The young government of Kishida Fumio, who took office as Japan’s prime minister early last month, has been handed a difficult legacy in Japan-South Korea diplomatic relations from the era of the Abe Shinzo administration. Specifically, Kishida must grapple with the rulings handed down by the Supreme Court of the Republic of Korea in October (vs. Nippon Steel Corporation) and November (vs. Mitsubishi Heavy Industries, or MHI) 2018 in regard to former civilian workers from the Korean Peninsula.
On November 29, 2018, the Supreme Court ordered MHI to pay the plaintiffs restitution in a case in which former members of the Korean Women’s Volunteer Labor Corps and their heirs claimed damages against the company. MHI refused to comply with the ruling. Therefore, the plaintiffs filed a suit to seize trademark and patent rights registered by MHI in South Korea, and the Daejeon District Court ruled in their favor. MHI objected and filed an immediate appeal for an injunction against the proceedings, but the District Court rejected the appeal. As a result, MHI appealed to the Korean Supreme Court. On September 10, 2021, the Supreme Court rejected part of MHI’s appeal. On this basis, the order by the Daejeon District Court to seize the assets became binding.
In response, then Chief Cabinet Secretary Kato Katsunobu, a member of the government of Kishida’s immediate predecessor as prime minister, Suga Yoshihide, gave a press conference on September 13, 2021, in which he stated that the ruling of the Supreme Court of Republic of Korea and the related judicial proceedings clearly violated international law. He went on to say that any attempt to liquidate the assets must be avoided as it would become a critical issue for relations between Japan and South Korea.
The following day, the Ministry of Foreign Affairs of South Korea issued a rebuttal stating that Japan’s assertion of a violation of international law is a one-sided argument that is entirely inconsistent with the facts. This was the situation on September 27 when the Daejeon District Court ordered the liquidation of the seized MHI trademark and patent rights.
The basis for the liquidation order was the ruling by the Korean Supreme Court in 2018 that there is no reference to the illegality of Japan’s colonial rule in the Agreement on the Settlement of Problem concerning Property and Claims and on Economic Cooperation between Japan and the Republic of Korea and its Agreed Minutes, and that it is difficult to regard the Agreement as covering claims directly related to the illegality of the colonial rule. According to the ruling, the rights of former civilian workers from the Korean Peninsula and former members of the volunteer corps to claim compensation against the forced mobilization were not resolved by the Agreement, and MHI had a duty to compensate for damages.
On June 22, 1965, the Treaty on Basic Relations between Japan and the Republic of Korea and the Agreement were concluded as a set to normalize bilateral relations between Japan and Korea. As the Korean Supreme Court has stated, in order for colonial rule by Japan to be illegal, there must be agreement in the Treaty on Basic Relations that former treaties such as the Japan–Korea Treaty of 1905 (the Japan–Korea Protectorate Treaty) and the Japan–Korea Treaty of 1910 (the Japan–Korea Annexation Treaty) were invalid. However, there is no such agreement. The ruling of the Korean Supreme Court is a problematic interpretation of the treaty as it is based on the unilateral assertion by South Korea at the time of the negotiations that the old treaties were invalid from the beginning, and that the colonial occupation by Japan was illegal.
The Agreed Minutes confirm that the problem concerning claims, which is settled completely and finally, includes all claims that fall within the scope of the claims against Japan (the Eight Items) made by the Republic of Korea in 1951. Therefore, no contention can be made with respect to claims in the future. The issue of Korean workers (including volunteer corps) is included in the fifth of these Eight Items. It is clear that the problem of outstanding amounts to Korean workers and reparations for war damage has already been settled in the Agreement.
Kishida was foreign minister on December 28, 2015 when the announcement by the Foreign Ministers of Japan and the Republic of Korea at the Joint Press Occasion on comfort women stated that “the Government of the ROK [will] establish a foundation for the purpose of providing support for the former comfort women, that its funds be contributed by the Government of Japan as a one-time contribution through its budget,” and that “this issue is resolved finally and irreversibly with this announcement.” Despite the 1965 Agreement, which confirmed that the problem concerning claims is settled completely and finally, the Japanese prime minister once again made concessions by expressing his most sincere apologies to the former comfort women. Still, in 2018, the Moon Jae-in administration abandoned the Japan-South Korea agreement and announced that the Korean government would contribute from its budget the equivalent of the one billion yen contribution from Japan. The agreement was a formal pact between governments, and “agreements must be respected” even if the nature of the agreement is a political one. In Japan, there is a deep-rooted distrust of South Korea, which has overturned one agreement after another.
Immediately after taking office as prime minister, Kishida telephoned the other leaders of the Quad (the United States, Australia, and India), who share Japan’s values of freedom, democracy, and the rule of law, as well as the Chinese and Russian heads of state. A telephone call between Kishida and Moon wasn’t arranged until October 15, testament to the frosty relations between Japan and Korea. At the same time, it indicates that there is a lack of trust between the two countries that cannot be understood simply as a confrontation between the Abe and Moon administrations.
It may take some time before the governments of Japan and South Korea and their citizens recognize that conflict is not in the interests of either nation. Yet at a time when the military threat from China toward Taiwan and the South China Sea is on the rise, the tense security environment in Asia will not allow either country the luxury of a long period of reconciliation.