Rethinking of civilian claims against Japan
By Guan Jianqiang
Prof. Guan Jianqiang
On June 22, 1965, the Basic Law and other agreements were concluded between the Republic of Korea and Japan, marking the normalization of Korea-Japan relations. This was reconciliation.
However, the individual claims for infringement damages from the Japanese army during WWII were not specified in the arrangements. Furthermore, with rapid development of people’s awareness of democratic and human rights in South Korea, some sensitive issues could not suppressed any more. More and more South Korean victims of the war have bravely sued the Japanese government for compensation. However, the Japanese courts rejected the victims’ claims by declaring that agreements between Japan and Korea have already settled the victims’ personal claims.
After exhausting local remedies in Japan, on August 30, 2011, the Constitutional Court of South Korean made a judgment regarding the “comfort women” issue, and on May 24, 2012, the Supreme Court of South Korea also made a judgment regarding Korean victims of forced labor by Japan during the war. Both judgments specified that the claims of the comfort women were not settled by the agreements between the Republic of Korea and Japan.
By comparing the San Francisco Peace Treaty (hereinafter referred to as “the SFPT”) and agreements between Japan and Southeast Asian states with agreements between Korea and Japan, it is obvious that the rules regarding individual claims are expressed differently. Article 14 (b) of the SFPT identified the claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war.
In the peace treaty between Japan and Burma (made on November 5, 1954) and the peace treaty between Japan and Indonesia (made on January 20, 1958), it is clearly ruled as well as the article 14 (b) of the SFPT.
However, the agreement between the Republic of Korea and Japan on Economic Cooperation and to Resolve Problems Related to Claims and Property has not completely waived related rights. Thus, the Korean judgments are well-founded.
Furthermore, the judgment of the Korean Constitutional Court points out that “Settling the individual claims for its citizen is the state obligation and should be properly handled through diplomatic channels by the government.”
In its domestic laws, the Korean Constitution rules that the state is responsible for protecting its expatriates. And in international law, generally speaking, most scholars insist that diplomatic protection is more of a right than an obligation, and rights could be waived. However, in the 1949 Fourth Geneva Convention, it is clearly prescribed that the parties must take responsibility for those who gravely violate international humanitarian laws. Most of the countries nowadays are party to the Geneva Convention. Apparently, taking responsibility for grave violations of international humanitarian law is more an obligation than a right.
Korea now positively exercises its rights and duties from its domestic constitution and international law. Korea’s diplomatic and legal practice has set an example for Asia and other countries around the world over the need to solve the remaining issues of war.
This year marks the 50th anniversary since the normalization of the Japan-Korea relations. However, a proper settlement of the comfort women issue would directly affect the foundations of the friendly relationship between the citizens of the two countries. How to harmonize the relationship between Japan and Korea is still an issue that needs further cooperation between the two countries.