Overcoming the 1965 Korea-Japan Settlement Agreement Regime and Building Peace in East Asia from the Perspective of Japan’s Colonial State Responsibility
Jang-Hie Lee, Professor, Law School, Hankuk University of Foreign Studies, Korea/
Judge, PCA, Hague/ President, History NGO Network in East Asia, Korea( firstname.lastname@example.org)
I. East Asia stuck in trouble with the historical war of clearing colonialism and a new Cold-War
II. The Japanese government evading the responsibility of illegal colonial rule by adhering to 1965
ROK-Japan Settlement Agreement Regime
III. Effective strategy for overcoming the 1965 ROK-Japan Agreement Regime and peace-building in
East Asia from the perspective of the responsibility of the colonial state
IV. Closing Remarks
I. East Asia stuck in trouble with the historical war of clearing colonialism and a new Cold-War
The year 2015 will be the 70th year of Korea’s liberation from Japanese annexation as well as the 50th year of the establishment of the 1965 Korea-Japan Settlement Agreement (here Korea refers to South Korea) which normalized the diplomatic relations of the two countries. The Korean peninsula and East Asia are still engaged in grave historical war among neighboring states, stemming from the unresolved historical past about the illegal Japanese colonial rule. Japanese Prime Minister Shinzo Abe, since taking power in 2013, has not only triggered historical disputes, but also touched off a controversy over the revision of Japan's pacifist constitution for the right to collective self-defense. In addition, the divided system of the Korean Peninsula for 66 years since 1948 is further hardening the new cold-war structure of East Asia. The United States, as ROK’s ally accountable for the unresolved colonial past and the division of the Korean Peninsula, has aggravated the peace of East Asia in connection with its East Asian strategies including a domestic policy of cutting its budgets and a foreign policy of containing China. Furthermore, Japan is making its situation even worse, pursuing militaristic expansionism under the excuse of the North Korean nuclear issue. Therefore, compared with other continental regions, East Asia is now confronted with many stumbling blocks which negatively contribute to its regional cooperation and peace.
In the middle of the history war of clearing colonialism in East Asia and the military tension of Northeast Asia, two significant decisions were passed by the Constitutional Court and the Supreme Court of ROK regarding the Japanese colonial rule.
Firstly, the Constitutional Court of ROK sided with the plaintiffs of the victims of Japanese military sex slavery and atomic bombing in the lawsuit of the petition against the Korean government on the violation of the constitution. The Korean government officially acknowledged ‘Japan’s remaining state responsibility’ after the declassification of the 1965 ROK-Japan Treaty documents in August 2005. As a result, when the dispute over Article 3 of the Treaty occurred, the Korean government did not try to pursue ‘any procedure of its solution or arbitration through diplomatic channels’ with Japan, and Korean Constitutional Court ruled that it is unconstitutional, siding with the victims and confirming the responsibility of the Korean government for its omission.
Secondly, on May 24, 2012 the Constitutional Court of ROK ruled that individual claims of victims caused by illegal acts of colonial ruling are still valid, regardless of the 1965 ROK-Japan Claims Agreement. This judgment paved the way for the victims of forced Korean laborers under the Japanese colonial rule to receive compensation for their labors and unpaid wages after 70 years of their suffering from forced labors imposed by the imperial Japanese companies. The Korean Constitutional Court passed the first judgment that the individual claims for compensation caused from inhumane illegal acts of Japanese governmental authorities or wrongful treatments related to Japanese colonial rule should not be subject to the application of the 1965 Korea-Japan Claims Agreement. The Court decision directly denied the position of the Japanese government and the Japanese Courts of first instance and appeal that all matters were settled down including Article 4 of the 1952 San Francisco Peace Treaty based on the 1965 Korea-Japan Claims Agreement in the context of Japan’s perception of its Korea annexation in 1910 as valid and legal. The Supreme Court of Korea denied the Japanese ruling which exempted imperial Japanese companies from their state responsibility for forced labors, maintaining that it was against the core values and principles of our constitution (Japanese annexation of Korea of 1910 is invalid), and the crimes caused from illegal and inhumane acts should not be subjected to the application of the Treaty as well as extinctive prescription.
The key point of the two judgments is that Japan maintains that all historical matters have been completely and ultimately settled down by the 1965 Korea-Japan Settlement Agreement without acknowledging the illegality of Japanese colonial rule and its criminality. There are some factors at the root of its perception that Japan does not recognize the illegality of its colonial ruling: the weak perception of historical justice in Japan’s dominant public-opinion class, the passive policy by the Japanese government to clear the historical past, Japanese judiciary ruling without perceiving historical justice, the lack of previous Korean governments’ will to clear the colonial past, passivity of the US in dealing with Japanese war criminals.
The unliquidation of the illegality of Japanese colonial rule bases in common at the main root cause of all Japan-Korea problems such as Japanese military sex slavery, victims of atomic bombing, violation of human rights against forced Sakhalin Koreans, provocations over Dokdo, distortion of history textbooks, and the issue of collective self-defense. Not clearing the illegality of Japanese colonialism will serve as barriers in building constructive friendly relations between Korea and Japan as well as interfere with regional peace and cooperation in East Asia. Nonetheless, the 1965 Korea-Japan Settlement Agreement gave the Japanese government the immunity to the effect of complete and final settlement of the illegality of Japanese colonial rule and the Korean government contributed to the rationalization of illegal Japanese colonialism. It starts from the premise that Japan does not recognize that colonialism deprives all nations of right to live in peace and it could be a colonial crime.
II. The Japanese government, evading the responsibility of illegal colonial rule by
adhering to 1965 ROK-Japan Settlement Agreement Regime
The Japanese government firmly maintains a normative consciousness that Japanese colonial rule is legal in the context that the Japanese annexation of Korea in 1910 was legitimately established based on the annexation treaty between Korea and Japan. Therefore, Japan not only denies its responsibility for the reparations for illegal inhumane acts caused by Japanese colonial rules and involved in its governmental authorities but also persists that all remaining colonial issues were completely settled down by Article 2 of the ROK-Japan Claims Agreement in 1965.
As such, Japan does not pay attention to the acknowledgment of illegality of Japan’s colonial rule and follow-up measures of compensation for colonial damages. Rather, Abe’s government, since taking power in 2013, has glorified Japanese colonial rule and made unjustifiable attempts to revise Article 9 of his country`s pacifist constitution, which renounces the right to wage war. In connection with the unresolved Japanese colonial past, both the Korean and US governments will not be free from their responsibilities for post-war measures after the Second World War. The US did not convict and strictly punish Japanese war criminals for their aggression and inhumane war crimes at the Tokyo War Criminal Court in 1946 according to the Cairo Declaration of 1943. The US also failed to clarify Japan’s reparations for illegal colonial damages and the Dokdo territorial issue in the San Francisco Peace Treaty in 1951 while excluding Korea as a victimized country in its consultation. At that same time, then Korea’s military regime of the May 16 military coup could not reflect the voice of the general people on the 1965 Korea-Japan Settlement Agreement which was a follow-up measure pursuant to Article 4 of the San Francisco Peace Treaty of 1951. As a result, in the process of Korea-Japan summit meeting, the Korean government failed to stipulate the illegality of Japanese colonial rule in the 1965 Korea-Japan Claims Agreement owing to the East Asian strategy of the US and US$300 million free grants and paid support of US$200 million. Therefore, since the disclosure of the diplomatic documents of the 1965 Treaty, the official view of the Joint Public-Private Committee of the diplomatic documents was stated to the effect that inhumane illegal acts engaged by the Japanese authorities and the rights to claim for compensation caused by colonial illegality could not be settled by the 1965 Korea-Japan Claims Agreement. As a result, the Korean government shifted its position to acknowledging Japan’s remaining responsibility for victims of colonial atrocities such as Japanese military sexual slavery, atomic bombing, and forced Sakhalin Koreans. In retrospect, both the Korean and Japanese governments had maintained the same position that the problem of Japanese colonial illegality was settled completely and finally pursuant to Article 2 paragraph 1 of the Claims Agreement until August 2005 when the diplomatic documents of the 1965 Korea-Japan Treaty were declassified.
Nevertheless, victims of Japanese colonial rules and civil organizations concerned have tried to arouse international attentions to this issue based on academic researches of supporting scholars, so they contributed to the declassification of its Korea-Japan Treaty documents in 2005 through legal litigations both in Korea and Japan. From the declassified documents about the 1965 Korea-Japan Treaty, it was revealed in 2005 that US$ 500 million of free and paid grants was given as “congratulatory donations to Korea’s independence” or “subsidy for Korean’s economic development”. That is, the stipulation, “the final and complete settlement” agreed between two governments pursuant to the Article 2 and the paragraph 1 of the 1965 Claims Agreement, means only the relinquishment of diplomatic protection between two nations, whereas individual victims’ claims for reparations against illegal colonial rules of the Japanese government means still valid according to international law. Likewise, the Korean government has shifted its position that the Japanese government is still responsible for the issues of the Japanese military sexual slavery, forced Sakhalin Korean laborers, and victims of atomic bombing. In spite of this fact, the Korean government had not raised an official demand for these issues toward the Japanese government. Finally, after five years of Korean government’s nonfeasance in this regard, in 2011, the Constitutional Court officially confirmed the government’s nonfeasance through the petition submitted by colonial victims. In addition, regarding the forced labor issue, victims of forced mobilization filed a lawsuit for compensation against Mitsubishi Heavy Industry Corporation and Nippon Steel & Sumikin Engineering Corporation, and in this case, the Supreme Court of South Korea sided with the victims on May 24, 2012, quashing the original ruling and returning it to the High Court. At quashing and returning trials on July 10 and July 30 of 2013 respectively, plaintiffs won the cases. Later, the Japanese companies appealed the Supreme Court with its result remaining to be seen. The Japanese government is pushing the Japanese companies not to compensate the Korean victims even though a final decision has been made. In addition, the Japanese government insists that it should bring this matter to the International Court of Justice based on the state’s responsibility according to international law, in case of ROK’s enforcement of its Supreme Court’s verdict to the Japanese companies for individual compensations of Koreans.
III. Effective strategy for overcoming the 1965 ROK-Japan Agreement Regime
and peace-building in East Asia from the perspective of the responsibility of the colonial state
The center of the world is quickly moving to East Asia. The Asia Development Bank (ADB) visualizes the future of Asia in its publication, Asia 2050 Realizing the Asian century, with two scenarios whether Asia will realize ‘Asia Century’ or it will fall into the trap of ‘developing countries.’ Assuming the realization of the Asian Century, the economic growth will reach US$174 trillion in 2050 covering 52% of the world economy with per capita income of US$40,800. At the moment, current economic power of Asia is comparatively high in the world and there is a brighter future in Asia. On the other hand, however, in terms of its military and political cooperation, East Asia is confronted with many barriers, so regional cooperation is lagging behind and there are political and military tensions. Peace and cooperation in East Asia are unstable compared to other continents such as Europe, America, and Africa. A new Cold War is resurging in East Asia with multifaceted conflicts such as historical disputes and territorial issues among Korea, Japan, and China. North Korea’s nuclear issue also aggravates the situation. On the other hand, peace and regional cooperation are developing in Europe, America, and Africa. The instability of regional peace and cooperation among Korea, China, and Japan in East Asia is caused by unresolved historical past and pains left from the Japanese colonial rule. Toward Korea, in particular, Japan does not admit its criminality for its past illegal colonial rule at all. Instead of making reparations for its past wrongful acts, it insists on distorting past history. There are main historical issues remaining to be solved, including the problems of Japanese military sexual slavery, victims of the atomic bombing, Sakhalin Koreans, and forced laborers. Furthermore, Japan’s Prime Minister, Shinzo Abe who took power recently shows a move to revise the Kono Statement of 1993 (the first acknowledgement of coercive mobilization of comfort women by Japan) and Murayama’s Statement of August 15, 1995 (the first official remorse and apology about Japanese colonial atrocities). From May 15, 2014 on, under the pretext of North Korean nuclear issue, Abe’s government has triggered resurgence of past military expansionism by overstretching its law and enabling collective self-defense through the revision of Article 9 of Japan’s pacifist constitution. Here, the US is in favor of the Japanese position instead of criticizing the regression of Japan’s historical justice and urging its correction. Thus, the US policy for its own self-interest toward East Asia obstructs the establishment of historical justice and even contributes to forming a new Cold War structure in East Asia. Such a blunder of US policy leads to a more serious situation in East Asia by provoking Chinese military expansionism.
Under the pretext of North Korea’s nuclear issue and military tension in East Asia, Japan insists on the complete settlement of compensation claims for the damages caused from illegal colonial rules between Korea and Japan based on the San Francisco Peaty Treaty of 1952 and the Korea-Japan Settlement Agreement of 1965. Furthermore, Japan takes advantage of the current delicate situation of East Asia to amend its pacifist constitution and to legitimate its collective self-defense.
However, the 1965 Korea-Japan Settlement Treaty, which was established in the context of the legitimacy of the Japanese annexation of Korea in 1910, could not settle down the problem of claims for compensations caused by imperial illegal acts including ‘colonial responsibilities.’ The diplomatic documents of the 1965 ROK-Japan Treaty declassified in August 2005 clearly reveals that the 1965 system can deal with the state responsibility for war victims but the Treaty has nothing to do with state responsibility for colonial damages.
Through the analyses of aforementioned two cases, I would like to focus on the main issue of legal reliefs of the victims under the unlawful colonial rule from three aspects.
The first problem is that although the Japanese government orally apologizes, it fundamentally does not acknowledge its illegality and criminality for its colonial rule.
The second problem is that Japan holds the position that the issue of forced laborers was completely settled down according to Article 2, paragraph 1 of the Claims Treaty because the forced labor issue was included in the fifth item of “Eight Claims to Japan” at the meeting of the 1965 Treaty. After the declassification of the diplomatic documents in August of 2005, the Korean government maintained a similar position to that of Japan only in connection with the victims of forced labor.
The third problem is related to the San Francisco Peace Treaty of 1952 which is projected onto the 1965 System, excluded Korea as a colonial victim from the post-war compensation treaty and made issues related to colonial state responsibility solved through mutual agreements between Korea and Japan. However, the 1965 Korea-Japan Settlement Agreement failed to stipulate legal basis of Japanese colonial responsibility by the Cold War strategy of the US. This means that the US is not free from responsibility for its failure to strictly implement the Cairo Declaration of 1943 in the overall process of post-war treatments after World War II.
The 1965 Korea-Japan Settlement Agreement Regime with the premise of the legality of Japanese annexation of Korea in 1910 shows limits in clearing historical past of illegal colonial rule between Korea and Japan. Therefore, we need to establish a new regime between Korea and Japan on the occasion of the 70th year of Korea’s independence in 2015 to clear up the historical past of illegal state’s responsibility for colonial rules. The new regime should officially stipulate colonial crime of Japan and the corresponding reparations for colonial rule. Clearing illegal colonialism was enlisted to the agendas of the 21st century as a task to fulfill on the Durban Declaration adopted at “International Conference against Racial Discrimination” held by the UN in South Africa in 2001. The mutual Amity Agreement about clearing colonial rule between Italy and Labia in 2008 is another example. The United Kingdom also initiated negotiations with its former colony, Kenya, about clearing its illegal colonial legacy. Thus, state’s responsibilities for colonial damages including the clearing of illegal colonialism are actively being discussed in the trend of jurisprudence of a new international law. Definitely, the tendency of the jurisprudence of international law is evolving toward the jurisprudence of international law with the emphasis of “individual human rights” beyond “international law of state-centered system” which is based on the Westphalian system of 1648. The contemporary jurisprudence of international law has gradually been away from the typical principles or theories of imperial power-oriented international law (occupation, criticak date etc.).
Likewise, in terms of a theory of the international law, reestablishing the 1965 Korea-Japan Regime coincides with a new trend of the international community and the contemporary jurisprudence of international law after 2015. Only overcoming the 1965 Regime is a way to erect historical justice between Korea and Japan and to secure sustainable peace in East Asia. It conforms to a new trend of the evolution of the aim of international law from passive peace (no war, no intervention) to positive peace (fundamental solution of poverty, historical justice, human rights, and conflict in the international community).
The task to overcome the limit of the 1965 Regime cannot be left to states’ selfishness of Korea and Japan. Therefore, civil societies and NGOs related to peace and history from two countries should draw international opinions and put pressure on their governments through strong international solidarity and collaboration. On the 100th anniversary of colonial annexation of Korea, 214 intellectuals on May 14 and increased number of 1139 intellectuals on July 28, 2010 from both sides respectively declared a Korea-Japan joint statement simultaneously in Seoul and in Tokyo to the effect that “the Japanese Annexation of Korea in 1910 is fundamentally null and void based on historical justice.”
The San Francisco Peace Treaty of 1951 went only as far as setting forth the approval for Korea’s independence and relinquishment of territorial claims, and the ‘liquidation of the past colonial issues’ was left to Korea-Japan talks.
The 1965 system of ROK-Japan Settlement Treaty is a subordinate system of Article 4 of the San Francisco Peace Treaty of 1951 which dealt with civil and financial damages of its state and nation claiming for obligation, debt or claim rights not being connected with illegality of colonial rules. Article 4 of the San Francisco Treaty was intended to solve financial, civil debt or credit relations between the two countries, but did not handle the problem of compensation for damages caused from the illegality of Japanese colonial rule. Therefore, the 1965 Korea-Japan Settlement Treaty was established on the premise that Japan’s annexation of Korea in 1910 was valid. The preamble of the Constitution of the Republic of Korea puts its national legitimacy on the basis of the spirit of 3.1 Independence Movement of 1919 and the legality of the Provisional Government of the Republic of Korea in Shanghai in 1919. Therefore, the preamble of the Constitution begins with the emphasis on the illegality and invalidity of Japan’s Annexation of Korea in 1910. The 1965 Korea-Japan Settlement Agreement Regime is against the core value of ROK’s constitution and is opposed to the national legitimacy of the Republic of Korea. There is no clear stipulation of Japan’s apology and acknowledgment of legal responsibility for its past colonial atrocities and of follow-up measures to clear its historical past. As far as the 1965 Regime exists, the criminal and illegal acts of unlawful colonialism cannot be legally and actually overcome. What is worse, the historical war in East Asia will last over a long period, and peace in East Asia will not be realized as long as the historical war ensues.
In this context, the decision of the Constitutional Court of ROK in 2011 and the decision of the Supreme Court in 2012 were the first courageous rules conducive to overcoming the 1965 Regime. The aforesaid two decisions would be the first historical ones which recognize illegality of colonial rule, its state responsibility and constituting of colonial crime. Not only Korea and Japan but also the US should actively work together to contribute to overcome the unreasonable 1965 Regime system and building peace in East Asia through effective implementation of the two decisions. At the same time, in this regard, it is necessary to arouse public opinions and form a relationship of trust and amity at the grassroots level of the two peoples, e.g. Korea-Japan intellectuals issued a joint declaration of 2010 to the effect of the null and void of the Japan’s Annexation of Korea in 1910 and the joint meeting of the Korean Bar Association and the Japanese Bar Association on April 7, 2014 to redeem the claims rights of compensation of forced Korean during Japanese imperial war. The two decisions of the Korean courts seemed to have a great influence on China. China had not clearly revealed its position on this question until March 1995. Even though China agreed to renounce its demands for war reparations from Japan in the Joint Communique between China and Japan in 1972, Chinese courts have accepted the demands for compensations of war damages in the lawsuits filed by its individual victims toward Japanese war criminal corporations. To overcome the 1965 Regime, we need a strong international solidarity and networks based on trust among peoples or civil societies/NGOs in East Asia. To go one step further, we need to work with Southeast Asian countries victimized by Japan’s aggressive war in arousing international opinion in connection with the matter of Japan’s entrance to the United Nations Security Council. Asia 2050 Realizing the Asian century published by ADB emphasizes cooperation and peace among member countries of East Asia to make Asian Century of 2050 realized. It should start with the clearance of illegality of Japanese colonialism, and for this cause, we need to launch a new regime system overcoming the limits of the 1965 Korea-Japan Settlement Agreement Regime. The new regime of a Korea-Japan Treaty should have the clear stipulation of state’s responsibility for illegal colonial crimes and unlawful rules. As such, this change for the new regime has begun from the 1993 Kono Statement and the 1995 Murayama Statement, which respectively acknowledged the Japanese military’s involvement in sex slavery during World War II and apologized for Japan’s colonial rule of Korea and other neighboring countries.
It is high time for the Japanese government to courageously make a historic and political decision for peace in East Asia as well as the future of Japan. Japan should learn sincerely the historical truth from Germany. I hope that Japan will not avert the historical truth for genuine historical reconciliation between Korea and Japan and the realization of peace in East Asia by acknowledging the limits of the 1965 Korea-Japan Settlement Agreement Regime.
The Constitution of Japan (1947)Preamble
“ We recognize that all peoples of the world have the right to live in peace, free from fear and want.”
Kinhide Mushakoji,"Towards the Recognition of the Crime of Colonialism",Key Note Speech, International Conference on Japan's Annexation of Korea in 1910, Its History and Tasks, (August 23,2010), Northeast Asian History Foundation, Seminar Materials book, pp.3-5.
Chapter II: Renunciation of War/ Article 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.
In the Cairo Declaration, the restoration of Chosun’s territorial sovereignty is stipulated in this part “Japan will also be expelled from all the other territories which she has taken by violence and greed.” It also contains the phrase that in connection with human rights of Japanese comfort women, “the aforesaid three Great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent." By analyzing this document, forced labor of Chosun(Korea) people can be considered enslavement. This indicates the illegality of Japan’s colonial ruling.
Arai Shinichi, "Disorder of East Asia and Colonialism", International Conference on Japan's Annexation of Korea in 1910, Its History and Tasks, Session1, (August 23, 2010), Northeast Asian History Foundation, Seminar Materials book, pp.40-44.