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What will Become of Japan-South Korea Relations?
The 1965 Japan-South Korea Treaty System in Jeopardy

Masao Okonogi

1. Introduction: Clash of Identities

A distinction should be made between the two questions of what the historical friction between Japan and South Korea is and why it is now increasingly intensified. Simply put, the former is the clash of the national identities of the two countries, and the latter is associated with the intergenerational transmission of collective memory that causes "memory politics" and "memory wars."

Identity is self-awareness (Who am I? / self-portrait) based on language, culture, religion, history and others. It gains stability by the approval of others. It is a "self-understanding from outside," which is always accompanied by a "desire for recognition." Therefore, as Francis Fukuyama explains, the "politics of identity" is not the politics of desire or reason, but the "politics of dignity" (thumos, spirit, pluck), which turns to the "politics of resentment" when it fails to gain recognition. Moreover, as Anthony D. Smith points out, the establishment of national identity is per se the central goal of the nationalist movement. Therefore, the clash of identities can expand with ease into that of nationalisms.

From this perspective, have the Japanese and Koreans been truly disputing to examine historical facts? Or, once historical facts are confirmed, will they certainly accept them? Wouldn't they attempt to protect their own historical "dignities?" Such are my retrospective musings as one who advised Prime Minister Koizumi on the idea of the Japan-South Korea Joint History Research Project and served as the Japanese secretary on the first committee.

In the light of identity politics, the largest source of misfortune in modern Japan-ROK relations were Japan's acquisition, after the Russo-Japanese War, of Imperial Russia's interests in Kanto Province and the South Manchurian Railway --- and the Japanese "annexation" of Korea. While the politics of "protection" implies respect for identity, the goal of "annexation" is a territorial expansion and the deprivation of nationalism and identity. With the advantage of hindsight, Meiji Japan should have adopted as its foreign policy the British model of "non-intervention" in the continental Europe and a robust naval buildup. Even if Korea had become a colony of Russia, Japan could have supported, from behind, its independence movement. The Meiji government, which emerged victorious from the Boshin War and the Sino-Japanese War, had, however, little experience in relations with the Asian continent; it went so far as to, among other things, assassinate Empress Myeongseong, relying too much on military force.

The second source of misfortune was the protracted Sino-Japanese War and the wartime mobilization toward the end of World War II, especially the mobilization of comfort women and forced laborers. Although it was a wartime mobilization, it has come to be seen as symbolizing Japan's colonial rule over Korea. It has come to bear a significant meaning in the sense that it was utilized as supportive evidence for the Supreme Court of Korea's rulings that "if Japan's annexation of Korea was illegal, then the wartime mobilization was also illegal."

2. "Politics of Memory" and "War of Memory"

The recent intensification of historical friction between Japan and South Korea may be explained by the fact that after the end of the Cold War, the issue of comfort women and forced laborers came to be discussed in association with the "politics of memory" or the "war of memory." In other words, while Japan and South Korea were spending time in resolving their bilateral historical friction, the victims grew older, and the promoters of movements accusing the wartime mobilization changed from the victims themselves to the successors of collective memory, i.e., the younger generation of activists, lawyers, and politicians who are not victims themselves.

As Professor Shinya Hashimoto of Kwansei Gakuin University points out, the "politics of memory" is not peculiar to Japan and South Korea. He discussed the "politics of memory" by examining the example of Estonia, which underwent two totalitarian regimes under Soviet rule and Nazi rule. He analyzed the "Bronze Night," a post-Cold War upheaval that occurred in Tallinn in April 2007. Professor Jie-Hyun Lim of Sogang University (Seoul) also employed the concept of "Victimhood Nationalism" to discuss Israel, Poland, and South Korea.

The two professors point out that "hereditary collective memory" is characterized by an oversimplification of historical reality, confining it to the world of good and evil dualism doctrine --- perpetrators and victims. However, if the victim is an absolute "good," the perpetrator, denounced as an absolute "evil," is also obliged to respond based on his own "hereditary collective memory." As a result, the conflict between the two sides intensifies, and reconciliation and compromise become increasingly difficult.

Amid the international trend toward reconciliation and unity --- the end of the Cold War and European integration, the "politics of memory" in Japan and South Korea began with the democratization of South Korea and the inauguration of the "non-LDP" Hosokawa administration in Japan. The Kono Statement, released just before Prime Minister Miyazawa's resignation in August 1993, was followed by: the Gyeongju Summit between Kim Young-sam and Morihiro Hosokawa in November of the same year; the Murayama Statement in August 1995; the Joint Declaration by Kim Dae-jung and Keizo Obuchi in October 1998; and the Japan-ROK co-hosting of the Soccer World Cup in May-June 2002. This political trend was interrupted by the adoption of the "Takeshima Day" ordinance by the Shimane Prefectural Assembly in March 2005, which President Roh Moo-hyun heavily criticized.

During the second term in office of President Lee Myung-bak, the "politics of memory" definitely expanded into a "war of memory." It was ushered in by the Constitutional Court of Korea's August 2011 ruling on the "comfort women" issue and the Supreme Court of Korea's May 2012 ruling on the "forced labor" issue. At that time, the Constitutional Court of Korea acknowledged diplomatic protection for former comfort women; the Supreme Court of Korea judged the illegality of Japanese colonial rule, concluding that the individual claims of former forced laborers remain intact. Both rulings dismissed previous interpretations on the "Treaty on Basic Relations between Japan and the Republic of Korea (from here ‘the Japan-Korea Basic Relations Treaty')" and the "Agreement Between Japan and the Republic of Korea Concerning the Settlement of Problems in Regard to Property and Claims and Economic Cooperation (from here ‘the Japan-Korea Claims Agreement')" after a lapse of 40-50 years, shaking the underpinnings of the so-called "1965 system" and the "1998 system."

The "1965 system" represents the normalization of bilateral diplomatic relations by acknowledging the "already null and void" of all treaties or agreements concluded before the Japan-Korea "Annexation" Treaty of 1910, coupled with the mutual waiver of claims and economic cooperation. The ambiguity as to from when the old treaties, including the "Annexation" Treaty of 1910, were to become null and void left room for dual interpretations. The 1965 Treaty and Agreement included no wording expressing reflections or apologies regarding the Japanese colonial rule.

The "1998 System" is a cooperative system established by "Japan-Republic of Korea Joint Declaration: A New Japan-Republic of Korea Partnership towards the Twenty-first Century" dated October 1998. On the occasion of President Kim Dae-jung's official visit to Japan, Prime Minister Obuchi humbly acknowledged the historical fact that Japanese colonial rule inflicted enormous damage and suffering on the Korean people and expressed sincere remorse and heartfelt apology. Kim Dae-jung sincerely admitted the Prime Minister's perception of history, expressed appreciation, and pledged to develop future-oriented relations based on reconciliation and good neighborly cooperation. This was a political revision of the "1965 system."

It is not necessarily clear why the South Korean judiciary, especially the courts, often derided as the "servants of power," have begun to intervene in the interpretation of bilateral treaties and agreements. In my opinion, the democratization of South Korea has liberalized its judiciary and revived a traditional Korean political culture, namely, the Confucian tradition of political surveillance. This can be said to be a revival in 21st century South Korea of Confucian moralism and legalism, which seems to have been transformed into judicial activism, constraining the incumbent administration.

3. The Structuralization of Historical Friction

Regarding the South Korean judiciary's "intervention in historical interpretation," there was a significant gap between the responses of the Park Geun-hye administration and the Moon Jae-in administration. President Park attempted a diplomatic handling of the historical friction with Japan. She repeated criticism of Japan's stance on the historical issues while putting the brakes on the progress of the comfort women trials. She took the opportunity of her visits to China and the United States to criticize Japan. In November 2015, which fell upon the 50th anniversary of the signing of the Japan-Korea Basic Relations Treaty, President Park met with Prime Minister Abe in Seoul, thereby paving the way for a Japan-South Korea agreement on the comfort women issue.

Afterward, during his visit to South Korea in December 2015, Japanese Foreign Minister Kishida pledged to his Korean counterpart Yun Byung-se to contribute one billion yen to the establishment of the "Reconciliation and Healing Foundation" to care for comfort women survivors and conveyed Prime Minister Abe's apology. In addition, the two governments agreed to refrain from condemning or criticizing each other in international fora. The two foreign ministers described the solution of the comfort women issue as "final and irreversible." Thus, the comfort women issue was diplomatically dealt with, albeit with much difficulty.

Under the Moon Jae-in administration, which came to power in May 2017 following the impeachment of President Park, the Supreme Court of Korea initiated a retrial of the remanded case of wartime forced labor and issued a damage compensation order to Nippon Steel & Sumitomo Metal Corporation in October 2018 and to Mitsubishi Heavy Industries, Ltd. in November 2018, respectively. In November of the same year, the South Korean government announced the dissolution of the "Reconciliation and Healing Foundation" Foundation established based on the comfort women agreement. In January 2019, former President of the Supreme Court of Korea Yang Sung-Dae, who had held back the proceeding of the comfort women trial under the Park administration, was arrested. The Moon administration promoted the "war of memory" with its strict commitment to the mutual independence of state powers, victim-centeredness, and the "liquidation of pro-Japanese remnants."

However, the "final blow" that has ushered in the current bilateral stalemate came from the Japanese side. As time elapsed, the Japanese government became increasingly alarmed that the Japan-Korea Basic Relations Treaty and the Japan-Korea Claims Agreement would be hollowed out and the 1965 system would collapse. Prime Minister Abe decided to strike back at South Korea after the 2019 Osaka Summit (June 28-29) and before the announcement of the Upper House election (July 4). On July 1, the Japanese Ministry of Economy, Trade and Industry (METI) announced an "Update of METI's licensing policies and procedures on exports of controlled items to the Republic of Korea." This was a linkage politics because it brought together two issues with different points of contention.

Preceding this, Foreign Minister Taro Kono, in an interview with the Dong-a Ilbo (June 26), clearly expressed Japan's intentions. Kono warned, "The decisions of the Supreme Court of Korea on the former Korean laborers clearly contradict the Japan-Korea Claims Agreement, which confirms that problems in regard to property and claims between the two countries have been ‘completely and finally settled,' and therefore overturn the legal foundation of the friendly and cooperative relationship that Japan and the Republic of Korea have developed since 1965."

4. Current Situation and Prospects

At a New Year's press conference in January 2021, President Moon Jae-in said he was a little embarrassed at the Seoul Central District Court's ruling in favor of the plaintiffs in a comfort women lawsuit. On the other hand, he acknowledged that the December 2015 agreement between Japan and South Korea on comfort women was an official agreement between the two governments and referred to his intention to avoid the "cashing out" of distrained assets of the Japanese defendant companies in the forced labor trial. With the expiration of Moon's presidential term in May 2022, the judiciary's decisions may be applying pressure to the Moon Jae-in administration. Also, in his first phone conversation with Prime Minister Kishida on October 15, 2021, President Moon described the point of contention between Japan and South Korea as differences in legal interpretation over the scope of application of the 1965 Japan-Korea Claims Agreement.

After the turn of the year, the Seoul Central District Court has issued different rulings --- one ordering the Japanese government to pay compensation and the other dismissing the case due to sovereign immunity --- in two comfort women lawsuits. As for the forced labor lawsuits, the judiciary has dismissed new lawsuits one after another on account of the statute of limitations. Nevertheless, as already seen, in October and November 2018, the Supreme Court of Korea finalized its compensation rulings against Nippon Steel & Sumitomo Metal Corporation and Mitsubishi Heavy Industries in the forced labor trials. As for the MHI case, the plaintiffs were instructed in September 2021 to sell some of the patents and trademarks they distrained to secure compensation. The defendant filed an immediate appeal, but if the Supreme Court of Korea dismisses it in the spring of next year, the auction procedure will begin. Little time is left for a diplomatic solution.

The 2022 South Korean presidential election is scheduled for March 2022, while the Japanese House of Councilors election will take place in July 2022. The two governments will unlikely resume full-scale diplomatic talks prior to those elections. In his policy speech on October 8, Prime Minister Kishida said, "The Republic of Korea (ROK) is an important neighbor. With a view to restoring sound relations between us, based on Japan's consistent position, I will strongly urge the ROK side to make appropriate responses," maintaining his existing basic position.

Needless to repeat, Japan's assertion that "the denial of the 1965 system would destroy the legal basis of Japan-Korea relations" is well-founded. If the 1965 system is overturned, there will be no foundation left for a fresh start. Article III of the Japan-Korea Claims Agreement, to which the Japanese side adheres, stipulates that "Any dispute between the High Contracting Parties concerning the interpretation or the implementation of this Agreement shall be settled primarily through diplomatic channels," and that "Any dispute which cannot be settled… shall be submitted for decision to an arbitral commission of three arbitrators" consisting of two arbitrators each of whom should be appointed by each of the two governments and the third to be agreed upon by both of them. At the Japan-ROK vice-ministerial-level meeting in June 2019, the Japanese side proposed the establishment of an arbitration commission.

If South Korea proposes to create an arbitration commission under the Japan-Korea Claims Agreement, Japan will not or cannot reject such a proposal because it claims that both parties should abide by the Agreement. Can we not expect the commission to come up with some eclectic cogent solution persuasive to the people of both countries? Such a solution could constitute part of a larger diplomatic initiative. Such would be a much more proper and sensible solution than taking the matter to the International Court of Justice.

Finally, what impact will the prolonged geopolitical competition between the two superpowers with different regimes --- the United States and China --- have on Japan-South Korea relations? This is an issue of systemic change that encompasses Japan-South Korea relations. The Biden administration has been tightening and organizing strategic cooperation with its allies and friends. In addition to the FOIP, large- and small-scale international cooperations are being forged and promoted under US leadership to address each specific issue --- the QUAD, Japan-US-ROK coordination, and most recently, the AUKUS. Interestingly, such US efforts will bear the effect of curbing the growing historical friction between Japan and South Korea and promoting their bilateral cooperation in other areas. If the US-China confrontation and the North Korean threat are exacerbated, this trend will become more apparent --- it would have been even more so in the Cold War era.

Amid the US-China confrontation, Japan and South Korea should firmly recognize that they are US allies and share the same fundamental values: democracy, the market economy, and respect for freedom and human rights. Furthermore, both countries are middle powers with high industrial technology and are geographically adjacent to each other. South Korea is more dependent on economic relations with China than Japan, but their difference in this respect is a matter of degree. In short, both Japan and South Korea face the same problems and find strategic interest in balancing deterrence and diplomacy against China. They should firmly recognize this point and seek a common strategy, which would strengthen their international positions. Their efforts to share a long-term strategy will help cultivate common identity between Japan and South Korea and mitigate their historical friction.

References

  • Francis Fukuyama, Identity: The Demand for Dignity and the Politics of Resentment, Farrar, Straus and Giroux, New York, 2018.
  • Anthony D. Smith, Nationalism, 2nd Edition, Polity Press, Cambridge, 2010.
  • Shinya Hashimoto, The Politics of Memory: Disputes over Historical Perceptions in Europe, Iwanami Shoten, Tokyo, 2016.
  • Jie-Hyun Lim, "Victimhood Nationalism and History Reconciliation in East Asia," History Compass, Volume 8, Issue 1.

(Professor Emeritus, Keio University)

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