Court dismisses review on sexual slavery deal

The Korean Constitutional Court determined Friday that a 2015 agreement between Seoul and Tokyo attempting to resolve the issue of Japanese wartime sexual slavery was not subject to its formal review nearly four years after a group of survivors filed a petition questioning the constitutionality of the controversial deal.

In March 2016, a group of 29 survivors and 12 family members representing deceased victims of the Japanese military’s sexual enslavement of girls and young women before and during World War II filed a complaint with the court questioning the constitutionality of the so-called comfort women deal reached under the Park Geun-hye administration. They claimed that the 2015 agreement violated their rights to ownership, knowledge and diplomatic protection in their pursuit to get Japan to take legal responsibility.

The Constitutional Court unanimously dismissed the petition as it found that “the agreement is a political one, and various assessments of the deal belong in the political sphere.”

The court determined that the comfort women deal is not a legally binding treaty, thus recognizing that it does not affect the victims’ basic rights including their legal right to seek compensation.

On Dec. 28, 2015, the Korean and Japanese foreign ministries reached an agreement to resolve the issue of Japanese wartime sexual slavery which included an apology from Tokyo and a 1 billion yen ($9.1 million) fund for the victims. The agreement was “final and irreversible” so long as it is faithfully implemented but provoked an immediate backlash from civic groups and some survivors who felt blindsided by the Korean government and called on Japan to take clearer legal responsibility.

The Constitutional Court said that the 2015 agreement, unlike formal treaties that are signed, was sealed in an oral fashion through press conferences by each country’s foreign ministry. It added that this deal was “a diplomatic agreement and a political deal” as it was “a foreign policy judgement for resolving historical issues and continuing cooperative relations between Korea and Japan.”

The court found that, “As the comfort women victims’ rights and their diplomatic protection from the Korean government cannot be seen as having expired,” their “legal status cannot be seen as having been affected by the relevant deal.”

The Korean Foreign Ministry said in a statement Friday that it “respects” the Constitutional Court decision and that “the government will continue any possible efforts toward restoring the honor and dignity of the Japanese military’s sexual slavery victims and healing their scars.”

The Moon Jae-in administration has called the 2015 deal “deeply flawed,” but in January 2018 said it will not scrap or renegotiate the agreement with Japan taking into consideration diplomatic relations while acknowledging it was not a true resolution to the wartime sexual slavery issue. The Korean government has also dismantled the Tokyo-funded Reconciliation and Healing Foundation established for the victims in 2016.

The Korean Ministry of Foreign Affairs has said that this deal is a diplomatic agreement, not a treaty with legal force, and thus is not subject to a formal review by the Constitutional Court. The Foreign Ministry submitted an opinion to the court on June 2018 recommending the court turn down the petition.

Relations between Korea and Japan have been strained over ongoing historical disputes and a trade spat. Japan since July has implemented restrictions on exports to Korea, widely seen as retaliation against the Korean Supreme Court’s decisions last year ordering Japanese companies to compensate Korean victims of forced labor during World War II.

Yoshihide Suga, Japan’s chief cabinet secretary, ahead of the Constitutional Court decision, said in a press briefing Friday that he would “refrain from commenting on a court case in another country.”

However, he added, “Compensation issues between Korea and Japan including the comfort women issue was resolved through the 1965 claims agreement completely and finally.”

Suga said that “Korea and Japan have confirmed that the comfort women issue was resolved finally and irreversibly through the 2015 bilateral agreement” and added that Tokyo will continue to urge Seoul “to keep promises and faithfully implement the Korea-Japan agreements.”

Tokyo maintains that the 1965 treaty normalizing bilateral relations with Seoul, which provided the Korean government with an economic cooperation fund, settled all compensation matters. But the comfort women issue only came into the public sphere in the early 1990s through the testimonies of survivors and had not been a topic of consideration during the negotiations for the 1965 treaty.

The Constitutional Court in a landmark ruling in 2011 said that the Korean government’s inaction on the comfort women issue was unconstitutional.

The victims’ attorney told reporters after the decision that after all these years it is “regrettable that the Constitutional Court was not able to take the opportunity to do all it can to help address the scars felt by the elderly victims.”

BY SARAH KIM [kim.sarah@joongang.co.kr]