뉴스레터

The 75th anniversary of the National Liberation Day in the midst of a global unexplained crisis of COVID-19. In that it is being combined with Japan's annexation of Korea 110 years ago, we will reconsider the historical challenges that are given to us today. This is because it is a question that history as ‘an unending dialogue between the present and the past’ preached by the historian E. H. Carr, who represents the 20th century, is also a question to be asked in this era, and it is a task to be illuminated in the dimension of Justice of History through the historical reflection of ‘Challenge and Response’ advocated by A. J. Toynbee.

As you know, the wheels of history have been constantly moving forward. But when the mechanism of justice inherent in history did not work, humans had to repeat the terrible sacrifice. Even now, it is still not free from the historical conflicts caused by the grim past, the legacy of the 20th century. As criticized by The Japanese Society for History Studies, in 2015, On the 70th anniversary of the end of the war, Speeches and Statements by the Prime Minister Shinzo Abe did not face and reflect on the history of colonial rule and aggression. Rather, Japan expressed a self-righteous historical perception, and repeated the tyranny of reproducing perpetration.

So what is the historical task of this era, which is still in progress? The Japanese government uses 'deviation from post-war system' and 'historical revisionism' as the basic ideology or direction of policy. They argue for the historical distortion frame of ‘The colonial rule of 2010 is legal’ and ‘The Korea-Japan Agreement of 1965 is completed’. Therefore, the task given to us will be to identify historical truths and to seek a community of peace through the implementation of historical justice.

In this regard, Korean and Japanese scholars with the same perspective presented ‘the Joint Declaration of Intellectuals from Korea and Japan(2010)’(hereinafter referred to as 'Declaration') in the course of international conference and joint research on '100 Years of the Korea-Japan Annexation Treaty' and in 2015 on 'The Korea-Japan Agreement 50 Years History'. This is the East Asian version of the 'Durban Declaration(2001)', which contains 'the historical end of colonialism', and it is necessary to establish the right history and seek historical reconciliation. In response, the Constitutional Court of Korea made a proactive ruling in 2011, and The Supreme Court of Korea responded with a ruling based on the legal definition of historical truth in 2018 following the quashing of 2012.

The Background of Joint Declaration of Intellectuals from Korea and Japan

In 2005, the Right Historical Establishment Planning Team was launched in Cheongwadae, the predecessor of the NAHF. It was the 100th anniversary of the Eulsa Treaty and the 60th anniversary of liberation, and it was the first year of Korea-Japan friendship for 40 years of diplomatic relations between Korea and Japan. Korea and Japan co-hosted the World Cup in 2002, so good neighborly relations between the two countries were maintained. Therefore, many people expected the Japanese government to reflect and apologize for the past history beyond the Murayama discourse announced in 1995 for the 50th anniversary of the end of the war, and to compensate for the start of a true partnership.

However, Japan declared ‘Takeshima Day’ through Shimane Prefecture and expressed its historical awareness that it would commemorate and inherit the invasion of Korea’s Sovereignty over Dokdo 100 years ago. This behavior of Japan at the time of the 100th anniversary of the Eulsa Treaty was to suggest that the transition period of historical reconciliation between the two countries will drift in the future.

2010 was the year to identify the essential causes of historical conflicts between Korea and Japan, to recognize the solution of problems as a historical task, and to establish them as a calling for justice. It meant that at the time of the 100th anniversary of the Korea-Japan Annexation Treaty, we should establish the right history, make a true historical reconciliation and build a peace community in Northeast Asia.

In February and July 2009, the Korean High Court approved the ruling of the Supreme Court of Japan in 2007(Determining the Loss of the plaintiff in the Litigation for Damages in Japan), and ruled the plaintiffs‘ loss in the appeal for compensation for the forced mobilization of Japan. The Korean High Court accepted the ruling of the Supreme Court of Japan in accordance with the law of respect for 'effect of excluding further litigation'. This is based on the Japanese government's claim that 'The colonial rule is legal' and 'The Korea-Japan Agreement is completed'. If the Supreme Court confirms the ruling of the original trial, it was a desperate situation in which the colonial rule of Japan could be legally approved within 100 years of the conclusion of the Korea-Japan Annexation Treaty due to the ruling of the Korean judiciary.

In this background, scholars of Korea and Japan who tried to realize the historical truth and international legal justice of the Korea-Japan Annexation Treaty in 1910 came to identify 'the international legal invalidation and illegality of the Korea-Japan Annexation Treaty' on June 22, 2009. This led to a joint statement that began with 214 people on May 10, 2010, and 1,139 Korean and Japanese intellectuals declared 'the Korea-Japan Annexation Treaty in 1910 is null and void' on July 28.

The Impact of Joint Declaration on the Judgment of Korean Judiciary

The Joint Declaration reveals that not only the preamble of the Korea-Japan Annexation Treaty but also the text is false, and that there are significant flaws and defects in the procedures and forms of the treaty. As the process of Japan's Annexation of Korea is unjust and unfair, the Korea-Japan Annexation Treaty also declared unjust and unfair. And the contents of Article 2 of ‘The Treaty on Basic Relations between the Republic of Korea and Japan in 1965’ are as follows. ‘It is confirmed that all treatments or arrangements included between the Empire of Korea and the Empire of Japan on or before August 22, 1910 are ready null and void’. In this regard, intellectuals of Korea and Japan emphasized that the interpretation of the Korean side, which was originally illegal and invalid, should be accepted as a common view of both countries.

In addition, international law academia has made various efforts on anti-humanitarian crimes and colonial crimes. The intellectuals have all advocated that we should fundamentally reflect on aggression, annexation, and the history of colonial rule. This joint statement influenced the Constitutional Court to decide that the government’s omission was unconstitutional in the right to claim compensation by the ‘Sexual slavery victims for the Japanese imperial army’. It also marks the beginning of the Supreme Court’s 2012 cancellation of the forced mobilization damage case and the compensation ruling for 2018.

In 2011, the Constitutional Court said, “The affirmative duty of the state is a constitutional duty to restore the dignity and value of the damaged human beings of the victims who have been forced to be ‘Sexual slavery victims’ during the Japanese colonial period and have lived a long tragic life in the state of human dignity and value being destroyed.” And in 2012, the Supreme Court ruled that “a claim for damages due to illegal acts directly related to colonial rule, such as anti-humanitarian illegal acts involving Japanese state power, was not included in ‘the Agreement on the Settlement of Problem concerning Property and Claims and the Economic Cooperation between the Republic of Korea and Japan in 1965’.” This ruling confirms the Japanese responsibility for colonial rule, guarantees human rights, which is the universal value of mankind, and pursues peace and historical justice.

Japan's Export Regulations at Antipode of the Joint Declaration

The key to the Joint Declaration is the nullification of the Korea-Japan Annexation Treaty. This is at the heart of the International Human Rights Act and is based on ‘Basic Principles on the Right to a Remedy and Reparation for Victims’, unanimously adopted at the 2005 United Nations General Assembly. The Korean Supreme Court’s ruling of 2018 is a final authentic intervention for the scope and subject of the Agreement on the Settlement of Problem concerning Property and Claims and the Economic Cooperation between the Republic of Korea and Japan in 1965 and is a recognition of Japanese companies’ liability for compensation. Since then, the Abe regime has regulated exports of three items to Korea, including fluoride, a key material for semiconductors and displays, as well as a strategic item. They also argued that Catch-All Controls had insufficient legal grounds under Korean law and even voted on a bill to exclude Korea from the white list. Japan does not face the history of the perpetrator, but expands and reproduces the tyranny of the perpetrator with a self-righteous historical awareness. And they chose to provoke their counterparts with export regulations until they violated international trade laws.

The Japanese government, which cannot put the ruling of the Supreme Court of Korea as a reason for export regulation on key high-tech materials, is only presented by Article 21 of General Agreement on Tariffs and Trade(GATT): ‘Export Control’, the reason for the exception of security. However, Korea is a country that operates Catch-All Controls more strictly than Japan. The Institute for Science and International Security(ISIS) in the United States ranks the Export Control of 200 countries around the world. According to this, Korea's strategic items management ranking is 17th, and Japan is 36th among all countries. Korea is 19 steps ahead of Japan. However, Japan, on the pretext of security, excludes Korea from the white list, insists that there is a problem with strategic items management in Korea, and threatens Korea with economic sanctions. And on the other hand, they insist on extend GISOMIA, a system that shares military information between Korea and Japan. This is a considerable contradiction.

Japan's export regulation measures violated three clauses of the WTO: First, Article 11 (1) of GATT stipulates that exports should not be prohibited or restricted through permission. Japan's regulation of three major high-tech materials exports to Korea violated this clause. Second, Article 1 (1) of GATT prohibits discrimination against imported goods and domestic products. In the global trade order, ‘most favored nation treatment’ is the basic principle. Therefore, discriminating against Korea in relation to exporting key high-tech materials is a violation of this clause. Third, Japan violates Article 10 (3) of GATT. This provision stipulates that each contracting state must observe uniform, fair and reasonable customs clearance and administrative procedures. However, the Japanese government argues that arbitrary export regulations are justified, saying that Korea’s strategic items management system is poor to avoid being sued by the WTO from Korea. This is also a typical violation of the clause.

The liquidation of colonialism and The Task of Historical Justice

The policy of the Abe regime is to revise Japan's peace constitution and return to a war-capable country. And instead of reflecting on past history, they chose historical revisionism. However, the Korean Supreme Court’s ruling on forced mobilization blocked Japan’s historical distortion frame of ‘The colonial rule is legal’ and ‘The Korea-Japan Agreement is completed’. It is based on the victim-centered approach of 'Basic Principles on the Right to a Remedy and Reparation for Victims' in 2005 and ‘the Joint Declaration’ in 2010. Japan's insistence on the ruling by the Korean Supreme Court is contrary to the victim-centered approach under the International Human Rights Act.

In 2014, Japan demanded that Korea, which regulates Fukushima fishery products imports, withdraw regulations at a one-point meeting of the two countries' director-level talks on the sexual slavery victims issue. And they have a precedent for filing a lawsuit against the WTO on the issue and then losing it in 2019. Japan began to regulate exports of core materials on this extension, targeting the Korean semiconductor and display industries. Japan has chosen to violate international trade law in response to the human rights issue of Japanese colonial victims while collapsing the global value chain. A year later, the two countries’ media reported that “Japan had been attacked by Japan.” and “Japan had woken up Korea, which was sleeping.” At this point we see Japan repeating its historical mistakes. And it should be noted that this is the same as the ‘beggar-my-neighbor policy’ pursued by Japan before World War II. This is why we need to redefine international human rights law from the 'nationalism' philosophy, which was the foundation of Japanese colonial rule and the basis of imperialist invasion. It is formed by reflection that the invasion and atrocities of Japan and Germany were extreme disregard and infringement of human dignity. And this is evidence that Japan overlooks international human rights laws.

The perpetrator constantly expands and reproduces the perpetrator's logic. The victim then needs to raise the issue based on the historical perception of the Joint Declaration, in accordance with the International Human Rights Act, which aims to create a human rights, justice and peaceful community, and the victim-centered approach unanimously adopted by the UN General Assembly. Korea is a victim of Japanese colonialism and a central axis of the peace community in Northeast Asia. The problems of our country should be solved based on justice under the International Human Rights Act. The meaning given to us is the 'Durban Declaration' of 2001, which declared the historical end of the 'colonialism' of the Western Empire, and the 'The Joint Declaration of Intellectuals from Korea and Japan' of 2010, which saw the liquidation of East Asian colonialism as the starting point of peace and cooperation. To reveal the historical truth about this: it is a question that history asks us, and a task of historical justice that we must respond with historical reflection.