뉴스레터

Question

Japan claims that the right of individual recourse of the Korean victims of Japanese colonial rule expired with the conclusion of the Treaty on Basic Relations ("Basic Treaty" hereafter). What is the right of individual recourse, and what is at issue with Japan's claim?

Answer

Controversy surrounding the interpretation of the Agreement between Japan and the Republic of Korea Concerning the Settlement of Problems in Regard to Property and Claims and Economic Cooperation ("Claims Agreement" hereafter)

In March, three documents drafted by Japan's Ministry of Foreign Affairs were made public to the press. One of the documents, entitled "The Legal Definition of the Waiver of People's Property and Claims Rights in the Peace Treaty" (April 6, 1965), was drafted around the time when the Basic Treaty was concluded. It was drawn up in preparation of the suit filed against the Rhee Syngman government by the owners of the ships that had been captured by Korea for crossing the Peace Line. In the document, the expiration of the right to recourse in Article 2(1) of the Claims Agreement is interpreted as a pledge to not exercise the right of diplomatic protection, which is recognized by international law as the right of states.

The document, thus, recognizes the validity of the right of individual recourse even after the conclusion of the Basic Treaty. Given that the Basic Treaty applies equally to Korean and Japanese nationals, the document can be interpreted to recognize the right of individual recourse of the Korean victims of Japanese colonial rule.

Article 2(1) of the Claims Agreement stipulates, "claims between the High Contracting Parties and between their peoples...have been settled completely and fully." There are two interpretations of this clause. Some insist that this is only in reference to the right of states provided by international law. That is, the clause only waives the right of diplomatic protection—i.e., the right of one state to file a compensation suit against the other state concerning the latter's illegal violation of its nationals' rights. The second interpretation claims that a state, which has the right to exercise exclusive control or sovereign power over its citizens, can waive the rights of its nationals. Therefore, the right of individual recourse has been waived or expired with the conclusion of the Basic Treaty.

Changes in Japan's stance on the right of individual recourse

The right of individual recourse is the right of an individual to seek recourse against the government of another country concerning violations of individual rights or damages.

Before the 1990s, the Japanese government consistently held onto the argument that the Claims Agreement only applies to the waiver of the right of diplomatic protection and has no bearing on the right of individual recourse. Such a stance seemed inevitable due to the following reasons.

First, if the right of individual recourse has in fact expired as per the Basic Treaty, the Japanese government is violating the Japanese people's guaranteed right to property. As a result, the Basic Treaty would not qualify for the ratification of the Diet as per Article 73 of the Constitution of Japan. Second, Director-General Tanba [丹波] of the Treaties Bureau stated that the right of individual recourse is itself an unconfirmed right, and thus, cannot expire under the law. Third, in compensation lawsuits filed by Japanese nationals against the state of Japan, the Japanese government has consistently held onto the position of having waived its right of diplomatic protection.

However, once worries over a possible lawsuit by a Japanese-Canadian ship owner concerning the right of individual recourse were done away with in the 1990s, the Japanese government reverted to claiming that the right of individual recourse has also expired as per the Claims Agreement.

The year 2010 is the centennial of Japan's forced annexation of Korea. The facts behind Japan's illegal occupation of Korea and imperial aggression have yet to be uncovered and the victims still await an official apology and compensation. Japan's position on the right of individual recourse goes against the desire to settle historical conflicts and build a peaceful regional community.