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South Korean Judiciary Shakes Japan-South Korea Relations* This article was translated by JIIA from Japanese into English as part of a research project to promote academic studies on the international circumstances in the Asia-Pacific. JIIA takes full responsibility for the translation of this article. To obtain permission to use this article beyond the scope of your personal use and research, please contact JIIA by e-mail ([email protected]) Citation: International Circumstances in the Asia-Pacific Series, Japan Digital Library (March 2016), http://www2.jiia.or.jp/en/digital_library/korean_peninsula.php Series: 2015—Analysis and Outlook for Japan-South Korea Relations Examining Japan-South Korea Relations at 50th Anniversary of Diplomatic Normalization (4) South Korean Judiciary Shakes Japan-South Korea Relations* Hideki Okuzono** I. Japan-South Korea Relations at the Lowest Point since Diplomatic Normali- zation Since normalizing their diplomatic relations in 1965, Japan and South Korea have repeatedly experi- enced rough patches in their bilateral relations due to historical, territorial and other issues. However, in all instances, centripetal forces generated by common interests in such areas as national security and the economy were strong enough to outweigh the centrifugal forces that tugged at the two nations. Consequently, while occasionally experiencing significant shaking, bilateral relations always gradually returned to their original trajectory. However, Japan-South Korea relations cooled rapidly after then-President Lee Myung-bak set foot on Takeshima Island (referred to as “Dokdo” in South Korea) on August 10, 2012. Subsequently, both sides set off centrifugal forces that sent bilateral relations into a serious slump that did not allow centrip- etal forces to function as before. While it was hoped the birth of new administrations in both countries would provide an opportunity for pressing the “re-set button” in bilateral relations, the outcome has dashed such expectations. In the nine months since taking office, President Park Geun-hye has actively engaged in summit talks with such major countries as the United States, China, the European Union and Russia. But President Park Geun-hye has adamantly refused to hold talks with Prime Minister Shinzo Abe of neighboring Japan on grounds of differences in the “understanding of history.” Time and again, it has been seen how friction between the two countries can fan anti-Japanese sen- timents in South Korea, which can in turn encourage the espousal of extreme positions within the * This article was originally published as 奥薗秀樹「韓国司法が揺るがす日韓関係」 (“Kankoku Shihou ga Yurugasu Nikkan Kankei”) 『東亜』 第559号、 2014年1月、 96-105頁 (“Toua” [East Asia] no.559, 96-105, January 2014). ** Since 2010, Mr. Okuzono has been Associate Professor at the Graduate School of International Relations and Senior Fellow at the Center for Korean Studies at the University of Shizuoka. Prior to that, he studied in the master’s course of the department of political science of the Graduate School of Yonsei University and was Associate Professor of the International Studies Division of Donseo University, Korea. He received his master’s degree from the Graduate School of Social Sciences of Hiroshima University and was a correspondent for the Japan Broadcasting Corporation before returning to academia. His series of articles on the general elections and presidential election in South Korea appeared on the website of the Kazankai between June 2011 and January 2014. 1 movement. However, the visit of then-President Lee Myung-bak to Takeshima followed by the persistent repetition of blatant and strident anti-Japanese statements by President Park Geun-hye to both domestic and international audiences has invited a rapid deterioration of Japanese sentiments toward South Korea. Japanese sentiments have steadily moved from “anti” to “hate” and finally to the current state of “loath- ing” of South Korea, leading to the conclusion that Japan-South Korea relations are now at their lowest point since the normalization of bilateral diplomatic relations. II. Judicial Decisions in South Korea Structuralize Japan-South Korea Conflict There is no debate that the landing of then-President Lee Myung-bak on Takeshima triggered the emo- tionally charged conflict between Japan and South Korea. However, the discord that followed on such issues as the understanding of history and settlement of the past has clearly become structuralized. Differences in interpretation of the Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Co-operation between Japan and the Republic of Korea (“Claims Settlement Agreement”), which stands at the center of the 1965 normalization of diplomatic relations between the two countries, stands at the pivotal point of this discord, while this discord is driven by South Korea’s judicial decisions that at times prompt changes in the exercise of power and official statements of the administration in power. Former President Lee Myung-bak has explained that his decision to visit Takeshima was influenced by the refusal of Prime Minister Noda of the Democratic Party of Japan to actively engage in efforts to resolve the comfort women problem.1 But the undeniable truth is that, prior to this, the Lee Myung-bak Administration had left this issue untouched and had brought it up in its diplomatic exchange with Japan only after the Constitutional Court of Korea rendered a decision in August 2011 to the effect that the government’s omission of action on the issue was unconstitutional. Furthermore, in its ruling of May 2012, the Supreme Court of Korea upheld the right of individuals drafted to work in Japan’s wartime factories to sue for compensation. Following this decision, a number of South Korean courts have ordered Japanese companies to compensate the former drafted workers. By threatening to render the Claims Settlement Agreement meaningless, these rulings carry the risk of destabilizing the foundation of bilat- eral relations. It can thus be said that bilateral friction is being structuralized by South Korean judicial decisions. III. Interpretations of the Claims Settlement Agreement and Problems of Postwar Disposal At the root of the judicial decisions that are shaking Japan-South Korea relations are differences in inter- pretation of the Claims Settlement Agreement and the scope of this agreement. The Japanese government takes the position that all property and claims issues with South Korea were resolved with the signing of the Claims Settlement Agreement. Article 2 paragraph 1 of the Claims Settlement Agreement does in fact state that the signatories confirm that problems concerning claims between the two countries and between their peoples “have been settled completely and finally.” Moreover, under Paragraph 2 of the Agreed Minutes to the Agreement on the Settlement of Problems Concerning Property and Claims and on the Economic Co-operation between Japan and the Republic of Korea, the signatories confirm that problems that have been settled completely and finally include all claims falling under the eight items contained in the Outline of the Claims of the Republic of Korea against Japan sub- mitted by South Korea, and that “no contention can be made” with respect to these claims. And Item 5 of the Outline of the Claims of the Republic of Korea against Japan explicitly mentions “amounts receivable, 2 compensation, and other rights of claim of drafted South Korean workers.” Responding to this, the government of South Korea under the Roh Moo-hyun Administration acted in 2005 to release the diplomatic documents related to treaties between Japan and South Korea, at which time a Joint Private-Government Committee on Measures Pursuant to the Publication of Docu- ments on South Korea-Japan Talks was formed. The Committee subsequently published its views on the scope of the legal effectiveness of the Claims Settlement Agreement and policies of government mea- sures related to this matter.2 The Committee concluded that several issues did not come under the scope of the Claims Settlement Agreement, including the problems of the Japanese military’s comfort women, Korean nationals in Sakhalin, and atomic-bomb victims. The Committee argued that these could not be deemed to have been resolved and that the Japanese government remained legally liable in these matters. On the other hand, the Committee concluded that compensation for individuals forced into labor was comprehensively included in grants-in-aid received from Japan. It then stated that, notwithstanding its moral obligation, the government of South Korea in some respects cannot be said to have allotted an adequate amount of the grants received to the compensation of such individuals. Subsequent to this decision, a special law was enacted based on this understanding, and assistance was provided to claimants through payments of gratuities, the settlement of receivables and provision of medical support. IV. Two Judicial Decisions that Shook Japan-South Korea Relations Two specific rulings handed down by South Korean courts will be examined, keeping in mind the devel- opments outlined above. First among these rulings is the decision rendered by the Constitutional Court of Korea on August 30, 2011 in response to a constitutional appeal regarding the right of claim of former comfort women who served the Japanese military, and atomic-bomb victims. In its ruling, the Court concluded that, notwithstanding the difference in interpretation of the Claims Settlement Agreement that existed between Japan and South Korea, the government’s failure to follow established procedures for dispute resolution constituted omission of action on the part of the government of South Korea, and that this in turn violated the basic rights of citizens as ensured under the Constitution. As such, the ruling deter- mined the inaction of the government to be unconstitutional.3 The government responded to this ruling by repeatedly requesting the Japanese government to engage in discussions, including the conveyance of a verbal note proposing the holding of bilateral consultations. The Japanese government has rejected all such overtures on the grounds that all related problems have already been resolved.
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