proposal

Current Status and Prospects of South Korea and Japan's Frictions over History: How to address the Judicial Problems

Lecturer: Masao Okonogi (Professor Emeritus, Keio University)

The current intricate Japan-South Korea relationship is the result of the Korean judiciary's intervention in history issues between the two countries. This paper is intended to focus on history issues we are facing at this moment, particularly the forced labor issue, and to see how the Korean judiciary has complicated the situation. The Japan-South Korea relationship is never free from history frictions. This is because the history between Japan and mainland China since the Meiji era is still affecting the Japan-South Korea relationship. Moreover, the bilateral relationship is also affected by responses to the North Korean issue. These are combined to make Japanese people feel that Japan's efforts to get along with South Korea are an interminable labor like Sisyphus's boulder in Greek mythology. The followings will focus on frictions over history in the Japan-South Korea relations, bearing in mind on how to comprehensively address the above enumerated questions.

1. The origin of South Korea and Japan's frictions over history --- An identity clash

About 20 years ago, under the Koizumi administration, the Japan-Korea Joint History Research Committee was established with participation of Japanese and South Korean researchers. Its establishment constituted a major topic at the first summit meeting between the incumbent administrations of the two countries. Another important topic was the possibility of some nonreligious state memorial to replace the Yasukuni Shrine. The present author was then involved in the Task Force on Foreign Relations --- Prime Minister Junichiro Koizumi's private advisory committee. For the sake of Prime Minister Koizumi, who was not well versed on Asia, the task force chaired by Mr. Yukio Okamoto, held a meeting prior to his visit to China or Korea to provide direct advice to the prime minister. At that time, I thought that a non-government joint research organ to study history issues would work in some way or other. Although from today's vantage point such an opinion may seem naïve, yet it was eventually accepted, and the present author was appointed as secretary to the committee. Professor Shinichi Kitaoka joined force with us as an influential member until he was appointed as Japan's ambassador and deputy permanent representative to the United Nations.

At the first meeting of the Japan-Korea Joint History Research Committee, the Japanese chairperson Mr. Taichiro Mitani talked about his experiences in joint research efforts between Japan and the United States and pointed out the necessity of an academic community between Japan and South Korea. It was agreed that the purpose of the committee in its first phase was to clarify common points and differences between Japanese and Korean historical interpretations and to discuss major issues. However, at the actual meetings, participants from both sides became passionate with debating and argued for the legitimacy of their respective historical interpretations.

At the root of frictions over the history between the two countries exists the question of non-negotiable identity. For example, Prime Minister Abe's remarks on the Russo-Japanese War in his statement on the 70th anniversary of the end of World War II (2015) --- "The Japan-Russia War gave encouragement to many people under colonial rule from Asia to Africa." --- raised much criticism in South Korea. The war occasioned the colonial rule of Korea by Japan. The feelings of the invaded side tend to be acutely sensitive, while those of the invading side blunt. In this connection, we must note that the French colonization of Vietnam or the British colonization of India is quite different from Japan's annexation of Korea. There are not many examples of annexation in world history. Among the few are the Italian annexation of Ethiopia; the German annexation of Poland, and the annexation of the Baltic countries by the Soviet Union. Annexation is absorption and assimilation, distinct from colonization. Ostensibly, colonization presupposes the future independence of a colony; and the colonial powers are assumed to impart political training to the colony under their rule, and then to help the colony through autonomy to independence. For example, the United States is proud to have led the Philippines to independence through colonization. The United Kingdom also returned Hong Kong to China after the elapse of 99 years in accordance with a bilateral treaty.

In Japan it seems to be PM Abe's statement on the 70th anniversary of WWII, while in South Korea it is the 100th anniversary of the March 1st Movement that have strongly urged the two neighbors to reconfirm their own modern self-portraits. Neither of them would accept each other's self-portraits as they are (the Japan-South Korea identity clash). South Korea is inclined to emphasize its idealized past rather than the real truth of history and cannot tolerate the humiliating Japanese rule. Consequently, South Korea cannot stop accusing the brutality of the Japanese rule and extolling the Korean people's brave resistance and the great sacrifices they paid. Japan claims the legitimacy of its rule of Korea and its contribution to the modernization of South Korea. This is a controversy over different "memories" and is expected to last for many years. It is necessary for Japan to continue its efforts not to make the controversy a political issue, but, as much as possible, to take it up as a theme for objective academic research.

The intervention of the Korean judiciary in the debate on history issues seems to have brought to the surface a latent dispute over traditional political culture. Korean culture can be viewed as a neo-Confucian culture. It is a political culture unfamiliar to the Japanese. Likewise, the Japanese warrior-dominated culture (Samurai culture) is unfamiliar to Koreans. The Japanese samurai culture demands one should kill oneself by hara-kiri (belly cutting) if one failed to keep a promise. The Korean neo-Confucian culture holds justice in the highest esteem. It matters more for a Korean to conform to justice for a promise he has made to others than to fulfill the promise itself. These cultural traits are found at the root of the identity clash between Japan and South Korea. Since the beginning of the 2010s, the cultural clash was extended to a leadership clash (Lee Myung-bak vs. Yoshihiko Noda, Park Geun-hye vs. Shinzo Abe, Moon Jae-in vs. Shinzo Abe) and further spread to the national level.

2. What increased history frictions? --- The collapse of the Korean authoritarian regime and transformation of the international system

The democratization of South Korea and the end of the Cold War can be mentioned as the impetus for the history frictions between Japan and South Korea. Transformation of the international political system since the end of the Cold War exposed frictions between Japan and South Korea, which had been limited to a minimum. When the 1965 Treaty on Basic Relations between Japan and South Korea came into force, South Korea, under the Park Chung-hee administration, had to address the two critical issues of security and economic development; therefore, it was obliged to prioritize an amicable relationship with Japan. Until the end of the Cold War, however, South Korea achieved economic development and democratization. The Seoul Olympics in 1988 may be remembered as a turning point in the modernization of South Korea. From that time, the Japan-South Korea relationship that had been sustained by the Cold War and the South Korean authoritarian regime headed for collapse.

Meanwhile, China grew into an economic superpower in the 2000s. The Chinese economy became the world's second largest GDP in 2010, surpassing Japan. This process had a significant impact on Japan-South Korea relations, and its implications became manifest particularly in President Park Geun-hye's diplomatic policy. President Park referred to the situation where the more economic interdependence develops, the more history frictions increase as an "Asian Paradox," and called for actions to address this phenomenon. Against a backdrop of its increasing economic dependence on China, South Korea promoted responses to frictions with Japan over history issues, along with its China-focused diplomacy, conscious of a transformation of the international political system. After taking office in February 2013, President Park visited the United States in May of the same year, and made a speech in the US Congress, arguing, with Japan in mind, that "those who are blind to the past cannot see the future". Meanwhile, at the time of her visit to China in June of the same year, President Park requested that Chinese authorities install an An Jung-geun memorial. President Park visited China again in September 2015 to watch, from a position of honor on Tiananmen Gate, a military parade commemorating China's WWII victory over Japan.

The Abe administration resisted such a transformation of the international political system, promoted Abenomics, and strengthened the Japan-US alliance. Keeping up with President Park, Prime Minister Abe also delivered a speech in the US Congress and made efforts to restore the Japan-South Korea relations toward the end of the 50th anniversary year (2015) of the 1965 treaties. In November 2015, Prime Minister Abe visited Seoul to attend the Japan-China-South Korea summit and the Japan-South Korea summit, and in December of the same year, an agreement was reached between the Japanese and South Korea foreign ministers, on, among other issues, the establishment of a foundation for a solution of the comfort women issue. At that time the present author thought that this would serve as a milestone. The public opinion in Korea was almost evenly divided between pros and cons of the agreement. At the end of the year, however, North Korea carried out nuclear tests, and Korean people's concern swiftly shifted to the North Korean issue.

3. Why can the history issues not be solved? --- The increasing "intervention" of the Korean judiciary

What is the reason for the Korean judiciary's recent intervention in the two countries' frictions over history? In my opinion, it is also related to the end of the Cold War and the democratization of South Korea. This may be viewed as the delayed democratization of the Korean judiciary. The Korean judiciary seems to hold fast to the opportunity to restore its injured pride, to keep a certain distance from the administration, and establish its prestige. After the bitter experience when the Korean judiciary was a servant of the political power, it has now begun to behave as a "guardian of justice." However, from the viewpoint of checks and balances of the three powers, are the recent behaviors of the Korean judiciary constitutionally proper? No one ventures to monitor the Korean judiciary.

The beginning of the situation goes back to the Lee Myung-bak era. In August 2011, in the second half of the Lee administration, the Korean Constitutional Court judged the "inaction" of the Ministry of Foreign Affairs and Trade as unconstitutional, because the ministry had neglected to negotiate with Japan on the issue of comfort women. In May 2012, the Supreme Court of South Korea sanctioned the individual claim right of the former forced laborers. In Japan, there prevails a misunderstanding that the Moon Jae-in administration intervened in these history issues to intentionally highlight them. This is not true. The problem had emerged five years earlier. Rather, it should be noted that the Moon administration left the issue of forced laborers behind, thereby complicating it. The Park administration held back the proceeding of the forced labor trial and attempted to solve frictions with Japan over history by means of hardline diplomacy from 2013 through 2015. Therefore, during the Park Geun-hye era, the forced labor trial was completely suspended. This was an obvious administrative intervention.

After the 2016 candlelight protests brought down the Park administration, the Moon administration stopped intervention in the judiciary in respect for the judicial processes and has still kept its hands off the history issues. In March 2019, President Moon, conscious of public support for victim, made a statement to the effect that South Korea and Japan should diligently cooperate to substantially alleviate the victims' pain. In October 2018, the Supreme Court of South Korea, which had resumed the forced labor trial, dismissed an objection from Nippon Steel & Sumitomo Metal Corporation and ordered compensation for the former forced laborers. In November 2018, the Korean government announced the dissolution of the "Reconciliation and Healing" Foundation established in accordance with the Comfort Women Agreement.

It is unforeseeable at this moment whether or not the seized Nippon Steel & Sumitomo Metal Corporation's assets will be cashed out. The Japanese government demanded diplomatic talks between the two governments in accordance with Article 3 of the Agreement on the Settlement of Problems Concerning Property and Claims as soon as the steelmaker's assets were seized. South Korea is refusing to respond and the situation has reached a stalemate. If the seized shares are cashed, the Japanese government will have to take countermeasures. This is, however, not so easy. Even if diplomatic talks begin at all, they will not begin until the very last moment when the situation worsens and there is no choice but to advance, as many precedents teach us in negotiations with South Korea.

4. Three scenarios and three principles

It is impossible for either Japan or South Korea to ignore judgements made by its Supreme Court. Since the Korean judiciary views the forced labor trial as a civil lawsuit, the following three scenarios may be considered:

(1) Leave-it-alone option: If the Korean side disposed of the Japanese steelmaker's assets, in consequence of the exchange of countermeasures, the Japan-South Korea relationship would revert to the state preceding the 1965 Agreement on the Settlement of Problems Concerning Property and Claims, resulting in the collapse of the agreement. It is hard to predict what countermeasures will be taken. What is certain is that we would face the worst situation since the normalization of bilateral diplomatic relations.

(2) Arbitration: When the dispute becomes clarified, diplomatic negotiations should be started based on the 1965 Agreement on the Settlement of Problems Concerning Property and Claims. If this ends in failure, arbitration will be the next option. If all of these are unsuccessful, Japan will be obliged to file a suit at the ICJ. This scenario aims at solving the problem by judicial procedures. Decision may be entrusted to a binding third party arbitration.

(3) Reconciliation: The Korean government and corporations will establish a new foundation and realize a legal settlement with voluntary participation of Japanese corporations.

Again, the scenario (1) is a retaliatory dispute between the two countries. The bilateral relationship will revert to a non-agreement status. Given that Japan and South Korea are now in a state of complex economic interdependence, is it really possible for them to adopt this scenario? Japan is not in a position to take any countermeasures violating WTO rules.

The scenario (2) is the optimal solution if Tokyo and Seoul can behave with equanimity. Yet, is any arbitrator likely to appear? Can both sides accept an intermediate arbitration proposal? The Korean side will not agree to file a suit at the ICJ, taking into consideration its possible adverse effect on the Takeshima (Dokdo) issue.

The other option left is the scenario (3). There will be a Japanese backlash against the creation of a forced labor foundation in the wake of the dismantlement of the Comfort Women Foundation funded by Japan.

For the time being, it will be difficult to single out one and only scenario. In my view, one option may be a compromise between scenarios (2) and (3). In other words, when the preference of the both sides shifts from the scenario (1) to the scenario (2), some arbitrator may step in to propose the scenario (3). Then, the both sides will have no choice but to accept it. However, even if the scenario (3) is ultimately adopted, there will be some conditions to fulfill.

a. The Korean side should present a basic concept of a new framework without destroying the legitimacy of the old framework based on the 1965 Agreement on the Settlement of Problems Concerning Property and Claims that has been functioning for 50 years.

b. Compensation the new foundation can afford will not be unlimited. Compensation amount must be acceptable to the Japanese and Korean sides. The 100 million won (¥ 10 million) per capita mentioned by the Korean Supreme Court decision is quite expensive. It will be problematic if the number of compensation recipients is large.

c. The new foundation to be established must be a future-oriented organization capable of solving all history issues collectively and finally. The new foundation should merge the Comfort Women Foundation which is to be dismantled and utilize its resources to achieve the final solution of the comfort women issue.

A new factor is found in the current bilateral history frictions. Many Japanese people are furious about the frictions, but the Korean public is not as angry. It seems that in South Korea, hard-line movement groups fail to win all-out support from the public. The Korean business circles and major conservative newspapers are critical of the policies of the South Korean government. It is a gross mistake to think that President Moon is agitating public opinion and the whole country is ablaze. Noteworthy is Korean youth's low concern about the bilateral history issues. The evidence is that 7.5 million Korean tourists annually visit Japan.

(This paper was translated into English by Tsutomu Inuzuka, SSDP Associate)

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