뉴스레터

Since its conclusion in 1965, the Korea-Japan Agreement has functioned as the legal foundation for the bilateral relations over the past fifty years. And it will continue to do so for years to come. Aside from its merits and demerits that may be reviewed from different angles, the Korea-Japan Agreement of 1965 is a historical record consisting of legal documents. Therefore, I think it worthwhile to review the Agreement with historical and legal interpretations.

It is said that history is "an unending dialogue between the present and the past." In studying history, therefore, it is necessary to interpret the historical facts of yesterday from the perspective of today while examining their causal relationship. To confirm the causal relationship between the Korea-Japan Agreement of 1965 and our reality today, the Korea-Japan Agreement system needs to be analyzed empirically and assessed objectively in terms of its impact on security and economic development in Korea over the past fifty years and on the liquidation of colonial rule.

The Korea-Japan Agreement System Reviewed in Counterfactual Reasoning

Another method worth trying is counterfactual reasoning. Even though people insist that "there is no 'if' in history," they unconsciously resort to this counterfactual reasoning sometimes. For example, they would ask, what if the Korea-Japan Agreement of 1965 was not concluded the way it was? Some might answer, "Then the Republic of Korea couldn't have developed as much as it has." Others might argue, "Then there could have been a better agreement, and the Republic of Korea would have been better off than it is now."

To understand what led to the Korea-Japan Agreement of 1965, let us look back in time before 1965. From 1951 to 1965, the governments of the First, Second, and Third Republics of Korea were in intense negotiations with their Japanese counterparts, but failed to either punish them, or get them to pay proper compensation, for colonial rule. There must have been complex factors at play, factors that shaped the world order after World War II. After inducing Japan's unconditional surrender, the Allies were lenient with the aggressor and defeated nation, and concluded the San Francisco Peace Treaty with Japan. Korea, on the other hand, despite its constant struggle against Japan, was not recognized as a victorious country by the international community. In the Cold War system, the Republic of Korea and Japan found themselves at the forefront of the Free World, each in an alliance with the United States, and had to normalize their diplomatic relations. There can be different interpretations of whether the Korea-Japan Agreement, negotiated and concluded against this background, was really the best possible option available, or whether reaching a better agreement would have been possible if efforts to do so had been made to the end at the expense of prolonging the negotiations. But a general interpretation that makes sense to many people would obviously be a meaningful historical interpretation.

Inherent Limitations of the 1965 Korea-Japan Agreement

"History is an unending dialogue between the present and the past" or such a dynamic interpretation has no place in the legal interpretation of a treaty, because the basic principle of interpreting a treaty is to confirm what was agreed between the parties to the treaty at the time of its conclusion, and the treaty text as the gist of the agreement between the parties remains intact unless revised by a new agreement or terminated by the procedure specified in the treaty. The 'progressive interpretation' of a treaty, although once adopted in international court, is a very exceptional case applied under special circumstances. The Korea-Japan Agreement of 1965, with its insufficient content and unclear text, generated legal issues between the two countries that remain unresolved to this day. The incompleteness of the Korea-Japan Agreement at the time of its conclusion, although it may be blamed on the weak negotiating power of the Korean government at that time, was more fundamentally due to the order of international law at that time.

Japan was essentially forgiven through the Treaty of San Francisco, to which the Republic of Korea was not a party. There was no written international law to govern treaties, nor was common law clear enough. The U.N. made many efforts for post-colonization, but none to create a set of rules under international law designed to liquidate colonial rule. It wasn't until after World War II that the relief of damage caused to individuals during wartime was addressed in earnest in postwar settlement treaties. But the global trend was to relieve damage collectively because it was impossible at that time to confirm and handle each case individually. Given the incomplete order of international law at that time, it would have been difficult to establish a seamless system of agreement that would allow Korea and Japan to liquidate their tragic past once and for all and establish a cooperative relationship.

Improve the Korea-Japan Agreement by Mutual Consent While Maintaining its Framework

Considering that Korea-Japan relations have been better in the last fifty years than any other period in their history, it is safe to say that the 1965 Korea-Japan Agreement system has carried out its historical missions relatively successfully. But, if Korea-Japan relations today are not satisfactory, the incompleteness of the Korea-Japan Agreement system is one of the reasons to blame. However, international systems of cooperation based on treaties are not some buildings that can be easily torn down all at once and rebuilt from the ground up. Doing so is neither possible nor desirable. Although there are various ways to improve the Agreement system while maintaining its framework, mutual consent is required in any case. In no way should it be unilaterally reinterpreted for improvement.

The 1965 Korea-Japan Agreement system already went through a great change in 1999 as the Korea-Japan Fisheries Agreement, a part of that system, was replaced by a new one in keeping pace with changes in the system of international maritime law. Such a drastic change is possible only when the order of international law goes through a fundamental change. The 50th year since Korea and Japan established their diplomatic relations may be a good occasion to have an in-depth review of the 1965 Korea-Japan Agreement system. But it is not the number 50 that matters. If there is a need to improve the Agreement system in order to cope with changes in the order of international law or in international situations, or if there is any serious problem resulting from defects in the Agreement system, it needs to be revised or improved at any time. And this should be an ongoing task.