Friday, September 02, 2011

Ask a Korean! News: Korean Constitutional Court on Comfort Women

This decision is somehow is being very under-reported at this moment, even in Korean media. But make no mistake about it — this can be as important as Brown v. Board of Education when it comes to Korea-Japan relations.(All translations in this post are the Korean's and not official.)

The gist of the Court’s opinion is that: (1) Korean government did not do enough to vindicate the rights of Comfort Women (and also those Koreans who were irradiated from Hiroshima and Nagasaki), and; (2) such inaction violated the constitutional rights of surviving Comfort Women and other victims of Imperial Japan. Therefore, the Court ordered the government to proceed under the dispute resolution procedure provided for in the treaty at issue. (“이 사건 협정 제3조에 의한 분쟁해결절차로 나아가는 것만이 국가기관의 기본권 기속성에 합당한 재량권 행사[.]“)

The treaty at issue here is Treaty on Economic Cooperation Regarding Property and Petition Rights (“재산 및 청구권에 관한 문제의 경제협력에 관한 협정“). This is the infamous treaty under which, arguably, Korean government (under the rule of Park Chung-Hee at the time) signed away the Comfort Women’s right to petition the Japanese government for reparation. Article 3 of the Treaty provides a dispute resolution procedure:  First, Korea and Japan should attempt to resolve the dispute through diplomatic channels. Second, if the dispute cannot be resolved through diplomatic channels, an arbitration panel with three arbiters is to be formed — one arbiter chosen by each country, and the third arbiter chosen by the two arbiters.

The Court’s opinion is not 100% clear on what exactly Korean government must do to vindicate the constitutional rights of the Comfort Women. Already, Ministry of Foreign Affairs and Trade summoned the Japanese ambassador to inform him of the decision, and asked for a more active and sincere attitude toward the resolution. It is not likely that such a step will be enough, given that Korean government has exactly the same thing for the last decade and the ball has not moved forward. But how far will the government have to go to satisfy the Court?
(This is where there can be a pretty strong parallel to Brown v. Board of Education. Remember, that decision alone did not bring about school desegregation — the U.S. Supreme Court had to decide over and over again that a particular measure of desegregation over a particular jurisdiction was not good enough.)
The craziest part is — what if the Court is not satisfied by anything other than going through with the arbitration, as provided in the Treaty? And what if there actually is an arbitration that will decide, once and for all, who will end up having all the marbles? Either way the arbitration comes out, the consequences will be earth-shattering for both countries. That could potentially serve as a leverage for both countries to work it out diplomatically, but it does not seem likely that either government would be particularly inclined to it. Lee Myoung-Bak is happy not to make any waves at this point of his tenure, and Noda Yoshihiko thinks Japanese war criminals are not really war criminals.
The Korean does not want to jump the gun, so he will save outlining the potential issues to be decided by the possible arbitration for some other time. But this can really be a game changer in Korea-Japan relationship, and it bears continued monitoring.
Got a question or a comment for the Korean? Email away at askakorean@gmail.com.

6 comments:

  1. This isn't a new point, but given the advanced age of the comfort women, what is your prediction for the arbitration process or any other Korean government initiative after the last possible plaintiff passes away?

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  2. TheKorean, the 1965 treaty involved Japan making grants and soft loans, some of which was supposed to go to the Comfort Women and forced laborers and hibakusha, etc.

    I have a question I've had trouble finding the answer to without an in-depth search and I was hoping you might know it off the top of your head or have it at your fingertips: Did the ROK government pay back all of the "soft loans" and if so, when?

    It would seem to me that if that money were returned, the overall package of $800 million in 1965 money in exchange for forty years of brutal colonialization seems even less impressive.

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  3. Assuming a deal between Japan and South Korea was possible, how would this affect former comfort women in North Korea? Is my understanding that the constitutional court also recognizes them as Korean citizens correct?

    Therefore would a complete resolution of this issue be possible without North Korean participation?

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  4. propine, I really would rather not make a prediction. It's too depressing to think about.

    Andrewssi, that's another can of worms. To give a short answer, Japan entered into a separate treaty with North Korea. But yes, what you said is technically correct and it can be an issue.

    kushibo, the terms of the loan said it was due in 10 years, so presumably it was paid off in 1975.

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  5. I've seen the relevant texts of the treaty in Japanese. It specifically says that all individual claims are henceforth resolved. Period. The Japanese payments were made over a 10-year period and ended in 1975. Park spent a lot of the money on infrastructure.

    As for what was supposed to go to whom, the treaty states that as a sovereign nation, South Korea was free to spend the money as they wished.

    As for it not being enough money, the total amount was more than twice the amount of South Korean foreign reserves at the time of the treaty, and almost twice as much as the Korean trade deficit.

    South Korean government sources reportedly said the average annual contribution to the Korean economic growth rate from the Japanese payments was 20%, and 8% annually to benefit the balance of payments account.

    As for the suggestion that a Korean court decision would have any effect whatsoever on the behavior of another country, much less on the level of Brown vs. Board of Education (a domestic issue), the best I can say is that it is fanciful.

    If the Japanese have a treaty with the North Koreans, this is the first I've heard about it. I've read there's a standing offer of 10 billion on the table.

    I suspect the reason this story was not widely reported is that even most Koreans probably know the Court's decision was pointless.

    ReplyDelete
    Replies
    1. ampontan,

      "I've seen the relevant texts of the treaty in Japanese."

      Too bad the authoritative version is the English one.

      "It specifically says that all individual claims are henceforth resolved. Period."

      Too bad that's illegal under international law.

      The English version simply says that "problems concerning property, rights, and interests" of the peoples have been "settled completely and finally", with a reference to Article IV(a) of the San Francisco Peace Treaty - which concerns property and debts. I can see an interpretation of the English version as only resolving individual claims to issues involving stolen or appropriated property or money, but not fundamental human rights violations like forced labor.

      If the English version really is interpreted to mean that individual claims of human rights violations are resolved, then the only option I see is consider the offending and illegal statement null and void and remove it from the treaty and its interpretation, or consider the entire treaty null and void and require renegotiation from scratch.

      "Park spent a lot of the money on infrastructure.

      As for what was supposed to go to whom, the treaty states that as a sovereign nation, South Korea was free to spend the money as they wished."

      I agree. Good thing that South Korea is correcting its mistakes now by identifying and paying the individuals concerned compensation such as lifetime pensions. When will Japan do this? South Korea has the moral high ground here.

      "As for it not being enough money, the total amount was more than twice the amount of South Korean foreign reserves at the time of the treaty, and almost twice as much as the Korean trade deficit.

      South Korean government sources reportedly said the average annual contribution to the Korean economic growth rate from the Japanese payments was 20%, and 8% annually to benefit the balance of payments account."

      At least some, if not all, of the money was intended to provide compensation on a government-to-government or state-to-state basis. I find it highly likely that, even if some of the money was intended by Japan at that time to go to individual claims, that it would not have been enough to pay out the (lifelong) compensation for every individual survivor.

      (Also, the moral component is being ignored here. The survivors should be able to get compensation from the violator, not some third party. For this reasons, I'd say that Korea should simply give all the money back to Japan (including the loans, assuming that they haven't already been repaid) and then ask Japan to directly compensate the survivors.)

      "As for the suggestion that a Korean court decision would have any effect whatsoever on the behavior of another country, much less on the level of Brown vs. Board of Education (a domestic issue), the best I can say is that it is fanciful.

      I suspect the reason this story was not widely reported is that even most Koreans probably know the Court's decision was pointless."

      The effect on Korea-Japan relations has already been felt. (Look where the bilateral defense treaty is headed.)

      Delete

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