San Francisco Peace Treaty and remaining task
By Doh See-hwan
This year marks the 70th anniversary of the signing of the San Francisco Peace Treaty. In relation to pending issues of Korean history and territory, I reviewed international legal issues, focusing on Articles 2 and 4 ― among Articles 2 (territory), 4 (claims), 9 (fishery), and 12 (trade) as benefits to Korea ― as stipulated in Article 21 of the treaty.
First of all, through the San Francisco Peace Treaty, a “generous peace treaty” that changed its stance from a punitive treaty to an anti-communist treaty due to the Cold War, Japan, which has become the largest beneficiary despite it being the perpetrator, paradoxically denies colonial responsibility and war responsibility on the premise of the treaty.
Japan's most important task in the process of signing the 1965 Korea-Japan Agreement for the Normalization of Diplomatic Relations with Korea, which had become a non-party state under Japanese intervention using the transition phase of the Treaty of Japan, was to solve the colonial responsibility problem. However, Japan has been evading responsibility by distorting the essence of the problem from the text of the Korea-Japan Agreement to the present time, when unresolved issues, such as the exploitation of “comfort women” by the Japanese military and forced mobilization in the territories it controlled, have become acute.
Moreover, under the policy stance of “breaking away from the postwar regime” for the revision of the Japanese Peace Constitution and “historical revisionism,” contrary to the San Francisco Peace Treaty, Japan insists on placing a distorted frame on its history by putting international law at the forefront such as its “legitimate theory of 1910 colonization,” “completion theory of the 1965 Korea-Japan Agreement” and “Japan's 1905 incorporation of Dokdo theory.” However it is nothing more than structural violence that denies the obligation of the San Francisco Peace Treaty to liquidate the responsibility for war in East Asia, and establish an international peace and security.
In such a premise, the most controversial part of the remaining Japanese colonial responsibility is the issue related to the individual rights of claim. Such claims, which are the right of individuals to receive compensation for human rights infringements by the perpetrator state, and a core element constituting such human rights, cannot be extinguished through interstate treaties.
If so, it is necessary to review the international legal meaning of the lump-sum agreement, which the Japanese government insists on as the extinction of individual claims rather than diplomatic protection in relation to claims that have expired under the Korea-Japan Claims Agreement.
Lump-sum agreements are usually concluded for political reasons, and are concluded not on the basis of, or only very partially, on the damage and injury suffered by an individual of the nationality of the state receiving the amount under the agreement. The total extent of individual damage and injury was not known at the time of the conclusion of the agreement, so it could not be taken into account in calculating the amount of payment based on the agreement.
In the same vein, lump-sum agreements that did not even attempt to remedy the actual damage and injury of individuals, it is difficult to argue that the victorious states acted on the behalf of the individual victims.
Considering the development of international law that emerged in force after World War II and became identified in all areas of human rights and humanitarian law codified in the 1949 Geneva Conventions for the Protection of Victims of War, even if such practices are effective as agreements to pay a certain amount between states at the international level, it cannot have the effect of depriving individual claims for damages suffered by individual victims.
In this regard, Germany, a state taking responsibility for its war crimes during World War II, signed the German-French Interest Promotion Foundation Treaty in 1981 to solve the problem of compensation for additional damage after the signing of the Nazi Damage Comprehensive Compensation Agreement with France in 1960. In addition, Germany established the “Erinnerung, Verantwortung und Zukunft Foundation” in 2000 to compensate the victims of forced mobilization labor and paid 4.4 billion euros in compensation to 1.6 million victims in more than 100 countries by 2007.
Moreover, it is noteworthy that Germany revised it to mark the 60th anniversary of the 1952 Luxembourg Convention signed with the Jewish Claims Conference (JCC) established in 1951 on behalf of victims of the Holocaust around the world. In 2012, Germany led the way to amend the agreement to provide additional compensation for the 80,000 survivors who were excluded from compensation due to their living in the communist bloc.
Germany's finance minister, Wolfgang Schaeuble, who signed the amendments, said “The crime of the Holocaust was so unimaginably huge that we don't know the names of all of those killed, nor of all those who are entitled to make claims and that is why we have to keep making adjustments.”
In response, Stuart E. Eizenstat, former U.S. ambassador to the EU, JCC's negotiator, said “Germany was exemplary in living up to its historical crimes. It's a great contrast compared to the attitude of Japan for its responsibility for sex slaves it forced and war criminals during World War II.” Meanwhile, Japan has repeated its position that the sex slave issue was settled in the San Francisco Peace Treaty signed in August, 1951, and they were compensated by the private fund.
Therefore, I would like to present Japan's international legal obligation to comply with the U.N. Charter principle and to realize the purpose of the World Human Rights Declaration, as stipulated in the Preamble of the San Francisco Peace Treaty.
First, the compliance of the U.N. Charter principle should start with the respect of the sovereignty of other countries, above all territorial sovereignty. Japan's claim on effective control over Dokdo, based on “the legal theory of colonial rule,” is a distortion and violation of Korea's historical and territorial sovereignty over Dokdo. Japan therefore must fulfill its true international legal obligations to build a peaceful world community in the 21st century.
Next, in relation to the realization of the purpose of the Universal Declaration of Human Rights, it should be noted that the “completion theory of the 1965 Korea-Japan agreement” as Japan's distorted frame on historical victims, is a form of structural violence against those victims of the Japanese military's sexual slavery practices and forced mobilization.
Thus Japan should solve the issues based on international human rights law, which aims to establish a community of human rights, justice, and peace, through a victim-centered approach, unanimously adopted by the U.N. General Assembly in 2005.
It will be a question of history for us today celebrating the 70th anniversary of the San Francisco Peace Treaty toward the East Asian peace and a task of historical justice that we should respond to with historical reflection.
Doh See-hwan (
drdoh@naver.com) is senior research fellow at the Northeast Asian History Foundation.