonial period that the Supreme Court regards as illegal is outside the purview of the agreement.
Second, by using the phrase “illegal colonial rule,” the court in substance adopted the standpoint that Japan’s colonial rule was legally invalid. This will have the effect of making most of the law-based activities by Japan during colonial rule “illegal,” giving most South Koreans who lived under colonial rule the right to seek damages for the “illegal” activities. In short, the ruling not only placed the individual rights of South Koreans who lived in the colonial period to seek compensation outside the framework of the 1965 agreement, but also, by recognizing the scope of the “illegal” activities broadly, effectively allowed a wide spectrum of people to seek damages associated with Japan’s colonial rule.
It’s clear that the ruling has a much larger effect than the “comfort women” issue. So far, the South Korean government and judiciary have treated the comfort women issue as an exception to the 1965 agreement — along with the issues of Koreans left behind on Sakhalin after World War II and Koreans exposed to the atomic bombings of Hiroshima and Nagasaki — on the grounds that these issues were not fully addressed in the negotiations on the 1965 accord. This represented their desire to not let the comfort women issue impact the question of the compensation agreement as a whole. No matter how heated the controversy over the issue became, the accord remained intact.
But this ruling has virtually gutted the agreement by giving a wide range of people the right to seek compensation over a broad range of issues. The only restraint concerns the question of the jurisdiction of South Korean courts. If the judiciary takes the position that the courts can handle lawsuits filed against the Japanese government or allows people to sue Japanese government offices in South Korea, legal action against not just private sector firms but also against the Japanese government becomes possible. This is what the Supreme Court’s legal logic means.
This ruling obviously differs from the position of the Japanese government and, more accurately, that of Japan’s judiciary. The latter thinks that although individual Koreans’ right to seek compensation has not been rendered void by the 1965 deal, Seoul has promised to deal responsibly with the matter. It also takes the position that Japan’s colonial rule was legally valid.
Of course, the Japanese and South Korean governments are bound to follow the judgments of their respective judiciaries and cannot carry out negotiations that run counter to the rulings because if both governments reach a compromise agreement that contradicts their judiciaries’ judgments, the lawsuit plaintiffs would then have the right to sue the governments for damages.
Therefore, it is almost impossible to diplomatically paper over the vast gap in the interpretations of the 1965 agreement. And recently Seoul took an action that made the situation even more difficult. On Nov. 5, it released a statement that effectively denied the legal force of the 2015 bilateral agreement on the comfort women issue. Japan regards this development as a typical action that unilaterally denies the legal force of whatever agreement the two governments reach over historical issues. And such a development serves to deprive Japan of the incentive to negotiate any deal with South Korea.
Under the current circumstances, even if the South Korean government makes a proposal, for example, to reduce or shoulder the immediate financial burden of the Japanese businesses targeted by compensation suits, it is unlikely that Japan will accept it. For if the agreement is broken in substance, Tokyo must also bear the political responsibility for it, which will pose a huge burden on it.
Since the judiciary of each country interprets the 1965 agreement differently, resolving the issue will be impossible without eliminating the gap. Either an arbitration committee envisaged under the 1965 agreement will have to be established or the matter will have to be left to the judgment of a substitute organ, or more concretely, the International Court of Justice. From a long-range perspective, the latter approach would be more constructive.
It is also difficult to engage in a “two-track” negotiation as proposed by South Korea because the Supreme Court ruling on Oct. 30 and the subsequent rejection of the legal force of the comfort women deal have deepened Japan’s distrust of South Korea, making Tokyo extremely cautious toward holding talks with Seoul. The proposal is defective in the first place because although South Korea proposes that the first track deal with issues over past history and the territorial dispute over the Takeshima islets, it has failed to show what specifically should be discussed in the second track. Merely establishing the second track is meaningless without content.
Behind the latest developments is the very fact that the administration of President Moon Jae-in lacks a policy toward Japan. While it devotes a lot of energy to negotiations with North Korea for peace on the Korean Peninsula, and on talks with the United States to realize that peace, it virtually has no concrete policy vis-a-vis Japan, including specific goals that it hopes to achieve while Moon is in office. Looking at its response to Supreme Court rulings on wartime Korean laborers in Japan, one cannot see any overall coordination in its policy toward Japan.
The behavior of Moon himself gives no indication that he attaches much importance to ties with Japan. Although he has been in office 1½ years, he visited Japan only once — to attend a tripartite meeting of Japanese, Chinese and South Korean leaders in May — and that event did not result in any substantial bilateral talks. After the so-called Rising Sun Flag issue cropped up in October — South Korea’s rejection of a visit by Maritime Self-Defense Force destroyers flying the same flag used by the Imperial Japanese Navy — Moon abandoned a plan to visit Tokyo by year’s end. Instead of visiting Japan to discuss difficult issues with its leader, he chose to postpone the summit because a problem emerged that was difficult to handle. It is difficult to discern in him an attitude that gives serious consideration to ties with Japan.
The same can, of course, be said of Japan. Currently neither country can find positive meaning in the bilateral relationship, and they are taking a backward-looking attitude to repairing their damaged ties. The current situation is unlikely to improve quickly. As a result, the gap between the two countries over the perception of past history as well as security issues will likely become wider, thereby negatively affecting the various aspects of their bilateral ties.
There are two possible scenarios regarding the development of Japan-South Korea relations. The first is that their widening differences will lead to a decisive confrontation and escalate into some sort of conflict. It may be a conflict over the territorial dispute or over the history-interpretation issues involving private-sector companies. This scenario will require one premise: that the problem in question is of vital importance to the two countries and that public opinion in each country is seriously concerned.
Currently, however, there does not appear to be any energy in the bilateral relationship — especially in South Korea — that focuses on resolving any problems between the two countries. As shown by the lack of public interest in the comfort women issue or any other subject touching on relations with Japan in South Korea’s presidential election last year, South Korean public interest in Japan has declined to a level incomparably lower than ever before.
If that is the case, the second, more plausible scenario will be that Japan and South Korea will drift further apart over history and security issues, leading people in each country to harbor distrust. But given that little importance will be attached to bilateral ties, there is little possibility that sincere efforts will be made to find a solution.
The two countries will leave the problems unattended even as they harbor mutual distrust. Consequently, bilateral relations will dwindle, and public sentiment in each country will give up hope on the other. The eventual result will be a situation close to the two countries letting the relationship wither away. Will such a situation be desirable for our countries? Now may be the last chance to stop and think about it.
Kan Kimura is a professor at Kobe University’s Graduate School of International Cooperation Studies. The original Japanese version of this article was published at President Online.