Can Japan-Korea Ties Be Mended?

Korean affairs expert Asaba Yūki explains why Tokyo and Seoul have dug in their heels on the issue of compensation for wartime/forced labor and considers the dispute’s broader implications for the embattled postwar international order.

Relations between Japan and South Korea have sunk to a historic low. Festering resentments over issues stemming from the years of Japanese colonial rule have infected trade and security relations, with Tokyo removing South Korea from its “white list” of preferred trading partners and Seoul threatening to withdraw from GSOMIA, the bilateral General Security of Military Information Agreement. The dispute has had a major impact on public attitudes as well, giving rise to boycotts of Japanese goods in South Korea and increasing “Korea fatigue” in Japan. In the following, I attempt to shed light on some of the basic structural and historical factors underlying the current standoff.

New Developments in an Old Dispute

The event that triggered the feud was the October 2018 ruling by the Supreme Court of Korea ordering Nippon Steel to compensate four Korean men who had been forced to work in its factories during World War II, when Korea was under Japanese colonial rule.

Japan has long maintained that all war reparation issues were settled with the conclusion of the 1965 Treaty on Basic Relations between Japan and the Republic of Korea, which normalized diplomatic ties, and the appended Agreement Between Japan and the Republic of Korea on the Settlement of Problems concerning Property and Claims and Economic Cooperation. Until fairly recently, the South Korean courts agreed. But in October 2018, the South Korean high court rejected that position, opening the way for the seizure of Japanese corporate assets to compensate former victims of what they call forced labor.

The Japanese government quickly denounced the decision, calling it a violation of international law, and Japan’s Ministry of Foreign Affairs demanded “that the Republic of Korea take . . . immediate actions to remedy such a breach.”

Seoul offered no response until June 2019, when it proposed the establishment of a fund to compensate victims with contributions both from the Japanese firms sued by former laborers and from the South Korean companies that benefited from Japanese aid and loans under the terms of the 1965 Japan–South Korea claims agreement. As long as companies contributed a sum equivalent to the compensation ordered by the courts, Seoul would comply with Tokyo’s call for a resolution of the dispute “through diplomatic channels” (in accordance with article 3, paragraph 1 of the aforementioned agreement).

Tokyo immediately rejected the proposal, and the seizure of Japanese corporate assets has proceeded. The sale of those assets, which Tokyo considers a red line, could take place as early as December 2019. Inasmuch as a preponderance of voters in both countries favor a hardline stance, breaking the impasse before that line has been crossed will be a major challenge. It will become even more difficult afterward.

This is not the first time Japan and South Korea have quarreled over historical issues. Until recently, however, the merits of cooperation in the economic and security spheres have outweighed resentments rooted in the past. Now, however, the dispute has infected virtually every aspect of the bilateral relationship, and neither side seems willing to give an inch. In the following, we will examine the structural factors underlying this dramatic deterioration in Japan-ROK ties.

Diplomacy and the Courts

The first factor to consider is the growing independence and activism of the South Korean judiciary. The Constitutional Court in particular has shown itself willing to step into the political fray to keep the executive branch, the legislature, and the political parties in check, as exemplified by the dissolution of the Unified Progressive Party on the grounds that it violated the nation’s “fundamental democratic order” (December 2014) and the impeachment and conviction of former President Park Geun-hye (March 2017). With the Constitutional Court’s August 2011 decision on the “comfort women” issue denouncing the President’s failure to act in foreign policy, and the Supreme Court’s recent rulings on compensation for conscripted laborers, the reach of the South Korean judiciary has spread to the diplomatic arena, impacting Japan-ROK relations.

Both the August 2011 decision on the comfort women and the October 2018 decision on wartime labor clearly articulated the South Korean view that Imperial Japan’s “36-year occupation” of Korea—from the annexation treaty of 1910 until the end of World War II—was unlawful and illegitimate.

The preamble to the South Korean Constitution states that the people are “upholding the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919.” At that time, though, there was no independent Korean nation; the peninsula was part of the Japanese Empire, and the provisional government was not recognized by any other nation. Korea’s formal recognition as an independent state would not come until the 1951 San Francisco Peace Treaty. South Korea officially declared the establishment of its own government on August 15, 1948, but was not invited to take part in the San Francisco treaty talks as a member of the victors.

The issue of Korea’s legal status under Japanese colonial rule was a major bone of contention during the protracted negotiations for the 1965 basic treaty. Faced with what was proving to be an insurmountable obstacle, the two sides ultimately fudged the issue through ambiguous wording. Without taking a clear stand on the legality of Japanese colonial rule, the treaty merely states, “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(emphasis added by the author).”

It was a smart compromise on the part of the two countries’ political leaders, but it masked a deep divide that persists to this day. Japan interprets the passage to mean that such agreements—including the 1910 Japan-Korea annexation treaty itself—were valid at least up to the time of Japan’s surrender to the Allies in August 1945. South Korea takes the position that they were null and void ab initio, meaning that Japan’s annexation and rule of Korea were never legitimate in the first place.

For more than a half century, the two countries were able to maintain cooperative and fundamentally amicable relations notwithstanding this perception gap. Now, however, the South Korean courts are testing the very limits of the bilateral relationship.

State-to-State Agreement and the “Popular Will”

The second basic factor driving the current standoff is the popular will.

Until recently, the main focus of Japan-ROK tensions was the issue of compensation for the Korean “comfort women” who were forced to provide sexual services to members of the Imperial Japanese Army before and during World War II. In December 2015, Japanese Prime Minister Abe Shinzō and South Korean President Park Geun-hye reached a landmark agreement that was billed as a “final and irreversible” resolution of the dispute. As part of the agreement, the Japanese government offered a public apology, saying, “The issue of comfort women, with an involvement of the Japanese military authorities at that time, was a grave affront to the honor and dignity of large numbers of women. . . . As Prime Minister of Japan, Prime Minister Abe expresses anew his most sincere apologies and remorse.” Japan also pledged public funding for a foundation established by the South Korean government to administer programs “for recovering the honor and dignity and healing the psychological wounds of all former comfort women” with the cooperation of both governments. Funds were transferred in a lump sum as promised.

As of the time of the agreement, there were 47 known former comfort women still alive, and 34 of them endorsed the settlement. Nonetheless, the administration of President Moon Jae-in has dissolved the foundation and effectively rejected the agreement on the grounds that it fails to meet the requirements of a “victim-centered” settlement.

One of the basic principles of civil and international law is pacta sunt servanda—agreements must be kept. Given that Seoul has effectively reneged on the comfort-women agreement, it would scarcely be rational for the Japanese government to enter into a similar agreement with regard to conscripted laborers—particularly since compensation for wartime labor is expressly listed among the South Korean demands that were incorporated into the 1965 normalization treaty and was the object of a lump-sum settlement. In 2005, when the South Korean government revisited the question of whether wartime laborers had a legal right to sue companies for compensation, it took the position that such claims had already been settled.

But these arguments do not carry much weight in South Korea today. The plight of the comfort women and forced laborers is considered a universal human-rights issue demanding “transitional justice” to redress wrongs perpetrated under the undemocratic regimes of the past. By the same token, many South Koreans, particularly those on the left, reject the 1965 treaty on the grounds that it was concluded undemocratically, in the face of widespread opposition, by the authoritarian regime of Park Chung-hee, which responded to popular protests by instituting martial law. They brand the agreement an “incorrect settling of past accounts” that swept aside issues of historical justice and individual rights in exchange for an infusion of economic aid. A correct settling of accounts, they insist, would involve the explicit recognition that Japan’s “36-year occupation” of Korea was illegal from the start.

The 1965 Framework and Postcolonialism

The third fundamental factor underlying the current standoff is inherent and growing tension between the post–World War II international order, established in part by the San Francisco Peace Treaty, and the ideals of postcolonialism.

Korea was not at war with Japan during World War II; it was—like it or not—part of the Japanese Empire. This is why Korea was not among the victor nations that negotiated and signed the Treaty of Peace with Japan, also known as the San Francisco Peace Treaty, which set the terms of a sweeping peace settlement between Japan and much of the international community.

However, the San Francisco Peace Treaty did call for “special arrangements” to settle claims by former colonies such as Korea and Taiwan against Japan (Article 4a). This is the legal context in which the 1965 Japan-ROK Basic Treaty was concluded. The 1965 basic treaty is subsidiary to the larger framework established by the San Francisco Peace Treaty. Accordingly, the 1965 bilateral treaty cannot reasonably be cited as the sole basis for judging the legality of Japan’s colonial rule of Korea.

In the early years of the twentieth century, colonial rule was still accepted practice among the major powers, and it was not expressly prohibited by positive international law. The right of self-determination, as espoused by US President Woodrow Wilson, was adopted as a guiding principle for the redrawing of national boundaries in Europe in the wake of World War I, but it would take some time before that principle was universally embraced. In the Asia-Pacific region, practices of colonial rule were alive and well in such territories as British Burma, French Indochina, and the Dutch East Indies, not to mention the US-controlled Philippines. During this same period in history, Japan controlled Korea, Taiwan, and the islands of the South Pacific Mandate.

Nor was delegitimizing colonialism a high priority among the victorious Allies when drafting a peace settlement after World War II. After all, many of them still had holdings of their own that would be threatened by a chain reaction of decolonization. Later, international norms and laws—beginning with the 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples—shifted decisively against colonialism. But the basic frameworks established by the San Francisco Peace Treaty and other international agreements in the wake of World War II remain in effect even now, and it is not clear what should be done to resolve the inconsistencies.

Limits of Reconciliation

On August 15, 1995, on the fiftieth anniversary of the end of World War II, Japanese Prime Minister Murayama Tomiichi issued a historic statement acknowledging that “during a certain period in the not too distant past, Japan, following a mistaken national policy, advanced along the road to war, only to ensnare the Japanese people in a fateful crisis, and, through its colonial rule and aggression, caused tremendous damage and suffering to the people of many countries, particularly to those of Asian nations.”

The remarks initially received glowing reviews from South Korea. However, two months later, under cross-examination in the Diet, Murayama expressed the opinion that “the conclusion and implementation of the Japan-Korea Annexation Treaty of 1910 were lawful and valid in the context of international relations at that time and other historical circumstances.” This led South Koreans to the conclusion that the Japanese—even left-wing Japanese politicians like Murayama—remained historically unenlightened, at least in regard to the legitimacy of colonial rule.

Prime Minister Kan Naoto issued a statement similar to Murayama’s in 2010, as did Prime Minister Abe in 2015. Like the Murayama statement, those of Kan and Abe treated Japan’s annexation of Korea as unjust and unfortunate, but not unlawful or illegitimate. In the mainstream Japanese view, it was part and parcel of the historical process, highlighted by glorious victories in the Sino-Japanese War (1894–95) and Russo-Japanese Wars (1904–5), whereby Meiji-era Japan freed itself from the unequal treaties imposed on it in the final years of the Tokugawa shogunate and achieved parity with the great powers of the West. The explicit violation of international norms began only with the invasion of northeastern China in 1931.

From the Korean perspective, by contrast, the problem began with the Russo-Japanese War, when Korea was shorn of its diplomatic rights. In February 1905, in the midst of the war, the Koreans claim that Japan seized the islets known to them as Dokdo (Takeshima in Japanese; Liancourt Rocks in English) and incorporated them into Shimane Prefecture. The Koreans regard Dokdo as the first victim of Japanese imperialist aggression against Korea. Those competing accounts of the past by the two nations are almost impossible to reconcile.

The Challenge of Peaceful Change

“The problem of ‘peaceful change’ is, in national politics, how to effect necessary and desirable changes without revolution and, in international politics, how to effect such changes without war.”

Thus wrote the diplomat-turned historian E. H. Carr in his 1939 work The Twenty Years’ Crisis, 1919–1939. As he noted, the need for political change is a consistently held belief, but the altering of the status quo is something to be pursued by peaceful means whenever possible.

In 1928, the major powers signed the Kellogg-Briand Pact, a pledge not to use war to resolve “disputes or conflicts of whatever nature or of whatever origin they may be.” The agreement failed to avert World War II, but the victors in that conflict tried again, establishing the United Nations “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest” (Preamble, UN Charter).

At the same time, the UN Charter, among other postwar frameworks, institutionalized the international balance of power that existed at the end of World War II. Such is the rule with legal and normative frameworks. Even today, 70-odd years after the war, the UN Charter retains “enemy state” clauses singling out the former Axis powers, and full membership on the Security Council is still limited to five former Allied powers. From the perspective of Japan, which transformed itself from an enemy state into a peace-loving nation and a dedicated guardian of the postwar regime, this aspect of the status quo naturally leaves something to be desired.

South Korea, for its part, chafes against the framework established by the 1965 Japan-ROK Basic Treaty. The treaty was concluded more than a half century ago, at a time when South Korea was at a severe economic disadvantage vis-à-vis Japan. It also found itself on the frontlines of the Cold War. In this historical context, Seoul had little choice but to put security and economic cooperation ahead of “a correct settling of past accounts.” Today, however, South Korea has achieved parity with Japan as measured by per capita gross domestic product and has even surpassed it in such areas as e-government and cashless society. As a result, the South Koreans are impatient for change.

They are not the only ones. We are living in a time of increasingly vocal and widespread dissatisfaction with the international status quo, forcing us to grapple with challenging questions: What constitutes the core norms and rules of that order? Which of those should be changed, and what is the best way to go about changing them?

Japan’s basic position is that it is necessary to work through the system. As Tokyo sees it, South Korea’s approach to the issue of compensation for wartime workers is nothing less than a bid to alter the international status quo through unilateral action. Such unilateralism threatens not only the 1965 framework on which the Japan-ROK relationship rests but also the San Francisco Peace Treaty and other foundations of the postwar international order.

These observations call into question the widely held perception that the current tension between Japan and South Korea is something isolated and idiosyncratic, reflecting the unique circumstances of this particular bilateral relationship. I would suggest, to the contrary, that the dispute is just one manifestation of a much more fundamental and global reconfiguration of powers, norms and laws.

(Originally published in Japanese. Banner photo: Korean Prime Minister Lee Nak-yeon, at left, meets with Japanese Prime Minister Abe Shinzō in Tokyo in the highest-level bilateral meeting in more than a year, on October 24, 2019. © Jiji.)