한일청구권협정의 국제법적 문제점에 대한 재검토

Abstract

Last year marked the centennial of Japan’s forced annexation of Korea. The occasion provided momentum for looking into the embedded causes of Korea-Japan conflicts during modern history and to find a solution to lingering disputes. It also served as a turning point in recognizing the historical task of our times and the call of justice. One of the most notable incidents in the centenary was a statement that the 1910 Annexation Treaty was null and void. The statement was jointly adopted by 1,118 Korean and Japanese intellectuals on July 28, 2010, ahead of the 65th anniversary of Korea’s Aug. 15 liberation from Japan. The statement, initiated by 214 intellectuals on May 10, was based on “historic justice” advocated by the signatories from both countries. However, then-Japanese Prime Minister Naoto Kan issued a statement on Aug. 10 saying that Korea was annexed by Japan against the Korean people’s will. But he said that the annexation treaty was legal. His remarks implied that the treaty might have been problematic on moral grounds, but it was effective from the standpoint of international law. As such, the Japanese government has long maintained a position that the treaty was legitimate. Such a stance was reflected in the 1965 Treaty of Basic Relations between South Korea and Japan which sought to tackle Japanese colonial rule and normalize bilateral ties. The problem is that the 1965 treaty was initialed without considering that the annexation treaty could be declared invalid. The year 2015 will mark the 50th anniversary of the 1965 treaty. However, the Japanese position on the annexation treaty remains a dispute to be settled in order to forge new relations between Korea and Japan. The main purpose of the 1965 treaty was to liquidate the Japanese colonial rule and normalize basic relations between Korea and Japan. The most important agenda was war reparations. Regrettably, the negotiations were not focused on how to compensate for damage inflicted upon Korea by Japan’s colonial rule. Instead, the negotiations put a stress on economic cooperation between the two nations with little regard to “historic justice,” reflecting the U.S.-led global strategy of ensuring security and economic stability amid the Cold War. I want to make three points in the perspective of international law because Japan refused to admit its legal responsibility for the liquidation of the colonial past, apart from moral obligations. The first point is that the negotiations paid little attention to war reparations and compensation for what was seen as illegal occupation and colonial rule based on the forced annexation treaty. Therefore, Japan’s provision of grants and loans to Korea became “independence bounty” or “economic aid.”During the negotiations, Korea could not raise the issue of compensations for Japan’s wartime atrocities such as “comfort women,” or sexual slaves mobilized for frontline Japanese soldiers during World War II. The nation also failed to hold Japan legally responsible for its international crimes. The second point concerns Korean victims’ individual rights to compensation for the damages and their suffering from colonial rule. These rights are a core part of human rights, which individuals cannot forfeit in the face of reparations agreements or diplomatic protection between states. Japan cannot deny the rights on claims for individual compensation through its domestic legislation, e.g. Law No. 144. It is worth noting a draft Convention of Diplomatic Protection adopted by the U.N. International Law Commission in its 58th session in 2006. The draft implied that it is not right to see infringements on human rights vested in individuals as the violation of rights of their state. The draft could bring a significant change in the traditional understanding of diplomatic protection that has led to the sacrifice of individual rights for the sake of nations. In this connection, the Constitutional Court of Kotea made a landmark ruling on August 30, 2011 that it is the government’s duty to settle disputes over Japan’s refusal to compensate former “comfort women.” The decision carries significant implications as the court has expanded the scope of state obligations to better protect the basic rights of the people. We would like to establish correct history and seek reconciliation with Japan over this painful history. This task is part of resolving the remaining problem after the centennial of the annexation and before the 2015 observance of the golden jubilee of the normalization treaty. The Japanese government should realize that denial of its disgraced history of colonialism and militarism is tantamount to the negation of “historic justice” and the rejection of peace. It should join efforts to settle the fundamental problem of historical conflicts between the two neighbors in order to promote peace and co-prosperity in East Asia in the 21st century. We hope that 2015 will be a year that brings genuine reconciliation between Korea and Japan.