한일청구권협정상 강제징용배상청구권 처리에 대한 국제법적 검토

Abstract

In May 2012, the Korean Supreme Court handed down “landmark” judgments on the cases involving individual claims held by some Korean victims of forced labour by Japan. In the two cases brought against the Mitsubishi Heavy Industries and the New Nippon Steel, the Supreme Court held that the individual claims of the Korean victims of forced labour by the Japanese state and Japanese companies were not and could not settled away by the “lump-sum settlement” generally known as the 1965Claims Settlement Agreement between Korea and Japan. These judgments, while generally well received by Korean society that is increasingly concerned by the growing conservatism in Japan, raise a number of questions from international law perspective. The Court reasoned that the issue of individual claims arising out of tortious acts by the Japanese side had not been covered by the 1965 Agreement, the reason being that the two sides could not agree on the illegality or otherwise of Japan’s colonization of Korea. According to the Court, even if the question of individual claims had fallen under the coverage of the Agreement, what could be waived was limited to the right of diplomatic protection held by the Korean Government. To waive the claims held by the citizens for diplomatic purposes would go against the spirit of modern legal principles. This article conducts a critique of these judgments and offers conclusions diverging substantially from it. First, on the question of whether the individual claims fall under the subject-matter scope of the 1965 Agreement, the author answers in the positive, based on, among other, the interpretation of the Agreement text, analysis of the travaux préparatoires and the subsequent practice of Korea and Japan. Even though both sides differed substantially on the illegality or otherwise of the Japanese colonization and the nature of the monies provided under the Agreement, the fact remains that all the outstanding claims between the Korean Government and Korean nationals, on the one hand, and the Japanese Government and Japanese nationals, on the other, were finally and completely settled by the Agreement. To use the term in wide currency in domestic law, the Agreement was a “settlement” aimed at the elimination of outstanding legal problems between the parties concerned in a final and comprehensive manner. Secondly, the Court calls into question the permissibility of negotiating away individual claims and rights through lump-sum settlements. It is beyond doubt that the Court’s reasoning firmly founded on the protection of human rights is very laudable. However, such reasoning may be criticized as an uncritical transposition of domestic legal thinking onto a substantially different normative sphere, i.e.,international law. The positivity and legality of lump-sum settlements is widely established even today. It will be very difficult to doubt their positivity and legality in 1965. Thirdly, these judgments to be approached from the angle of the well observed principle of judicial self-restraint. The judgments go against the view consistently expressed by the executive branch of Korea. It is expected that the judgment will not bring final closure to the complicated question. Instead, it will help open a legal and diplomatic Pandora’s box, further complicating the already burdened relations between Korea and Japan. The advisability of the judicial branch venturing into a highly treacherous realm (called diplomacy) is to be discussed in great earnest.