뉴스레터

The Korea-Japan relationship is facing a cooling-off period more severe than ever before. This is the reality born out of a clear difference in views on the Korean Supreme Court's ruling on forced labor. Japan claims that the 1965 Korea-Japan Treaty settled its reparation duty for individuals claiming forced labor. Appearing on NHK on July 4, Japanese Premier Abe criticized the Korean Supreme Court's ruling for “going against the common sense of international law.” What makes Korea and Japan's points of view so different? We met an international law expert, professor Choi Seung-hwan of the law school at Kyunghee University, to help us understand forced labor during Japan's colonial period into “common sense of international law.”

Choi Seung-hwan

Professor in the Law School of Kyunghee University

Having graduated from the College of Humanities at Seoul National University, Choi obtained his doctoral degree in law at SNU after receiving his master’s degrees at SNU and New York University. He served as the arbitration expert of the WTO committee on subsidies and countervailing measures and chaired the Korean headquarters of the International Law Association, the Korean Society of International Law, and the Korean Society of International Economic Law. Currently, he is the chairman of the Korea-China Society of Law and a professor in the law school of Kyunghee University. Choi wrote about international law, international human rights law, and international economic law in his theses, “Legal Issues and Appraisals of China’s Economic Retaliations for South Korea’s THAAD Deployment under International Law,” “Promotion Types and Tasks for Sustainable Regional Development Projects in Northeast Asia after the UN Non-Proliferation Resolutions against North Korea,” “Human Dignity as an Indispensable Requirement for Sustainable Regional Economic Integration,” and “The Applicability of International Human Rights Law to the Regulation of International Trade of Genetically Modified Organisms: A New Haven Perspective.” His books include “International Economic Law,” “International Law,” and “A Study on WTO Trade Disputes Over Farm Products.”

Q

The Korea-Japan relationship keeps on worsening. The cause for these circumstances appears to be the ruling on compensation for victims of forced labor. How many people were forced to leave Korea for forced labor?

A

Japan forcibly drafted 7.8 million people, about 30% of South and North Korea’s population, to secure war supplies during the Pacific War. This number includes comfort women. Koreans mobilized as laborers were forced to work in over 11,523 places, including mines and collective farms. Aside from the problem of poor labor conditions, they suffered incurable pain because of unreasonable treatment like confinement, excessive violence, mass slaughter, and unpaid wages.

Q

It’s very natural for victims to ask for compensation. The Korean Supreme Court confirmed its decision in favor of the plaintiffs, acknowledging the compensation obligations of Japanese companies that committed war crimes. But Japan adheres to the position that it is not obliged to pay for damages from forced labor. What caused their positions to stray like that?

A

To start, it’s necessary to talk about the “treaty on damages claim” signed on June 22, 1965. Its formal title was the “Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation.” Under the treaty, Japan gave up on all capital invested in Korea and Japanese people’s individual properties while agreeing to offer USD 300 million in grants and USD 200 million in loans. Both countries agreed to forsake claims against each other’s countries. The reason why their positions differ despite such an agreement is that the two countries have different interpretations because of the ambiguous language in the treaty. Japan argues that the two countries mutually forsook all civil claims related its colonial rule while the Korean Supreme Court views that the right of individuals related to sexual slavery and forced labor was not forsaken under the treaty.

Q

The compensation lawsuits filed by the victims of forced labor with Japanese courts have been rejected. However, the Korean Supreme Court reached a completely different verdict. The Korean Supreme Court ruled that Japanese companies should provide compensation for the “anti-humanitarian acts” that they had committed against victims of forced labor. What are the legal standards of judgment behind this ruling?

A

We must know that Japan’s Abe administration differs from us in terms of views on forced labor. There is something Japan coherently claims in forced labor trials, which is that Japan’s colonial rule of the Korean Peninsula was lawful. Japan began to rule Korea at the request of the Korean government under the 1910 Annexation Treaty and so the wartime mobilization of its countrymen under the national mobilization act was legal. The Abe administration argues that the individual right for claims became extinct under the 1965 treaty, saying Japan had signed the treaty with this logic. However, our Supreme Court ruled that “Korean victims’ claim for damages against Japanese companies caused by misdeeds directly linked to Japan’s illegal colonial occupation of the Korean Peninsula and the execution of war of aggression, including Japanese companies’ anti-humanitarian illegal acts, are not subject to the 1965 Korea-Japan Treaty.” The first reason behind this ruling is that the Japanese court’s decision to deny Korean forced labor victims’ claim collides head-on with the core values of the Korean Constitution, seeing the forcible mobilization during Japan’s occupation period as illegal, and goes against Korea’s public order. Second, the 1965 Korea-Japan Treaty didn’t include the claims for damages regarding anti-humanitarian illegal acts involving state organizations and misdeeds related to Japan’s colonial rule. This means that the individuals’ claims cannot cease to exist under agreements between countries such as the treaty.

Q

In reference to the Korean Supreme Court's ruling, Japan says it betrays the “common sense of international law.” People in the legal profession here dismiss Japan's argument for no compensation responsibility as distorting the real intention of the Supreme Court’s ruling. What's your opinion?

A

What Premier Abe and Japan say is comprehensible to me. Problems had been settled irreversibly under the agreement between the heads of the two administrations, and now Korea’s reversal can be perceived as going against common sense. But this falls short of a correct understanding of international law, or amounts to consciously distorting facts. Under the separation of legal, administrative, and judicial powers, the final interpretation of both treaties and laws is in the hands of the court. As is seen from the Durban Declaration that heralded the liquidation of colonialism as a historical task in 2001 and the “Basic Principles on Victims’ Rights” adopted unanimously in the 2005 U.N. General Assembly, anti-humanitarian acts of abusing human rights are null and void in violation of jus cogens, in terms of international law. Japan’s civic groups and conscientious scholars of international law say the individuals’ claims cannot be forsaken by the state. In short, our Supreme Court’s ruling interpreted international law correctly and applied it. Adding my personal view of this matter as a legal scholar, the state cannot forsake the claim for damages unilaterally without the consent of the victims, as the state’s systematic intervention in the mobilization of forced labor and cruel acts as well as anti-humanitarian abuse of human rights of the forcibly drafted laborers are international crimes violating jus cogens, in terms of international law. Japan’s high-handed intervention in our internal affairs with respect to the execution of the Korean Supreme Court’s ruling cannot be tolerated by law in that (1) it is a direct rebuttal to fundamental values of international law, (2) Japan is concealing, denying, and distorting the fact that the Japanese government intervened systematically and forcibly in the recruitment and management of victims of forced labor, and (3) the basic system of modern, international law prioritizing the value of human rights common to mankind is outrightly denied.

Q

Japan had asked for the creation of an arbitration panel but the Korean government turned it down. Japan claims that this is a violation of international law and the 1965 treaty. Do you think this argument is valid?

A

The referral to arbitration presupposes a voluntary agreement between the contracting states. In other words, the dispute settlement through arbitration is not obligatory, but rather optional. Given that the Korean government has continued to ask the Japanese government to settle this dispute through diplomacy and is doing so now, it is Japan that stands in the way of the progress of the dispute settlement. If opposing the formation of the arbitration committee is in violation of international law, one can say that the Japanese government breached international law first because the Korean government at that time asked for arbitration to solve the problems of comfort women in 2011 and the Japanese government rejected it. Personally, I am in the position of opposing settling the dispute through arbitration, considering that solutions through political compromise are highly likely to be adopted given Japan’s attitude toward the issue of forced labor and the formation of an arbitration committee.

Q

The Japanese government is said to be preparing to file a law suit with the International Court of Justice (ICJ) in relation to Korea’s compensation ruling on forced labor. There are some who say that the referral of the forced labor case to the ICJ would be disadvantageous to us. That’s because of the so-called “Ferrini ruling (1).” What’s your opinion on this?

Footnote (1). In 2004, the Italian Supreme Court ruled in favor of the plaintiff in the compensation lawsuit that Luigi Ferrini, an Italian prisoner of war, had filed against the German government. The German government disobeyed the ruling and took the case to the ICJ, citing the principle of “state immunity” and saying that the actions of a sovereign state cannot be the object of judicial review by another sovereign state. 12 of the 15 ICJ judges took the side of Germany in accordance with the principle of state immunity in February 2012.

A

The Ferrini case is very different from the forced labor incident. The Ferrini case is subject to state immunity but the forced labor case under Japan’s occupation is not subject to state immunity. State immunity in international law is a principle exempting sovereign acts of foreign state institutions and state property from the jurisdiction of domestic courts. The victim in the Ferrini case was a soldier belonging to the state, whereas the victims in the forced labor case were civilians. Unlike the Ferrini case in which the German government was sued, the forced labor case shows that “Korean victims” sued Japanese companies. Therefore, the Ferrini case in which the German government, the state institution, was sued is not subject to the principle of state immunity, but the domestic lawsuits targeting Japanese companies are not subject to the principle.

Q

The Korea-Japan conflict is getting worse each day. It would not be good just to wait and see with the belief that time heals all wounds. What would be the best option?

A

I believe that wasteful conflicts arising from emotional antagonism should be terminated as early as possible. To that end, the peaceful resolution of disputes based on international norms is most urgent. The problem is that Korea and Japan’s positions on compensation claims of victims of forced labor are very different. Yet this could be settled through international law. The dispute over the interpretation of a treaty is a dispute in terms of international law, which can be subject to international law. According to the “Vienna Convention on the Law of Treaties (preamble),” disputes concerning treaties, like other international disputes, should be settled through “universal respect, and observance of, human rights and fundamental freedoms…in conformity with the principles of justice and international law.” Therefore, the dispute over the compensation for forced labor also will have to be settled according to the “principles of universal respect, and observance of, human rights and fundamental freedoms.” It will take a considerable amount of time before a conclusion is reached, whether it is a resolution through the WTO Dispute Settlement Body (DSB) or the ICJ. However, given that multilateral dispute settlement procedures are more advantageous to small nations than bilateral negotiations when it comes to disputes with powerful nations, it will be necessary to choose properly in consideration of the usability of the option, its effectiveness, and the chances of winning the case. But there is a more desirable way to settle this in less time. Just as Germany apologized for the sacrifices of innocent civilians and damages caused by military operations and illegal acts during World War II, and acknowledged its compensation responsibility, Japan would have to offer a sincere apology and compensation for its illegal acts related to the colonial rule. I am convinced that if Japan’s apology leads to the recovery of victims’ honors, an age of peace and reconciliation will open in East Asia and Japan will be reborn as an advanced state respected by the international community. Viewing this from a mid- to long-term perspective, enlightened intellectuals and civil societies of Japan and Korea will have to band together to continue to watch their respective governments honor human dignity. As the effective solution to Japan’s economic retaliation, “practical interest” is just as important as “justification.” I hope that Japan’s export curbs on key materials and components will be exploited as a golden opportunity to enhance the international competitiveness of domestic small- and medium-sized firms.

Q

You have performed a variety of activities as the head of the Korean Society of International Law, the Korean Society of International Economic Law, and the International Law Association. Can you tell us your plan for research and activities as an international law expert?

A

While serving as the chairman of the Korean headquarters of the International Law Association, I founded the “Korean Yearbook of International Law (KYIL),” a professional English journal of international law in October 2015 to introduce Korea’s position on Korea-related international issues and state practices to the international community. In September of this year, KYIL Volume 6 will be published by professor Seong Jae-ho of the Law School at Sungkyunkwan University, who is now fulfilling his duty as the chairman of the Korean headquarters of the KYIL. I have been assuming the role of KYIL’s editor in chief since March of this year, and I have plans to do my best to get KYIL recognized as an esteemed international academic journal by publishing papers on Korea-related international issues, including the compensation for forced labor, written by foreign scholars. As the chairman of the Korean-Chinese Society of Law since March 2018, I have been encouraging law scholars and legal personnel in Korea and China to forge closer relations while ameliorating international academic conferences and academic exchanges. As I have great interest in comparative studies concerning how America, China, and Japan are performing in the war of international laws, I plan to publish a paper on “Japan’s performance methods in the war of international laws” in a professional journal of international law soon.