뉴스레터

This year marks not only the centennial of the March 1st Movement and the establishment of the Republic of Korea Provisional Government, but also concurrently the 80^th anniversary of the beginning of World War II. However, the fact that the history of Japanese military comfort women and forced labor mobilized for Japanese invasions under Imperial Japan’s colonial rule that began 119 years ago reminds us of the slew of historical tasks handed down to us today. That is the question that history poses to our generation, defined as “an unending dialogue between the present and the past” by E. H. Carr, a representative historian from the 20^th century. The answer to this question comes to us through historical introspection as “challenge and response,” advocated by A. J. Toynbee, which are tasks that must be illuminated from the perspective of historical justice.

International Human Rights Law Born Out of Repentance Over World War II

In a historical context, World War II (1939-1945) was the biggest calamity provoked by totalitarian states in human history. World War II, which broke out with the German troops’ invasion of Poland on September 1, 1939, became an international war as a result of the confrontation between the Axis Powers, the three-nation military alliance involving Germany, Italy, and Japan, and the Allied Powers involving Britain, France, the U.S., the Soviet Union, and China. The 1929-1933 Great Depression, which had been caused by crisis in the capitalist world following World War I, seriously affected Germany, Italy, and Japan, countries who were weak in basic fundamentals because of unequitable development. The Axis Powers provoked the war of aggression to break out of the crisis with one move.

Furthermore, it is worth noting that the unprecedented calamity that took 50 million lives throughout the course of World War II was a horrible consequence conceived by the evils of nationalism that suppressed individual freedom and ideologically based on totalitarianism, which was called Fascism in Italy, Nazism in Germany, and Militarism in Japan. It is ironic that international human rights law, the bastion of human rights in today’s international community, came to be thanks to the despicable World War II that recorded the largest number of casualties in human history. International human rights law was created from awareness and remorse about the fact that Japan and Germany’s invasions and atrocities were the results of wicked totalitarian philosophy making light of human dignity.

The United Nations, which began to be discussed during World War II and launched on October 24, 1945, led the development of international human rights law by stipulating in its charter that member states are obliged to prevent war, or negative peace, aimed towards peaceful communities in the international society while protecting human rights, or positive peace. The development of international human rights law can be divided into three stages: first, the stage of establishing the norms of international human rights law; second, the stage of founding international human rights agencies; and third, the stage of establishing the execution system of international human rights law. The main contents of each stage are as follows. During the first stage of establishing the norms of international human rights law (1945-1966), human rights protection was stipulated in Articles 1, 55, and 56 of the U.N. Charter, and the convention concerning the prevention of genocide and punishment of 1948 and two U.N. human rights pacts and agreements adopted in 1966 were established to abolish all types of racial discrimination. During the second stage of founding international human rights agencies (1966-1989), the U.N. Human Rights Commission and the U.N. Committee on the Elimination of Racial Discrimination were launched with the effectuation of international pacts on civil and political rights and international agreements on all types of racial discrimination. During the third stage of establishing the execution system of international human rights law (after 1989), a variety of institutional devices were made for the sake of observing human rights-related rules after the Cold War and their efficient execution.

Development of International Human Rights Law and Adoption of Basic Principles of Victims' Rights

What is especially noticeable in connection with the development of international human rights law is the fact that the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Humans Rights Law and Serious Violations of International Humanitarian Law” (hereinafter shortened to “Basic Principles on Victims’ Rights”) was adopted unanimously in the U.N. General Assembly on December 16, 2005. The principles are the fruits of efforts to create international standards concerning the rights of victims of human rights violations committed by governmental power and also to reflect the development of legal principles related to “victims’ rights concerning effective relief” based on major international pacts. These principles are soft law themselves but are the “victim’s bill of rights” in that they suggest principles and guidelines about the state’s obligations to guarantee the acknowledged rights of human rights victims. They play the role of solving problems through the “victim-centered approach” in the development of related international norms and procedures.

Victims defined in the “Basic Principles on Victims’ Rights” refer to “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term ‘victim’ also includes the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization” (Article 8).

With respect to the guarantee of victims’ rights, each state has the obligation to respect, ensure respect for, and implement international human rights law and international humanitarian law. The obligation emanates from, “Treaties to which a state is a party, customary international law, and the domestic law of each state” (Article 1). “If they have not already done so, States shall, as required under international law, ensure that their domestic law is consistent with their international legal obligations” (Article 2). Each state’s obligation includes the duty to, “Take appropriate legislative and administrative and other appropriate measures to prevent violations, investigate violations effectively, promptly, thoroughly and impartially….” The state must also, “Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice… and provide effective remedies to victims, including reparation” (Article 3).

Furthermore, victims’ rights to remedies are classified into justice, reparation, and access to relevant information. First, a victim’s rights to justice under the title of, “Equal and effective access to justice” (Article 11), include, “Equal access to an effective judicial remedy as provided for under international law,” and, “Other remedies available to the victim include access to administrative and other bodies…in accordance with domestic law” (Article 12). Second, victims should, “As appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation…which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition” (Article 18). Third, “Victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and…international humanitarian law” (Article 24).

Supreme Court's Compensation Ruling on Forced Labor and Japan's Export Restrictions

On October 30, 2018, the Supreme Court reached a final verdict concerning the top court’s ruling on forced labor reparation on May 24, 2012 based on the victim-centered principle according to international human rights law. As a result, Japan’s Abe administration said that Korea’s catch-all system was insufficient and removed Korea from its “whitelist” on August 2, enabling friendly nations to be subject to simpler export procedures, following its export curbs on photoresist, fluorine polyimide, and high-purity hydrogen fluoride, substances that are essential to manufacturing semiconductors and displays. This directly demonstrates that Korea and Japan are not yet free from their serious historical conflict arising from the past, a legacy of the 20^th century, as a predecessor of the peace community for mutual growth and prosperity in the 21^st century. This is because, as the Japanese Historical Society lashed out at Abe’s statement released on the 70^th anniversary of the end of World War II, Japan’s arrogance was expressed, becoming the provocation that breached international trade rules, namely export restrictions on key materials. This came from the mistaken belief arising from self-righteous historical awareness rather than facing up to the history under the banner of “emerging from the postwar system” and “historical revisionism.”

Then, it will be necessary to bring to light the “1910 lawful colonization theory” and the “completion theory of the 1965 Korea-Japan Treaty,” the twin arguments raised against Korea, and block Japan’s violations of international trade rules aimed at neutralizing the Korean Supreme Court’s ruling based on the principles of international law.

The 1910 Korea-Japan Annexation Treaty, the basis of Japan’s argument for the lawful colonization theory, is not a legal pact signed under the agreement by equitable sovereign states without defects in form and procedures, but rather an illegal pact compelled under pressure and aggression, which constitutes grounds for being nulled and voided. Thus, it can be said that Koreans’ claim for damages caused by misdeeds directly linked to colonization, including Japan’s anti-humanitarian illegal acts like Japanese military comfort women and forced labor under Japan’s unlawful colonial rule, is not subject to the 1965 Korea-Japan Treaty, assuming that Japan’s colonial rule is legal. The second argument – the completion theory of the 1965 Korea-Japan Treaty – is that victims’ individual claims became completely and ultimately extinct. But the apology for and answers to Japan’s colonial rule in the Murayama statement in 1995, by Treaties Bureau director Yanai Shunji in 1991, and Japan’s Foreign Minister Taro Kono on November 14, 2018 from the Diet coherently state that the right of individuals to file claims cannot be extinguished. This is because the rights of individuals, requirements that constitutes human rights in terms of international law, cannot be destroyed, and in terms of domestic law, the rights of individuals cannot be extinguished either because breaches the basic rights of a countryman. Nonetheless, unlike the answers from Japan’s Diet, the Abe administration is reiterating its contention that Koreans’ claim for damages was resolved with the 1965 Korea-Japan Treaty.

Since the joint statement in 2010 made by 1,139 Korean and Japanese intellectuals declaring the “1910 Korea-Japan Annexation Treaty invalid,” the Constitutional Court and the Supreme Court came to a final decision, based on the victim-centered principle under the “Basic Principles on Victims’ Rights” adopted by the U.N. General Assembly in 2005 in the constitutional appeal in 2011 by comfort women and the lawsuit for damages in 2012 by victims of forced labor, respectively. But in relation to the Constitutional Court’s decision on nonfeasance unconstitutionality in 2011, there are two issues that need attention. First, to resolve the status of nonfeasance unconstitutionality, the Korean government asked for Japanese government renegotiations and referral to the arbitration committee under Article 3 of the Korea-Japan Treaty, but even the renegotiations were not realized because of the Japanese government’s refusal. Second, this is an issue regarding the abolition of the Korean government’s import restrictions on marine products contaminated by Fukushima radioactivity by the Japanese government at the meeting of directors to settle the issue of comfort women in 2014. Japan then asked for measures to protect people’s health under (b) of Article 20 of GATT, which is recognized as the general exception to the WTO-honoring free trade, and further filed a petition with the WTO. However, Japan claimed the reform of the WTO after losing the case in the end.

In connection with Japan’s export curbs understood in the extension of this context, to begin with, the Japanese government argued the violation of international law and the 1965 Korea-Japan Treaty after the Korean government rejected the arbitration committee Japan had asked to neutralize the ruling of the Supreme Court. Second, Japan defended the appropriateness of its export curbs by reversing the confidential relationship, the forced labor ruling, and the management system of strategic goods as the reasons for its export restrictions on high-tech industrial materials. But Japan’s measures amount to the typical violation concerning the norms of international trade law.

First of all, Japan’s export curbs are in violation of paragraph 1 of GATT Article 11. Export restrictions on high-tech industrial materials mean assuming arbitrary limits or bans on exports, which is a typical violation of the principle of banning quantitative restrictions. The restrictions are also in violation of paragraph 1 of GATT Article 1. The Most Favored Nation status is the most fundamental principle prohibiting discrimination against goods of the same kind. Discriminating against Korea over the three key materials for semiconductors and displays is a typical violation of the Most Favored Nation status. Moreover, Japan violated paragraph 3 of GATT Article 10. Under the GATT system, Japan should have provided contracting nations with coherent, fair, and reasonable customs clearance and general administrative procedures, but instead pushed forward with its export curbs, citing the confidential relationship, the forced labor ruling, and the management system of strategic goods. This amounts to a typical violation of obligations to implement coherent, fair, and reasonable customs clearance and administrative procedures. In connection with the management system of strategic goods, the Institute for Science and International Security (ISIS) of the United States ranked the U.S. number 1, Korea number 17, and Japan number 36.

The policy direction of the Abe administration envisions that Japan, the war criminal of World War II, should depart from its system of peaceful constitution and return to a state that can go to war while revising history itself, rather than repenting its past misdeeds. Against this backdrop, the Supreme Court’s victim-centered ruling on forced labor destroyed the frames of Japan’s lawful colonization theory and completion theory of the Korea-Japan Treaty with just one stroke. Japan’s push for export restrictions that would bring down the global value chain is a typical violation of international trade law and is worth noting that it is no different from the imperialistic move Japan had pursued before World War II.

International Human Rights Law and Tasks of Historical Justice

It is already well-known through the Abe statement that perpetrators keep snowballing the logic of assailants. Thus, victims ought to solve the problems based on legal principles in accordance with international human rights law on the basis of human rights, justice and peace and the victim-centered principle unanimously adopted by the U.N. General Assembly. We must raise questions through the normative system in the peaceful community of the international society in the face of Japan’s violations of international law. The starting point of the “Durban Declaration” that heralded the historical conclusion of colonialism in 2001 was the testimony of Mrs. Kim Hak-sun, a comfort woman, in 2001. As the central axis of victims, Korea must solve our problems according to international human rights law. It is an historical question that international human rights law, which came to be out of repentance for World War II, asks us and the task of historical justice.