STAGGERING LOGIC BEHIND RECENT ANTI-JAPANESE JUDGMENTS BY SOUTH KOREAN TOP COURT
Two decisions recently rendered by the Supreme Court of South Korea—one in late October and the other late last month—can only be described as outrageous. In both decisions, the court ruled in favor of Korean workers demanding compensation from Japanese companies for alleged coercive labor in wartime Japan.
I say “outrageous” not only because the decisions run counter to the 1965 agreement signed between Japan and South Korea, settling all matters relating to Japan’s rule of Korea, but even more so because these rulings show an utter contempt for Japan and an egregious disregard of international law.
On December 7, I invited one man and five women to discuss issues relating to former Korean “conscripted workers” on my two-hour weekly “Genron” Internet television news show. The man was Professor Tsutomu Nishioka, a Korea specialist eagerly sought after by the media today. Nishioka serves as a senior fellow at the Japan Institute for National Fundamentals, a privately-financed think tank that I head.
The assertion that Japan’s annexation of the Korean Peninsula was illegal is central to the South Korean top court’s rulings against Japanese corporations. Below is what we see as the crux of the rulings, based on an informal translation of the verdicts done voluntarily by several lawyers in Japan.
“We must make absolutely clear that the plaintiffs’ claims for damages are for compensation for mental pain suffered due to inhumane and unlawful acts on the part of these Japanese corporations, whose actions were directly connected with the illegal execution of colonial rule and a war of aggression against the Korean Peninsula by the Japanese government.”
The judgments further state:
“It must be made clear that the plaintiffs are demanding solatia for mental suffering as earlier stated, not unpaid wages or indemnities.”
This part of the judgments notes that the high court refuses to accept the judgment of the Japanese Supreme Court against the plaintiffs in their unsuccessful suits against two Japanese corporations in Japan—Nippon Steel and Sumitomo Metal Corp. and Mitsubishi Heavy Industries Ltd. The Korean court asserts that the Japanese ruling was “based on a normative recognition that Japan’s colonial rule of the Korean Peninsula and its people was legal.”
The Korean judgments further state: “To accept the decision by the Japanese Supreme Court runs counter to the order and public morality of the Republic of Korea.”
Japan Must Hold Its Ground with South Korea
In a nutshell, the Korean side brands Japan’s colonial rule of Korea as illegal, completely rejecting the argument of the Japanese side. Nishioka pointed out:
“The four plaintiffs who sued Nippon Steel actually weren’t ‘conscripted workers.’ They sought employment in Japan by responding to advertisements in a Korean daily, worked for a Japanese corporation just like their Japanese counterparts, and received regular salaries. Had they had back wages, they would have had two opportunities right after the war to get paid back. They eventually got home safely, and since they had not been wounded or injured, the South Korean government didn’t offer them any special payments. But the South Korean Supreme Court judges came up with a pretext for ordering Japanese companies to make compensation payments, claiming that Japan’s annexation was illegal and therefore the Japanese corporations have the obligation to pay compensation for the mental suffering sustained by the plaintiffs, who they allege were coercively taken to Japan to work.”
If the South Korean side applies a logic advocating “compensation for mental suffering” to lawsuits related to Japanese actions in Korea under Japanese rule, virtually anything can constitute grounds for compensation claims. For instance, Koreans could assert they suffered mentally because Japanese rulers made them use Japanese or worship at Shinto shrines.
The logic that provided the foundation of such a demand is the claim that Japan illegally annexed the Korean Peninsula (1910-45). Negotiations between the two governments lasted 14 long years, ending 1965, when two important diplomatic documents were signed en route to normalization of relations—the Treaty on Basic Relations between Japan and the Republic of Korea, and the Agreement between Japan and the Republic of Korea Concerning the Settlement of Problems in Regard to Property and Claims and Economic Cooperation. It is true that the two sides argued bitterly over whether or not Japan’s rule had been legitimate, with the negotiations lasting for a seemingly indefinitely period of time. Finally, in the end they did exercise ingenuity in reaching a compromise.
Article 2 of the basic relations treaty stipulates: “It is confirmed that all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void.”
The Japan-Korea Annexation Treaty was signed on August 22, 1910. The international community, including the US, Britain, and Russia, recognized the annexation based on a variety of treaties and agreements that had previously been signed between the two nations.
It was only natural for Japan to assert in post-war bilateral negotiations that its annexation of the Korean Peninsula had been fully legitimate, in light of international law. However, in an effort to advance their bilateral relations, the two governments reached a compromise.
As noted above, they agreed that “all treaties or agreements concluded…before August 22, 1910 are already null and void.”
“Japan took the position that when the treaty was signed (in 1965), South Korea was ‘already’ an independent nation having gained the status in 1948, thereby recognizing the de facto reality that all the treaties and agreements signed in 1910 and before were ‘already’ null and void. Japan continued to contend that its annexation of Korea had been valid and legitimate at the time it had taken place (1910). But South Korea took a different position. It asserted that the word ‘already’ was simply an adverb that little affected the substance of the treaty, and insisted that the wording allowed it to interpret Japan’s annexation as unlawful from the beginning (in 1910).”
It is an international practice that, when negotiating parties disagree on the interpretation of a diplomatic document, they are customarily called on to refer to its English version. I believe the English version of the Japan-South Korea basic agreement fully proves the correctness of the Japanese position.
South Korea’s contention about the illegality of the annexation is extremely unjust. Now that its Supreme Court has rendered unjust rulings, however, the Japanese side may not be able to effectively wage an ongoing ‘information war’ with South Korea by merely contending that all annexation-related issues “have been settled completely and finally” under Article 1 of the 1965 agreement. We must hurry to prepare our next few moves effectively.
First and foremost, every possible legal countermeasure must be worked out. The name of the game is a strong resolve to hold our ground. On December 4, a zealous South Korean legal team attempted to call on Nippon Steel officials at their Tokyo headquarters, but was not allowed beyond the reception desk. The team left a letter demanding that Nippon Steel reply by December 24 how it plans to restore the rights of the plaintiffs, including compensation for damages and how the compensation would be paid.
Long and Fierce Legal Battle ahead
If the Japanese side refuses to follow the judgments by the South Korean top court, the plaintiffs’ side is expected to file a motion to seize assets owned by Nippon Steel or Mitsubishi in Korea. It is important for the Japanese side to be ready to retaliate by seizing Korean assets in Japan.
With international public opinion fully in mind, we must also earnestly prepare for a public relations battle over the history of the war. In this type of conflict—a war of information—it is pertinent to disseminate solid facts about how Japan treated wartime Korean workers and why the claims for compensation for their mental suffering do not make legal sense. In this regard, Nishioka is seriously concerned that Japan lags far behind its adversary, observing:
“Our diplomats today have little knowledge about such matters as the working conditions of Korean laborers in wartime Japan and their payment status. In sharp contrast, the anti-Japanese forces, made up of Japanese themselves to tell the truth, have since the 1980s campaigned against their government with the logic that Japan annexed Korea illegitimately, steadfastly honing this ideology over the years. When it comes to historical facts pertaining to Japan and South Korea, they have been collecting materials strictly from an anti-Japanese point of view.
“These anti-Japanese forces have provided the Korean side the logic and ample materials as ammunition to attack Japan. It’s no exaggeration to say they presumably have accumulated at least ten times more historical facts and research materials than our side. Their anti-Japan campaigns were meticulously and methodically implemented for many years before we came to realize it.”
But there are corporations in Japan that retain a rich reservoir of materials as regards how much was paid to which Korean laborers, which Japanese corporate advertisements they responded to before coming to work in wartime Japan, and how they were treated. After all, these facts have the strongest powers of conviction. We must release all of these materials as soon as possible.
Small though their number may be, sensible Japanese scholars and researchers, excluding their anti-Japanese counterparts, must cooperate with the government and related corporations within a short span of time to make public all the facts available about how Korean laborers were treated under Japanese rule. Such information hopefully will awaken the international community to a realization of the absurdity of the final decision the South Korean top court has made on the “conscripted workers” issue, ignoring the precedents of international law. (The End)
(Translated from “Renaissance Japan” column no. 832 in the December 12, 2018 issue of The Weekly Shincho)