식민지책임판결과 한일협정체제의 국제법적 검토

Abstract

On August 30, 2011, the Constitutional Court of Korea made a decision on the constitutional petition filed by Korean “comfort women” for the Japanese military and Korean survivors of nuclear bombing in during World War II. The Court held that the Korean government’s non-performance of its obligation to work proactively on diplomatic negotiation or arbitration under Article 3 of the 1965 Treaty on Basic Relations between Japan and the Republic of Korea (“Korea-Japan Basic Relations Treaty”) was unconstitutional. On May 24, 2012, the Supreme Court of Korea overturned the original ruling that recognized the effect of a Japanese court decision running against the core values of the Korean Constitution (i.e. forcible mobilization of Korean men and women during the colonial period viewed as a lawful act). These were historic decisions clearly reiterating that the victims’ rights to compensation—for illegalities against humanity involving the Japanese state power and other unlawful acts associated directly with its colonial rule—were not part of what was agreed on under the Basic Relations Treaty. In this paper, we discuss the limitations of and problems with lawsuits for “postwar compensation” filed in Japan, including the multiple “obstacles” of Japan’s failure to acknowledge the truth, the amount of time passed since those atrocities were committed, the lack of response or solution from the state, and political restraints. We then examine the 2010 Joint Statement from Korean and Japanese intellectuals who declared the 1910 Korea-Japan Annexation Treaty “already null and void,” followed by the ideological shift of the international community from nationalistic philosophy to human rights-centric thinking, and the 2001 Durban Declaration and Programme of Action which proclaimed cleansing the legacy of colonialism to be a historic mission. These rulings on Japan’s “colonial responsibility” have been denounced by the Japanese government, businesses and media as “politicized,” claiming that such responsibility was already fulfilled once and for all by the Korea-Japan Basic Relations Treaty. More recently, a lengthy register of colonial victims was found in the Korean Embassy to Japan. With this respect, Ihara Junichi, director general of the Asian and Oceanian Affairs Bureau at Japan’s Foreign Ministry, claimed the claims of the United States and other Allied powers was resolved with the 1951 San Francisco Peace Treaty; as for Korea which it did not fight a war against, he asserted that the Basic Relations Treaty, which was allegedly made to handle issues with the country’s “colonial rule,” put an end to its colonial responsibility. The Korean court decisions call for Japan’s compensation for its colonial injustices, or “illegalities against humanity involving the Japanese state power and other unlawful acts associated directly with its colonial rule,” while the Japanese government argues, “The Korea-Japan Basic Relations Treaty, signed as a separate postwar agreement on Japanese colonial rule, waived all the relevant rights to compensation.” In other words, the Japanese government claims that Korean courts made unfair and politicized decisions going against what was agreed upon between the two countries when individual victims’ rights to compensation for forced labor and other damages caused by Japanese colonial rule had already been addressed with the Basic Relations Treaty. It is on this basis that this paper that this paper reexamines the decisions on “colonial responsibility” as well as the arguments of its advocates and opponents. The Japanese government has had the normative recognition that, as the forced annexation of Korea and Japan in 1910 was made by the conclusion of the Korea-Japan Annexation Treaty which was legal under the international laws of the time, Japan’s forcible occupation of Korea and subsequent colonial rule made on this basis were also legitimate. It has denied its responsibility to compensate for illegalities against humanity involving its state power and other unlawful acts associated directly with its colonial rule; it has also been consistent in claiming that the conclusion of the Korea-Japan Basic Relations Treaty brought these issues to a complete end. Then comes the question: Was the Basic Relations Treaty actually intended to address issues with Japan’s “colonial rule,” as argued by Ihara Junichi? To answer this question, this paper empirically reviews the proceedings of the Japanese Diet from the conclusion of the Treaty in 1965 through the country’s first apology for its colonial rule in 1995. In the meeting of the Special Committee on Treaties and Agreements between Japan and the Republic of Korea on November 5, 1965, then-Prime Minister Sato said the 1910 Korea-Japan Annexation Treaty was lawfully concluded; Foreign Minister Shiina also stated that, with the conclusion of the 1965 Korea-Japan Basic Relations Treaty, the diplomatic protection of the two countries was waived while the compensation rights of individuals remained. On August 15, 1995, Prime Minister Murayama expressed his apology for Japan’s colonial rule and aggression. In the general session of the Upper House on October 5, however, he claimed the 1910 Annexation Treaty was entered into in a legally effective manner. In the meeting of the Upper House Budgetary Committee on August 27, Foreign Minister Yanai Shunji responded to a question by saying individual rights to compensation existed. Furthermore, the proceedings of the Japanese Diet—from the conclusion of the Korea-Japan Basic Relations Treaty in 1965 through Japan’s first apology for its colonial rule in 1995—hint that Japanese government officials have been unaware of the country’s standing as the assailant and thus have not recognized its “colonial responsibility.” Until former “comfort women” filed a lawsuit in the United States in 2000, they provided fairly consistent answers that diplomatic protection was “waived only partially.” In other words, they believed the Japanese government could not override individual rights to compensation. Against this backdrop, it would be fair to say that the Restitution claims to the government of Japan, prepared in September 1949 in regards to the reality of “colonial responsibility” that should have been incorporated into the Basic Relations Treaty, represented a rational demand for legitimate rights to recover colonial sacrifices—rather than a retaliation for penalizing Japan. With only one tenth of forced laborers reporting to the United States Army Military Government, the amount of compensation for damages and sacrifices caused by the forcible annexation of Japan and Korea and the subsequent Japanese colonial rule was estimated at 31.4 billion yen, or two billion dollars at the exchange rate of the times, which is comparable with the Economic Cooperation Fund of 1965. Japan’s colonial responsibility specified in the Restitution claims to the government of Japan was left unaddressed under the Korea-Japan Basic Relations Treaty as the Japanese government had no intention to fulfill such responsibility. Taking advantage of the United States’ Cold War strategy in East Asia, it believed its colonial rule over Korea was justifiable, viewing it as a “dispensation” for Koreans which helped modernize them. Focusing on “property” and “claims” as stipulated in Article 4, Paragraph (a) of the San Francisco Peace Treaty, the negotiations between Korea and Japan on postwar claims did not specify Japan’s responsibility for colonial rule. This, paradoxically, left “colonial responsibility” as an issue unresolved and to be therefore addressed under the Korea-Japan Basic Relations Treaty. In other words, the victims’ rights to compensation for illegalities against humanity involving the country’s state power and other unlawful acts associated directly with its colonial rule could hardly be seen as subject to the Korea-Japan Basic Relations Treaty. Since the conclusion of the Basic Relations Treaty, the Japanese government had consistently claimed that individual claims under the Treaty continued to exist. In 2000, however, its stance changed following a lawsuit filed in the United States by former “comfort women” for the Japanese troops, and Japanese courts have since made “politicized decisions” on this basis. Ihara Junichi’s claim that the Treaty was made to resolve the issue of Japan’s “colonial responsibility” mirrors the Japanese government’s stance. Released in 2010 as the centennial of forcible annexation between Korea and Japan, the Joint Statement of intellectuals from the two countries is the East Asian version of the 2001 Durban Declaration and Programme of Action. Getting the regional history right, it suggests, will lay the foundation for seeking a genuine process of historical reconciliation. Going beyond “negative peace” as a basic element of international laws premising an apology and compensation for colonial rule and war of aggression, we should now go for “positive peace” in which human dignity and rights are respected as universal values. This will make sure that another 50 years following the 50th anniversary of the Korea-Japan Basic Relations Treaty in 2015 serves as the starting point for working hand in hand to bring a East Asian peace community into reality.