Root cause of Korea-Japan dispute
The root of the current feud between Seoul and Tokyo is the 1965 Korea-Japan Treaty that followed the 1951 Treaty of Peace with Japan. The issue exploded, when the Supreme Court of Korea reaffirmed individual rights to sue Japanese firms for compensation in October 2018, and Japan imposed export restrictions on key materials for Korean firms in July this year.
Rather than being emotional, people in both countries need to remain reasonable, staying away from politicians whose primary interests appear to be turning the controversy to their domestic political advantages.
My write-up in this article is based on my publication titled “The Saga of Jeong v. Onoda Cement” that was published in the December 2007 issue of the International Journal of Korean History.
The controversy originates from the Treaty of Peace with Japan, signed Sept. 8, 1951, in San Francisco, which was intended to settle claims against Japan’s role during World War II.
Article 4-(a) of the treaty follows Article 2-(a) of the treaty that spells out Japan’s obligation to Korea in general terms. Article 2-(a) reads in part: “Japan recognizing the independence of Korea, renounces all rights, titles and claims to Korea.”
Article 4-(a) then states that disputed issues between Japan and Korea “shall be the subject of special arrangements,” allowing Japan and Korea to resolve their disputes through separate agreements. This led to the 1965 Korea-Japan Treaty, which was signed June 22, 1965. The key issue in the treaty is whether there is a waiver or bar to individual claims through lawsuits. Interpretations vary depending on which side you are on.
Professor of international law Kim Chang-rok at Pusan National University in Korea claims that “Any waiver in the 1965 agreement extended only to government to government claims and did not affect individual claims or the rights of individuals to bring lawsuits. This restricted the rights of Japan and Korea to make claims on behalf of their nationals but not the rights of those nationals to make claims on their own behalf in court.” (Jeong v. Onoda Cement, the Superior Court of the State of California for the County of Los Angeles, 2001, p. 9)
Professor Iwasawa, who is an expert on Japanese law and Japanese war compensation issues, states that “the 1965 Japan-Korea Agreement implemented Article 4-(a) of the 1951 Peace Treaty, settling completely and finally all problems concerning property, rights, and interests of the two countries and their nationals and all claims between the two countries and their nationals.” (Jeong v. Onoda Cement, 2001, p. 10)
Iwasawa further states that the position that the agreement permanently extinguished claims by individuals was confirmed by its 1965 official publication, “The Explanation of the Treaty and Agreements Between the Republic of Korea and Japan.”
Recent claims by Korean victims of the Japanese occupation relate directly to Article 2-(1) of the 1965 Japan-Korea Agreement, which did not explicitly spell out the rights of Korea’s individual victims. This is because the agreement was more a political compromise between the two governments in the 1960s than a document settling disputes and claims that arose from Japan’s occupation of Korea.
Some scholars in Korea point out that for reasons unknown to the public, the Korean government agreed to limit the rights of individual victims to pursue payments for personal damages through the enactment of the 1971 law that spelled out how individuals in Korea could request payment from Japan. (Kang Chang-il, “The Issue of Settling Past Damages and the Korea-Japan Agreement,” in the Center for Historical Truth and Justice, reviewing the Korea-Japan Agreement, 1995, p. 295)
On Oct. 25 25, 1996, 106 members of Korea’s National Assembly submitted a resolution that called for nullifying the 1965 Japan-Korea Treaty and preparing a new agreement. A new agreement has not been undertaken, since Japan saw little, if any, benefit from returning to the negotiation table.
The view that individual rights to sue Japan are all resolved by the 1965 Korea-Japan Treaty has also been expressed by the ad hoc committee on the compensation issue that was appointed by former President Roh Moo-hyun about 10 years ago. The committee stated that, other than limited exceptions, all individual rights for compensation relating to forced labor had been resolved by the 1965 Korea-Japan Treaty.
To summarize, current political and judicial leaders in Korea support individual rights to sue Japanese companies, while Japan claims all those rights were have ended in the 1965 agreement. Japan wants an international court to make a final decision on the issue, while Korea opposes the idea.
Isn’t this about time for Korea to act with confidence and move on, rather than dwelling on the past and wasting precious time and resources on blaming Japan?
Former Allied nations such as Canada, Great Britain, Australia, and New Zealand unilaterally established a compensation fund for their veterans who were POWs under the Japanese military. The anti-Japan movement, prompted by the Korean government, is costing Korea many more times the likely costs for new Korean plaintiffs to sue Japanese firms. Does this make sense to you?