50 years after Korea-Japan pact, some issues won’t go away
Overturning previous rulings by lower courts, the Supreme Court ordered Japan’s Mitsubishi Heavy Industries and Nippon Steel Corporation to compensate a group of nine Koreans who were conscripted by Japan for their unpaid salaries and suffering during Japan’s colonial rule.
Reparations to victims of Japan’s colonial misdeeds and the Japanese government’s refusal to officially apologize and accept legal liability for its brutal colonization of Korea remain a poisonous element in the two countries’ diplomatic relations, which marked its 50th anniversary Monday.
Seoul and Tokyo signed the Treaty on the Basic Relations between Korea and Japan on June 22, 1965, after 14 years and seven rounds of negotiations, normalizing relations 20 years after the end of colonization. They signed four additional documents: Agreement on Fisheries; Agreement Concerning Cultural Assets and Cultural Cooperation; Agreement Concerning the Legal Status and Treatment of the Korean Residents in Japan; and Agreement on the Settlement of Problems concerning Property and Claims and the Economic Cooperation Between Korea and Japan.
In spite of domestic protests in Korea, the treaty was ratified in August (in the absence of opposition lawmakers) and in December in the Japanese Diet, entering into force Dec. 18, 1965, under the governments of President Park Chung Hee and Prime Minister Eisaku Sato. This treaty is largely recognized as a political deal. Korea and Japan had to deal with very grave issues amid pressure from Washington in the Cold War era. Tokyo had entered into a period of economic boom after occupation by Allied Forces following its World War II defeat and desired to quickly regain international standing. Seoul was in dire need of economic help.
Because of the circumstances of the negotiation, the 1965 treaty failed to address some issues, most notably Japan’s liability for colonial rule. There were also issues that were not in the public sphere at that time, namely the women forced into sexual slavery by the Japanese Imperial Army. Those women, euphemistically called comfort women, were trying to get over their ordeals and lead normal lives. They didn’t want their pasts dredged up.
Other issues included Koreans exposed to the atomic bombings of Hiroshima and Nagasaki, and ethnic Koreans forced to work on Sakhalin Island in Russia, a former Japanese territory.
Sovereignty over Korea’s easternmost islets, Dokdo, which Japan calls Takeshima and also claims, also continues to be contested to this day. In the negotiations in the 1960s, the islets were a much-disputed issue. But the two sides agreed to disagree and the final treaty made no mention of Dokdo - kicking the issue into the future.
The overarching controversy is whether the 1965 Claims Agreement settled all issues of compensation to victims of colonial rule once and for all, as Tokyo says it does, including individuals’ rights to file claims for damages.
Korea received a total of $800 million from Japan, including $300 million in grants, $200 million in Japanese government loans - both specified in the Claims Agreement - and another $300 million in private commercial loans. The final amount followed a secret agreement between the Korean Central Intelligence Agency (KCIA) Director Kim Jong-pil, President Park Chung Hee’s right-hand man, and Japan’s Foreign Minister Masayoshi Ohira in 1962. Both men went on to become prime ministers.
Legal scholars have argued that the 1965 treaty did not settle matters once and for all, and they debate the murky language of the Claims Agreement, which leaves questions as to how much Japan’s economic grants and loans were compensation for colonial rule.
Furthermore, the rights of individuals to file claims for damages were not waived by the agreement - a concept that is not only backed by the Korean Supreme Court ruling of 2012 but by the Japanese foreign minister in 1965 at the time of its ratification.
On Aug. 22, 1910, pro-Japanese Korean Prime Minister Lee Wan-yong and Japanese Governor General of Korea Terauchi Masatake signed the controversy-ridden annexation treaty ceding the Korean Peninsula to Japan.
In the 1965 Treaty, the two sides agreed that “all treaties or agreements concluded between the Empire of Korea and the Empire of Japan on or before Aug. 22, 1910, are already null and void.”
The Japanese government has made verbal apologies but has not fundamentally acknowledged the illegal and criminal nature of its colonial rule over Korea.
In many ways, the wording of the 1965 Agreement on the Settlement of Problems Concerning Property and Claims and the Economic Cooperation Between Korea and Japan was left ambiguous on purpose as Seoul and Tokyo rushed to conclude negotiations and normalize bilateral relations.
The big question is whether Japan’s economic grants specified in the agreement covered colonial reparations and settled the claims issue completely and finally, or whether it was economic aid to the Korean government to build the country’s infrastructure.
Under Article 1, Clause 1 of the 1965 Claims Agreement, Japan was to supply Korea with a $300 million grant in the form of Japanese products and services within 10 years of the agreement taking force, and $200 million in long-term and low-interest loans also within 10 years from the Overseas Economic Cooperation Fund of Japan. It stated that the “supply and loans must serve the economic development of the Republic of Korea.”
The much-discussed Article 2 goes on to stipulate: “Problems concerning property, rights, and interests of the two High Contracting Parties and their peoples and the claims between the High Contracting Parties and between their peoples, including those stipulated in Article IV(a) of the Peace Treaty with Japan signed at the city of San Francisco on Sept. 8, 1951, have been settled completely and finally.”
This article is frequently cited by the Japanese government to support the notion that all compensation issues were settled in 1965.
Article 3, however, leaves the door open for future negotiations by stating that “any dispute .?.?. concerning the interpretation or the implementation of this agreement shall be settled primarily through diplomatic channels.”
Korean legal scholars highlight that the grants and loans provided by the Japanese government under Article 1 are not directly linked to the compensation listed under Article 2.
In other words, the provision of $500 million can be considered as a gesture of economic cooperation.
“Article 2 is disjointed from Article 1 and does not cover Japan’s liabilities for its colonial rule,” said Doh See-hwan, a research fellow at the Seoul-based Northeast Asian History Foundation. “Nowhere in the text can you find any acknowledgement of Japan’s responsibility for its colonial rule.”
Doh, who served as a senior researcher for the Presidential Commission on True History for Peace in Northeast Asia from 2005 to 2006, continued, “The Japanese government believes its coerced annexation of Korea in 1910 was concluded by the signing of a legitimate annexation treaty which only became invalid at the end of the war, thereby making Japanese occupation of and colonial rule over Korea lawful. But we need to question the legality of Japan’s coerced annexation in itself. The crimes against humanity linked with its colonial rule were not addressed in the 1965 Basic Treaty, which is why it is imperative for scholars to review the issue today under modern and international law.”
Japan has denied its liability to pay compensation for any crimes against humanity by its military or government, or those directly associated with its 35-year colonial rule.
It insists all claims were settled fully in the 1965 Claims Agreement, including the problem of whether the right of the plaintiffs to file individual suits has been waived.
Legal experts say that under modern law, a state should not be able to waive a citizen’s individual right to raise a claim without the individual’s consent.
Disclosure of documents
The claims issue gained more momentum in the past quarter-century, especially when the issue of wartime sexual slavery gained international attention in the 1990s, leading to the famous 1993 Kono Statement and 1995 Murayama Statement. In 1993, Japanese Chief-Cabinet Secretary Yohei Kono for the first time acknowledged that the imperial military had coerced Asian women into sexual slavery during World War II and apologized for the atrocities. Two years later, Prime Minister Tomiichi Murayama made a landmark apology for Japan’s colonial rule and aggression.
More claims cases from colonial rule victims were raised in Korean, Japanese and American courts especially in recent years.
The Korean government disclosed in 2005 diplomatic documents from the Korea-Japan treaty negotiation process and they shed further light on what was and wasn’t covered by the agreement. Before 2005, the Korean government accepted that the claims issue was resolved with the 1965 agreement.
On Jan. 5, 2005, the Korean government declassified over 1,000 pages of documents and compensation details from the Korea-Japan negotiations. On Aug. 26, 2005, 157 volumes, or 36,000 pages, of documents were released to the public.
Thus, it became a lot clearer what was and wasn’t covered in the 1965 talks.
During the negotiation process between the two countries, the two sides struggled to tackle issues such as fishing boundaries and sovereignty over Dokdo. The negotiations went in depth to deal with economic cooperation, return of cultural properties, fisheries and repatriation of North Koreans.
Conscripted workers was confirmed as one of the items discussed in these negotiations but it became clear that other victims of colonial rule such as comfort women and Korean atomic bomb survivors were not mentioned in the dealings, and hence could not have been covered under the settlement plan.
The Japanese government has refused full access to its side of the diplomatic exchanges, however.
On Oct. 2, 2006, a Japanese civil activist group filed a lawsuit against the Japanese Foreign Ministry demanding the release of the diplomatic documents between Korea and Japan. By November 2008, it had released some 60,000 pages of documents, and it partially released the remaining documents in April 2014. However, many documents were erased, so there has yet to be complete access.
The Korean government agrees with Japan that claims of conscripted laborers were partially settled through the 1965 Basic Treaty. But it believes there was no settlement for the comfort women, atomic bomb victims and ethnic Koreans in Sakhalin, Russia.
There were an estimated 780,000 Korean conscripted workers during Japan’s colonial rule, most of whom are dead now. The Korean government provided compensation of 300,000 won (now around $255) to around 8,000 victims of forced labor and their families in 1975. This amount was criticized for being too small, and the registration period was considered too short and poorly publicized. Further compensation has been paid by the Korean government since 2010.
“Conscripted workers were included as one of eight items in negotiations between Korea and Japan,” said international law expert Lee Jang-hie, professor emeritus at the Hankuk University of Foreign Studies School of Law. “However, we became aware in 2005 that other issues, such as the victims of sexual slavery, atomic bomb victims and Sakhalin, were not.”
“Diplomatic documents are customarily revealed after 30 years,” Lee said. “But the Japanese government seems to be avoiding complete disclosure of its side of the diplomatic documents because doing so may reveal even more starkly what was encompassed in the 1965 treaty negotiations and what was not.”
Dollar amount fixed
On Nov. 12, 1962, a breakthrough on the amount of a financial reparation package for Korea was worked out between KCIA Director Kim and Foreign Minister Ohira. The figures were jotted down on a note, which was disclosed to the public among other declassified diplomatic documents released by the Korean government in 2005.
The pivotal Kim-Ohira note read: “$300 million in compensation, $200 million in loans and grants in the form of cooperative funds and another set of $100 million from an export-import bank in addition to other contributions from the private sector.” The final amount mentioned in the memo was $800 million.
Kim said in a recent interview with the JoongAng Ilbo that when he went into the negotiations, Park Chung Hee had told him to get $800 million, saying, “That money would enable us to build a steel maker and a complex factory line.” At that time, Prime Minister Hayato Ikeda was thinking more along the lines of $30 million.
The comfort women issue was one that was not touched upon during the negotiations, Kim has revealed.
With funds from Japan, Korea established in 1968 the Pohang Iron and Steel Company, now Posco, which cost $130 million to build and ended up playing a pivotal role in Korea’s economic growth.
Korea began construction of the Gyeongbu Expressway in 1968 and the Soyang Dam in 1967 with the help of the settlement money, vital building blocks of the Miracle on the Han River.
“The Japanese government probably is refusing to reveal the diplomatic documents because revealing it would clarify what was stipulated and what was not under the 1965 agreement,” said Lee, “which will make its claims that all issues were settled in 1965 more difficult to support.”
Lee went on to point out that the 1965 Claims Agreement between Korea and Japan is essentially not an agreement to claim damages for Japanese colonialism, but rather “an agreement to address the financial and civil claims and obligation between the two countries as stipulated by the San Francisco Treaty of 1951,” which was signed by 48 Allied countries.
“The 1965 treaty was signed on the premise that colonial rule was legitimate, which is a fundamental issue,” Lee added. “The May 2012 Supreme Court decision did not come out of nowhere, but rather reflects the current growing international trend in recognizing the illegality of colonization.”
Courts take action
On July 28, 2010, a group of over 1,100 Korean and Japanese scholars petitioned the Japanese Prime Minister to say the Japan-Korea Annexation Treaty should be nullified because it was flawed and illegal.
As they marked the 100th anniversary of the annexation, the group sent a letter to then-Japanese Prime Minister Naoto Kan and demanded an apology, stating, “Japan’s annexation of Korea was an imperialistic act and one that was unjust and wrong, carried out after fierce resistance from Koreans from all walks of life, from the king to ordinary people, was put down by the force of the Japanese military.”
In the letter, the scholars wrote, “As the procedure leading up the annexation was unjust and wrong, so is the treaty itself.”
The signature campaign for the letter was launched in December by Kim Young-ho, president of Yuhan University in Korea, and Wada Haruki, emeritus professor of the University of Tokyo and leading scholar on Korea.
This was a follow-up to a movement in May, when a group of roughly 200 scholars from Korea and Japan issued a joint declaration saying that Japan’s annexation of Korea was null and void.
On Aug. 10, Prime Minister Kan said, “For the tremendous damage and sufferings that this colonial rule caused, I express here once again my feelings of deep remorse and my heartfelt apology.” However, he left out any mention of the comfort women.
Japanese international human rights lawyer Etsuro Totsuka said that Kan may have gone further than previous prime ministers in his 2010 statement, pointing out, “I am sorry that no media could understand the importance of PM Kan’s statement on Aug.10, 2010, which was very close to saying the 1910 treaty was null and void. He admitted the basic fact of the nature of the 1910 treaty.”
More suits are filed
On Aug. 30, 2011, Korea’s Constitutional Court weighed in on the issue and ruled that the government’s failure to help comfort women victims denies the spirit of the Korean constitution.
It said the Korean government was obligated to actively pursue diplomatic negotiation or arbitration under Article 3 of the 1965 Claims Agreement.
In its decision on a constitutional appeal by a former Korean sex slave and 1945 atomic bombing victims in Japan, the Constitutional Court recognized the existence of unresolved disputes under that article and held that the Korean government was acting unconstitutionally by failing to take further steps for diplomatic negotiation or arbitration on these issues.
Likewise, the Korean Supreme Court on May 24, 2012, recognized the Japanese government’s responsibilities for forced labor victims under its colonial rule and the right to request compensation by individual victims rather than accepting a lower court decisions on two lawsuits against Nippon Steel & Sumitomo Metal Group and Mitsubishi Heavy Industries.
In May 2000, a group of former forced laborers filed a suit against Mitsubishi in Busan. Another group of five victims filed a similar lawsuit for damages against Nippon Steel in Seoul in February 2005. Their claims were dismissed in lower courts and appeals courts, which followed the precedent of rulings in Japan. They filed a similar lawsuit in Japan, where its top court ruled in 2007 that the statute of limitations had expired.
The Supreme Court said that despite the Korea-Japan agreement of 1965, “individuals still have the right to claim compensation.”
It said that the present-day Mitsubishi Heavy Industries and Nippon Steel are essentially the same companies that they were in World War II and should be responsible for compensatory payments.
The top court added, “It violates the principle of good faith for Japanese companies to claim that the statute of limitations on the case has expired.”
The decision by Korea’s Supreme Court denies the position of the Japanese government and also the rulings in district and appellate courts that all claims issues were finalized under the 1965 agreement on the premise that Japanese colonial rule was legitimate.
This enabled individual victims to request compensation for damages incurred from Japanese authorities’ crimes against humanity, or illegal activities linked to colonial rule not included in the items in the Claims Agreement.
Thus, the forced labor victims were given a chance to receive compensation for damages and unpaid wages some 70 years after they were forced to work in Japan. However, Japanese companies have not compensated these victims.
There has been more momentum in individual and collective lawsuits filed by victims of colonial rule, as well as broader international awareness of Japan’s atrocities, including widespread recognition of the comfort women as a crime against humanity. But the two countries still struggle to find a resolution to the issues, especially that of the wartime sex slaves.
Doh said, “It would have been desirable if there was an official apology accepting legal liability in Prime Minister Murayama’s time in 1995, at least. Twenty years later, we see even more deteriorated relations over issues that could have been resolved decades ago.”