[OUTLOOK]Settle past carefully with Japan

President Roh Moo-hyun’s remarks in his speech commemorating the anniversary of the March 1 Independence Movement on Japan’s “making apologies and compensation” on its past wrongs is creating repercussions. To understand this issue properly, we need to take a legal and historical examination.
Forty years ago when the normalization of diplomatic ties between South Korea and Japan were pursued, the problem of the past was handled in a different context from the customary treatment of illegal acts between countries.
There were three reasons for this. First, Japan would not admit the illegitimacy of its colonial rule on the premise that the Eulsa Treaty of 1905, which deprived Korea of its diplomatic rights, and the Treaty of the Japanese Annexation of Korea in 1910 were valid according to international law.
Second, unlike general international illegal acts, the past history between South Korea and Japan had special circumstances in that wrongdoings were committed by Japan, the ruling country, to Koreans, the colonial subjects. Third, at the time of 1965, South Korea was in a situation where it was in dire need of economic development funds.
Under aforementioned circumstances, our government could not make Japan acknowledge the illegitimacy of its colonial rule. As a result, the two countries came to conclude the issue of compensation on damages comprehensively in the form of claims, instead of claiming for indemnity. This was an insufficient and dissatisfactory solution. But it is not right to repeatedly argue that this was an unequal solution. Liquidation of the past is not a matter of establishing equal relations between South Korea and Japan toward the future, but that of aiming at dealing with unhappy facts of the past.
Clause 1, Article 2 of the Korea-Japan Basic Treaty of 1965 stipulates, “Problems related to property, rights and interests of the people (including corporate persons) of both contracting countries and other claims of both countries and their people are solved completely and finally.” “Complete and final solution” means the problem of liquidation of the past is conclusively solved at the government level and thus the two countries would no longer raise problems concerning the matter. Some argue that although South Korea suggested that claims be allowed based on further revelation of new facts unknown at the time of signing the treaty, the suggestion was not accepted due to Japan’s rejection. This argument needs to be verified.
Regrettably, the idea of claiming compensation at the government level for so-called “comfort women” who were forced to serve for the Japanese soldiers and whose existence Japan denied at the time of normalization of diplomatic ties, can hardly gain support from international law. But in spite of the government’s waiving of the diplomatic right for protection by signing the Korea-Japan Basic Treaty in 1965, individual rights to claim compensation based on domestic laws are still valid.
In light of all this, President Roh’s remarks about compensation can be interpreted as aiming to urge Japan to earnestly reflect on itself and acknowledge its responsibility for past history and emphasize that Japan needs to take more sincere measures. In other words, claiming compensation at the government level or renegotiating the Korea-Japan Basic Treaty is realistically difficult considering the damage on our national credibility in the international community. But his remarks can be seen as an expression of his stance that the problems of the unhappy history will be completely solved only when Japan carries out compensation to individuals, including comfort women and Koreans forced into hard labor, according to its domestic law.
It is somewhat understandable if Mr. Roh’s direct speech and its hardline tone was intended to cope with Japan’s declaration of territorial rights over the Tokto islands and to suggest to Japan that it should build proper South Korea-Japan relations through solving the problem of incomplete colonial compensation. But his manner of raising the problem was rough. Some expressions were rough enough to provoke the pride of Japan.
Also, President Roh’s remarks were contradictory to his previous position that he would not start a diplomatic controversy over historical matters during his term of office. This goes against the principle of estoppel, and depending on South Korea’s further reaction, it can lead to legal responsibility or political controversy (Refer to the International Court of Justice’s judgment on nuclear tests in 1974). Therefore, it is doubtful if his remarks will be followed by Japan’s sincere measure at all.
Now is the time to deal calmly with Japan based on legal principles. Considering the North Korean nuclear problem and the 40th anniversary of normalization of diplomatic relations with Japan, cooperation based on the principles of good neighborly relations and mutual respect for sovereignty is urgently required as they are clearly stated in the preamble of the Korea-Japan Basic Treaty.
If we fail to build bilateral relations because of the past, it would be unfortunate for both countries and their people as well. We should handle Mr. Roh’s remarks on compensation wisely.

* The writer is a professor of law at Chung Ang University. Translation by the JoongAng Daily staff.

by Jhe Seong-ho