In this article, the author analyses two judgements of the Supreme Court of Korea regarding the payment of compensation to the Korean war time laborers from the view point of public international law. Some of them are said to be forced or deceived at their recruitment by the Japanese private companies. In the judgement of 30 October 2018, the Court adjudicated that the Japanese company were still liable to compensate against the damage caused by such enforcement or deception.

However, the Japanese Government has reacted and protested against this judgement through the diplomatic channel. This is because, according to the Japanese Foreign Ministry, the issue of the compensation to the Korean war time laborers was already legally settled through the Japan-Republic of Korea Basic Relations Treaty and the Japan-Korea Claims Agreement of 1965. As the basic principle of public international law, particularly the basic principle of the law of the treaties, every treaty in force is binding upon the parties to it and must be performed by them in good faith (the principle of “pacta sunt servanda”). At the same time, a party to each treaty may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Therefore, Japan has alleged that the 2018 Judgement were internationally illegal and that the Korean Government were obliged to suspend the execution of the judgement. On the other hand, Moon Jae-in Administration has been supportive to the 2018 Judgement and refused to refer to arbitrate provided in Article 3 (2) of the Claims Agreement. As a result, Japan-Korea relation became dramatically worse and no one can foresee when the bilateral relation would get out from this situation.

This Japanese-Korean confrontation originally caused by the interpretation of the legality of the annexation (colonization) under the 1910 Treaty. Japan has regarded that the 1910 Treaty was concluded legally in light of the legal situation of the beginning of the 20^th century. On the contrary, Korea has never accepted the legality of the 1910 Treaty. Therefore, at the time of the conclusion of the Basic Treaty of 1965, the provision that “[i]t is confirmed that all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void” (italics added) was inserted. This article means that the both parties agreed to disagree about the legality of the 1910 Treaty.

In conclusion, the author points out that, as far as the Moon Administration’s policy on reconsideration of the past history and policies under the military or conservative régime continues, Japan would have to deal with such “historical” issue again and again. At the same time, the author points out that what is needed by the Japanese Government is the calm diplomacy with well-grounded (international) legal opinion.

This special feature is based on the common theme of the FY2019 Autumn Conference (November 30, 2019; NANZAN University): “Conscripted Workers In East Asia: Historical Perceptions, Transitional Justice, and International Law.” The theme for the conference was Japan–South Korea relations, considered to have been at their worst in the post-WWII period. The focus was specifically on issues surrounding conscripted workers’ legal battles. Some of these issues were purely legal, but there were other considerations as well, such as political problems and historical perceptions.

As this special feature is focused on the common theme of the conference, it consists of articles by five people who spoke on the common theme. The paper by Kiyoshi Aoki is written from a perspective rooted in international law. Hideki Okuzono’s paper is an analysis of South Korea’s stance on Japan and the “legitimacy” of the South Korean administration. The paper by Shin Kawashima analyzes the problem from the perspective of transitional justice, using examples from China and Taiwan. Mie Oba‘s contribution investigates the relationship between future historical issues and current diplomatic relations, through a comparison of examples across Southeast Asia. Finally, the paper by Tetsuya Yamada analyzes the legal battle of conscripted workers from the perspective of public international law; investigates the management of Korean reunification, which Japan and South Korea have yet to agree upon; and argues for the utilization of international law to deal with changes in the South Korean administration.

This special feature finds that simple and clear conclusions can not be expected. The aim was to create a platform for discussing historical issues, and modern political issues, in connection with Japan–South Korea relations. These discussions are extremely important for organizing and debating issues relevant to future consideration of East Asian international politics.

In October 2018, the Supreme Court of Korea ordered a Japanese company to pay four Korean men ₩100 million each as compensation for the damages from forced labor during World War II. In the next month, the Supreme Court ordered another Japanese company to provide compensation for the same kind of damages. They are called “Cho-yo-ko [forced laborers] Judgments” in Japan. These judgments have caused the Japanese Government to impose severe diplomatic actions upon Korea, i.e., restrictions of exports from Japan. Thereupon, the Government of Korea has carried out counter diplomatic policies toward Japan. As a result, it is said that the relationship between Japan and Korea has been the worst it has ever been since World War II.

This paper deals with the “Cho-yo-ko Judgments,” which have given rise to this situation. In particular, it examines the Supreme Court judgment in October 2018 and the lower judgments on the case in which the defendant was Nippon Steel Co., because this case has often been reported on by the media and was considered one of the most famous in Japan.

First, after giving the outline of this case, the paper introduces the judgments of the case that were delivered in Japan. Originally, two Korean men among the above plaintiffs brought a case forth in Japan against Nippon Steel Co. and the Japanese Government, but the case was dismissed. After that, the plaintiffs, in which two other Korean men joined in, brought a case forth in Korea against Nippon Steel Co. Although the trial court and the appellate court decided against the plaintiff on the grounds that the Japanese judgment should be recognized under the Korean Civil Procedure Act, in 2012 the Supreme Court overturned the lower court’s decision and sent the case back to Seoul High Court. The Supreme Court refused to recognize the Japanese judgments because of the order public of Korea and continuously held that the individual claims of the Korean men were not settled by the Agreement on the Settlement of Problems concerning Property and Claims and on Economic Co-operation between Japan and the Republic of Korea. Seoul High Court, which the case was remanded back to, ordered the defendant to pay compensation to plaintiffs in 2013. Finally, the Supreme Court confirmed the High Court judgment in 2018.

This paper also deals with Korean judgments. Since there are many legal issues arising in the fields of Public International Law, Private International Law, Constitutional Law, Civil Law, and Commercial Law, it examines some of these legal issues and how the judgments affected the relationship between Japan and Korea.

How should today’s Japan-ROK relations be interpreted which is said the worst in their history? This paper discusses the logic of Moon Jae-in administration from the perspectives of its “justification” and “orthodoxy/legitimacy.”

Under the constraints of the nation’s division and the Cold War, ROK successfully maintained the “justification” of politics as a result of its democratization that took place immediately after the economic development. However, this “justification” was maintained with the lack of political “orthodoxy/legitimacy,” the dilemma of which was inevitably brought to the surface after the end of the Cold War and the democratization.

It was brought to the surface with the movement of going back their history in a way of trying to secure the “orthodoxy/legitimacy” of their politics by liquidating remnants of “pro-Japanese,” the collaborators with the Japanese colonial government. It was Moon Jae-in administration that played the central role of such movement, the administration that was born as a result of the “Candle Revolution,” which led president Park Geun-hye to her impeachment and dismiss.

President Moon Jae-in took it as his mission to establish the “orthodoxy/legitimacy” and to bring ROK back to the state of what the nation needs to be like, by eradicating deeply-rooted evils and wiping out “the pro-Japanese conservatives with vested interests.”

After the liberation, those “pro-Japanese” collaborators were supposed to be condemned, but they were instead protected under the Cold War and turned into a power of pro-Japanese conservatives with vested interests, as the mainstream of the politics and society, by colluding with the authoritarian governments for the sake of anti-communism and economic development. The true liberation and decolonization process, according to the logic, become complete only when successfully having eradicated those pro-Japanese and replaced the mainstream in order to secure the “orthodoxy/legitimacy,” which has been long absent and undiscussed.

Such movement grew into the denial of “ROK lead by conservatives,” taking place with the eradication of the deeply-rooted evils. It was not necessarily targeted at Japan but inevitably involved the issues of comfort women and forced labor as diplomatic problems, which was crucial for Moon Jae-in administration because it stands on the denial of Park Geun-hye. For Moon Jae-in, Japan-ROK normalization of diplomatic relations in 1965 lacked both “justification” and “orthodoxy/legitimacy,” which was nothing but the deeply-rooted evil.

If the eradication of pro-Japanese conservatives is expanded to the denial of ROK by conservatives, and furthermore, if Japan-ROK normalization of diplomatic relations is treated as deeply-rooted evils, it could lead to a political situation that will deny the Japan-ROK relations over the past half century and will call for a drastic reconstruction of the relations from the very beginning.

The main topic of discussion at the 2019 meeting of the Japan Association for Asian Studies (JAAS) was the issue of the movement of “wartime laborers” from the Korean peninsula to Japan proper. Professor Kiyoshi Aoki and Professor Hideki Okuzono gave presentations on this topic, with Professor Tetsuya Yamada, Professor Mie Oba, and the author posing questions and offering comments to the presenters. This paper summarizes the author’s comments and questions at that JAAS meeting, which focused on the importance of considering the connections, commonalities, and differences that exist in how history problems are handled across East Asia.

First, China, Korea, and Vietnam were divided during the Cold War, and each one came to rely on the use of history in order to provide it with some form of legitimacy. History problems in this region were often related to how competing factions in these divided polities sought to justify their rule based on the past. On the Korean Peninsula and across the Taiwan Strait, this historical legitimacy was often connected to resistance activities carried out against Japanese aggression and colonial occupation. However, though both Koreas have continued to assert their relative “historical legitimacy” on this basis through the present day, the Republic of China government on Taiwan began shifting its source of “historical legitimacy” from being based on the creation of a unified China to the creation of an autonomous/independent Taiwan in the 1990s.

Second, the cases of South Korea-Japan and Taiwan-Japan relations share the fact that the dissolution of the Japanese Empire and the manner in which Korea and Taiwan were subsequently decolonized had a significant impact on the construction of their history problems. In both cases, authoritarian governments negotiated with Japan to conclude peace treaties. Their broader populaces, however, were not allowed to play a significant role in such negotiations. This led to the emergence of critiques of these treaties after their democratization, with the appearance of subsequent calls to revisit the postwar settlements that their authoritarian regimes had reached.

Third, democratization in South Korea and the expansion of freedoms in China led to the emergence of new developments in how history problems were handled, with a shift toward a greater focus on individual claims for reparations against Japanese entities. The governments of neighboring countries had abandoned their ability to seek state reparations from Japan as part of the peace treaties they signed in the decades following the end of the war. However, individuals were able to seek private compensation through the Japanese judicial system from the 1980s through the 2000s, which played an important role in the resolution of a number of history problems. In Taiwan, democratization led to “Taiwanization,” creating a historical identity that included aspects of history problems that were different from South Korea’s case. Beginning around 2005, however, the Japanese Supreme Court changed its interpretation of the segment of the 1972 Sino-Japanese Joint Declaration that dealt with reparations, ultimately ruling that private citizens did not have the right to seek compensation from Japanese companies on an individual basis. This marked a significant shift in the role that Japan’s legal system played in resolving history problems.

View PDF for the rest of the abstract