Will There Be International Arbitration over Korean Comfort Women?

The highest court in South Korea ordered Japan to compensate four former workers of the Nippon Steel & Sumitomo Metal Corporation for labor served during World War II. During the war, Japan occupied many territories across Asia, including the entire Korean peninsula. In addition to labor used in factories around the occupied territories, issues of Korean comfort women – those who served Japanese Imperial soldiers in wartime brothels – has been a contentious issue between the two countries.

According to the Steel Company ruling, the Supreme Court ordered Nippon Steel & Sumitomo Metal Corp to pay 100 million won ($87,700) to four plaintiffs. The sole surviving plaintiff, Lee Choon-sik, welcomed the ruling in a televised news conference. The final decision of the court might have a significant impact on Japan-South Korea relations both politically and economically. Other Japanese firms have been embroiled in similar court cases in the past. The two countries share a strained history, seemingly stemming from Japan’s World War II occupation of the country. Previous cases of similar natures have been absolved under the 1965 Treaty on Bilateral Relations between Japan and South Korea.

What is the Treaty on Bilateral Relations?

The 1965 Treaty on Bilateral Relations was an agreement between the countries of Japan and South Korea. It was signed on June 22^nd, 1965 and established official diplomatic relations between Japan and South Korea. Because South Korea was not a signatory of the Treaty of San Francisco, the country was not entitled to the benefits stipulated in Article 14 (reparations by the country of Japan). However, according to the Treaty, Korea was entitled to apply for reparations under article four which states the arrangement of property and other claims.

A series of bilateral talks held between Japan and South Korea between 1951 and 1965 around the need to restore diplomatic ties between the two countries. These talks culminate din the 1965 Treaty on Bilateral Relations. A party to the agreement, Eisaku Sato described the treaty in his Nobel Peace Prize lecture, describing the “…guiding spirit of equality and mutual advantage and the realistic approach of seeking to establish friendship with close neighbors.”

The provisions of the treaty established normal diplomatic relations between the neighbors. The original documents are held in Japan and South Korea. Although there are versions in Japanese and Korean, the English-language version serves as the prevailing authoritative version.

The treaty addressed agreements between Japan and South Korea which concerned the settlements of disputes of property claims and economic cooperation. Japan gave Korean $300 million in economic aid and $200 million in loans. In addition, $300 million loans were given in loans for a private trust for a grand total of $800 million to stipulate the economic cooperation. According to the agreement, regards to property and monetary claims between Japan and South Korea have been solved finally and irreversibly.

South Korea in the Interim

Despite the 1965 Treaty on Bilateral Relations, South Kore has repeatedly called on Japan to pay additional compensations to the country and citizens used for labor during the war. A 1996 UN Resolution by the Commission on Human Rights recommended that Japan accept legal responsibility and pay compensation to individuals involved in the issue of Korean Comfort Women. Japan rebutted, stating that this issue was solved in the 1965 Treaty on Bilateral Relations. Despite this, Japan has continued to show goodwill towards South Korea. The Asian Women’s Fund was established by the Japanese government in 1994, aiming to distribute additional financial compensation to former Korean comfort women and those in other territories occupied by Japan during the war including Thailand, the Philippines and Indonesia.

While the government of Japan allotted 4.8 billion yen to the fund, an additional 600 million yen were raised by private donations. Within the parameters of this fund, each survivor was also provided with an official letter of apology by the Japanese Prime Minister.

In 2015, an additional agreement was made between the Prime Minister of Japan and the President of South Korea. Here, the Comfort Women Agreement “finally and irreversibly” brought the longstanding Korean Comfort Women issue to an end. The agreement was met with international acclaim by several nations including the United States, the United Kingdom and Germany.

Additional issues surrounding the Korean Comfort Women dispute include the erection of statues depicting former comfort women in from of Japanese embassies and consulates in South Korea. Here, South Korea was accused of violating the Vienna Convention on Diplomatic Relations, where articles stipulate a host country to protect foreign diplomatic missions against any disturbance of peace or impairment of dignity.

Shortly after the 2015 agreement was signed, South Korean President Moon Jae-in took office. He described the agreement as something that the Korean public could not “emotionally accept,” and vowed to renegotiate its terms. Japan has resisted the renegotiation, citing the various times Japan has apologized for their Imperial History and wartime transgressions.

Imperial Forced Labor in the Occupied Territories

The Empire of Japan, in addition to its use of Korean Comfort Women, forced many citizens into labor for private industries. The most recent case is that of the Nippon Steel Company, which has sued the government of Japan in order to pay compensation for four plaintiffs who served in factories during the war. Four former laborers submitted a suit in 2005 against the company to seek compensation and unpaid wages. In 2012, the South Korean Supreme Court ruled that the company should compensate the plaintiffs, but Japan appealed against the ruling.

The court ruled that the right to unpaid wages and compensation was not part of the 1965 Treaty on Bilateral Relations, which effectively rejected the claim by Tokyo. Taro Kono, the Japanese Foreign Minister, proclaimed that the ruling was unthinkable and the ruling itself overrode the legal basis for bilateral relations that the two counties have held for decades.

The Japanese Prime Minister asserted that Japan would respond firmly, and other members of his cabinet are considering a number of options if South Korea does not respond promptly. This response includes a potential international arbitration between the two countries. According to international law, these forms of arbitration hold the highest decision-making capabilities in the world.

The Future of Japan-ROK Relations: Labor, Korean Comfort Women

Undoubtedly, Japan and South Korea have a long and tumultuous, albeit shared history. Looking forward, an international arbitration on labor disputes and compensation for Korean Comfort Women is completely possible, although ill-advised. The substantial support the country of Japan has provided South Korea in reconstruction has allowed the country to rebuild in what is undoubtedly an unstable region. The repeated apologies for wartime transgressions by Japan to all of the countries they occupied during the war have been graciously received, but the ROK seems to be squeezing the issues for all they can get.

Working together is the best way to show strength and solidarity in the face of looming regional threats. In the past few years the trade war between US and China as well as the nuclear threats from North Korea should be key areas of partnership, coordination and development. Accepting apologies from wars that took place decades prior should have been completed long ago. The issue of Korean comfort women has been diplomatically and morally solved – an international arbitration would be a mistake.