Do Je-hae edits news stories as part of the AI team.
INTERVIEW 'Japan's 'breach of treaty' claim is wrong'
Former Ambassador to Japan Lee Su-hoon, professor of Kyungnam University / Korea Times photo by Ko Young-kwon
By Do Je-hae
This is the eighth in a series of interviews with political experts and experienced analysts assessing the impact of the ongoing South Korea-Japan trade row after Tokyo removed Seoul from its list of trusted trading partners receiving preferential treatment in exports. ― ED.
By Do Je-hae
As President Moon Jae-in's first ambassador to Japan from October 2017 until May this year, Lee Su-hoon led Korea's Japan diplomacy during some of the toughest periods in bilateral relations in recent decades due to Tokyo's adamant protests of the 2018 Korean Supreme Court ruling that ordered Japanese firms to pay compensation to the Korean victims of forced wartime labor.
The former top envoy to Tokyo pointed out faults with Japan's rigid position and unilateral trade restrictions, while providing insights into how to resolve the current bilateral dispute during a recent Korea Times interview at his office at Kyungnam University in Samcheong-dong, Seoul. In particular, the professor noted the need to clear up some of the distortions on the ruling being spread by Japan as part of its claim that Seoul “breached international treaty.” The scholar underlined that the Supreme Court ruling does not defy international law. He also stressed that contrary to Japan's claim, the 1965 Korea-Japan normalization treaty did not fully address the issue of individuals' rights to seek compensation.
It is an undeniable fact that the two countries have had additional negotiations to complement the 1965 pact's insufficiency in addressing individual settlements. Bilateral negotiations over the years have dealt with various colonial-era victims, such as women forced to serve as wartime sexual slaves, Korean colonial subjects deserted in Sakhalin and survivors of the Hiroshima atomic bomb. Therefore, Japan's claim that the 1965 pact nullified all individual rights to seek settlements is inaccurate. Also, Tokyo's position overlooks a principle of the 1961 Vienna Convention in recognizing the individual rights to seek settlements regardless of state-to-state treaties.
The following are edited questions and answers from the interview with the former ambassador.
Q: Why did Japan impose economic measures against Korea?
A: Following the October 2018 Supreme Court ruling, Japan claimed that this was against the Korea-Japan Claims Settlement Agreement [attached to the 1965 normalization treaty]. Its first demand was for us to rectify what it called a “violation of international law” and warned of corresponding measures if this demand was not met. There was some tug of war between the two governments, with the ruling specifically ordering Japanese companies to pay compensation. Japan warned of countermeasures in the advent of actual damage to the firms in the process of carrying out the verdict. The measures are the retaliatory actions that we see today. At the time, the media started to report about forthcoming retaliatory action from Japan, including tightened export measures on materials crucial to Korea's high-tech sector, such as fluorinated polyimides, photoresists and hydrogen fluoride.
Q: The retaliatory action was foreseen for some time. How do you assess Seoul's response?
A: I get a lot of questions about why it took so long for Seoul to address the situation [following the Supreme Court ruling]. But rather than approaching the issue from this perspective, the questions should really be about why Japan is being so rigid with its unwavering position that Korea is violating the 1965 pact, and therefore it is a breach of international law, and that this is a situation which must be rectified. Tokyo is still saying the exact same thing and has not deviated an inch from this position.
Importance of Supreme Court ruling
Q: Is Japan's stance unwarranted? Some people, particularly non-Koreans, are wondering whether individuals' rights to seek compensation have expired due to the 1965 pact.
A: Japan's position is wrong. I understand such questions. That is why I thought it was important to talk to an English-language news outlet to correct such views. The Supreme Court ruling is extremely important. It is important because after the 1965 treaty was concluded, it was ratified by the National Assembly. When a state-to-state treaty gains parliamentary ratification, then it is subject to domestic law from that moment on.
Disputes have emerged from diverging interpretations [between the two countries] and that is why we went to court. But the Supreme Court has the final and exclusive right in the interpretation. The Supreme Court, which has the ultimate authority, has delivered a verdict that Japanese firms should pay compensation despite the discrepancies in the interpretations. Japan's position has been that individuals cannot file damage suits, claiming that it fully settled such issues when it provided economic aid to Korea under the 1965 agreement.
But our Supreme Court ruling determined that the individuals' rights to seek settlement is still valid. So this recognition of individual rights to seek settlement has a profound significance. Before the Abe administration, Japan had also acknowledged individual rights. A Japanese foreign ministry official in charge of international treaties made remarks in this vein in parliament, and after the Supreme Court ruling, even Japanese Foreign Minister Taro Kono made such remarks to reporters. So in the past and even now, Japanese officials have recognized the individual rights. The state-to-state “diplomatic protection” [a state's right to demand relief for another state's unlawful encroachment on its own nationals] has expired. But the individual rights to seek settlement for the damage and suffering they experienced are still intact.
And the Supreme Court ruling does not deny the 1965 pact. There is a huge dispute and conflict because Japan does not acknowledge the ruling. Due to Korea's strict adherence to the separation of powers in the administrative, legislative and judiciary branches, the administrative branch cannot intervene in the Supreme Court ruling. This is a civil suit. The top Korean court's verdict must be respected. But Japan says it can't do this. That is why the situation has been aggravated.
Q: Will the economic sanctions be eased if the two countries find a resolution to the forced labor dispute?
A: I believe so. But Prime Minister Abe has told us to “bring a solution and then we can talk” and has refused summit talks. Tokyo has refused high-level negotiations. Under these circumstances, it is difficult to find a diplomatic solution, because the two sides need to sit together to discuss the various compensation proposals, whether it be of 1+1 (Japanese+Korean firms), 2 (Japanese+Korean firms)+1 (Seoul) or 2 (firms from both countries)+2 (governments of both countries).
To find a more specific method of compensation, the two countries need to negotiate, but Japan is currently too rigid. It must show some flexibility. It should not unilaterally tell the other party to bring a solution. Fundamentally, the Korean government cannot intervene in the ruling, but there is also the 1965 pact to be considered. In 2005, Seoul disclosed documents on the forced laborers and compensated them through a special law. Given these precedents, we must sit together and talk. Due to the “economic war,” both sides are agitated, so the current atmosphere is not conducive for calm and cool-headed negotiations for a resolution.
Q: What should the Korean government do?
A: Seoul suggested a 1+1 proposal to Tokyo, but it was refused without due consideration. Our suggestion was to create a fund from the Japanese firms and voluntary participation from some Korean firms [that benefited from the economic aid from Japan in 1965]. What Japan wants is for the Korean government to take care of it all, saying that the issue of forced labor was resolved with the 1965 pact. Tokyo has also barred Japanese firms from compensating the victims. But this is wrong because there is a need to respect the Supreme Court ruling.
What makes the current situation different from 2005 is the Supreme Court ruling. Back then, there was no such ruling. A joint committee consisting of government and civic experts reviewed the relevant diplomatic documents and discussed what to do about the forced laborers. Our government's position at the time was that because we had received settlement in 1965, we could not demand compensation from the Japanese government or Japanese firms, so the Korean government shouldered the compensation. But now, after more than a decade, the Supreme Court's ruling has been delivered. The plaintiffs were not compensated in 2005. There were so many forced laborers, and according figures by the interior ministry, there were about 210,000 who were forced to work for Japanese firms. Through a special law, about 618.4 billion won was paid to approximately 71,000 conscripted laborers from 2007.
From the Korean government's perspective, the Supreme Court ruling, which determined that Japanese companies are responsible for compensation and ordered 100 million won per plaintiff, must be respected.
Q: How was the atmosphere in Japan when the ruling came out?
A: It was very harsh. Tokyo lodged a stern objection, to the point of being rude. Recalling an ambassador is a very strong level of protest.
Q: Tell us about your meeting with Prime Minister Abe before leaving Japan.
A: We saluted each other's hard efforts. His remarks were mostly about encouraging me to continue to contribute to Korea-Japan relations even after concluding my tour of duty and wishing me a farewell. There was no warning [about economic retaliation].
Q: Do you think Seoul should do more to resolve the historical conflict, which is at the root of Japan's economic restrictions?
A: No. It is Japan which took the preposterous measures on July 1 [the export restrictions on three high-tech materials] and Aug. 2 [the Cabinet's approval of removing Korea from its whitelist of preferential trading partners]. The first targets our chips and display sector, including Samsung, which is the symbol of Korea's economy. That is why I call this an economic war. And on top of this, they have slapped additional export restriction on some 1,190 items that could impact Korea's core industries, such as autos, chemicals, electronics, etc. It is abnormal to do nothing under these circumstances. Therefore, Seoul's decision to remove Japan from our whitelist was justifiable. It is extremely problematic that Japan carried out these actions first.
Q: There are some who view that Japan would not have carried out such moves if Seoul's response to the ruling had not caused such huge discontent there.
A: No. We have never neglected the ruling. The historical problems are very complex. Such complex matters should be handled in a prudent manner, with patience, objectivity and efforts for communication. There is a historical conflict and Japan is acting emotionally because it feels Seoul is not doing what it requested. So it is attacking Korea's key industries. That is extremely problematic and unjust.
Misperception on comfort women deal
Q: Abe claims that it cannot trust Korea, saying that Seoul destroyed the 2015 deal on the sexual slaves for the Japanese Army (comfort women) during World War II.
A: The Abe administration could think so. But the 2015 agreement was full of problems and there was a huge public call to terminate it. But the Moon administration has stressed that because it is a state-to-state agreement, it must be respected.
Seoul did not terminate the agreement. If we had, then we would have to seek a renegotiation, but that has not been pursued, either. I know this well because I was in Tokyo at the time. And I strongly maintained that the agreement should not be terminated. The Japanese government claims that the deal has virtually been nullified. But this must be clarified based strictly on facts. It is an extremely important issue between the two countries and a diplomatic issue. We have not terminated the comfort women deal.
Domestically, there were calls from the victims, civic society and the public to dissolve the foundation established through the deal because there are many problems with it. As a democratic nation, our government has the responsibility to listen to the public sentiment and respond accordingly. We cannot just ignore it.
Q: What do you think is needed to restore trust between the two leaders and the two governments?
A: The important thing is to find a resolution to the forced labor issue. There have been ideas from the political circle, including the 2+1 or 2+2, and our government made the 1+1 suggestion on June 19. But with Japan's attitude, a diplomatic solution will be difficult to reach. Japan must be more flexible. A diplomatic solution entails dialogue, discussion and negotiation. If Japan keeps up its attitude that it will sit down with us only if we bring a solution acceptable to them, then we cannot find a diplomatic solution.
The Japanese firms have refused calls for a meeting with the victims. The lawyers representing the Korean plaintiffs came to Tokyo but the firms did not speak with them. This is because the government has told them never to respond to such calls. In the past, some Japanese firms reconciled with victims in other countries and in Korea within and outside the court. Then, reconciliation is possible if the firms respond to the requests for talks in line with the Supreme Court ruling. If the Japanese firms continue to refuse to communicate, then the legal process must be carried out, such as the seizure of local assets. Then the situation will become even worse. Therefore, the Japanese government must adopt a more flexible posture. And the Japanese companies should respond to calls for communication.
Legal character of Japanese rule
Q: The court ruling determined that the 1910-1945 Japanese colonial rule was illegal. What do you think about this?
A: There can be a wide range of views on this issue, but what matters is that the Supreme Court, which has the ultimate right to interpretation, has produced a final judgment after very careful deliberation that ordered compensation for pain and suffering caused by the illegal colonial rule.
Aside from the individual rights, another big dispute from the 1965 pact is this very issue of the legal character of Japanese rule. Japan has claimed that it was legal, but our Supreme Court has ruled that it violated humanity and was illegal in the autumn of 2018. Therefore, the ruling is profoundly important for us and for the world because many other countries have also experienced colonial rule.
Q: Is the 2+1 a rational option?
A: It can be one of the methods, but the government cannot jump on it. The government must put it to a discussion, public forums and collect public opinion and also seek advice from experts. These are the necessary democratic procedures that must precede the creation of a government proposal.
Prospects for talks
Q: Can there be a diplomatic breakthrough before the Oct. 22 coronation of the Japanese emperor?
A: First, the economic war must be eased. This is a critical precondition. This was caused by unilateral retaliatory measures from Japan, so it falls upon the Japanese government to find a solution to this situation.
Second, a solution to the forced labor issue must be sought. Then, there is no reason why the two leader cannot meet.
Who is Lee Su-hoon? Lee Su-hoon is a noted expert on Northeast Asia with extensive experience in public service as a key foreign policy adviser to President Moon Jae-in as well as the late former President Roh Moo-hyun. After the presidential election in May 2017, the international relations professor at Kyungnam University served in the State Affairs Planning Advisory Committee, Moon's de facto transition team. President Moon named Lee as his first ambassador to Japan on Aug. 30, 2017. From 2005 to 2008, Lee led a presidential advisory committee for Northeast Asia policies during the Roh administration. He accompanied the former president to the October 2007 inter-Korean summit in Pyongyang.
A native of Changwon, South Gyeongsang Province, Lee has taught at Kyungnam University since 1987, after receiving his Ph.D. in sociology at Johns Hopkins University. He served as the director of the Institute for Far Eastern Studies (IFES) at Kyungnam University from 2009 to 2014. In 2015, Lee was a visiting professor at Keio University. From 2002 to 2006, Lee served as an executive director of the International Sociological Association.