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Relations between South Korea and Japan have been at a nadir since 2018, when the South Korean Supreme Court ruled in two cases that workers used as forced labor by Japan during World War II were entitled to financial compensation from Mitsubishi Heavy Industries Ltd. and Nippon Steel. But a recent decision by the Seoul Central District Court on the issue of forced labor may add more confusion than clarity to an issue that has strained relations between the two countries.
The case before the Seoul Central District Court was the largest of nearly two dozen cases on the forced labor issue moving through the South Korean court system. The case involved about 85 victims and their families suing 16 Japanese firms.
Rather than ruling in the plaintiffs’ favor, as was expected based on the 2018 Supreme Court decision, the Seoul Central District Court dismissed the case and instead decided to follow the minority decision from the 2018 Supreme Court case in arguing that the 1965 Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation with Japan limited the right to sue.
The Seoul Central District Court also argued that not dismissing the case could damage South Korea’s relations with the United States if the International Court of Justice found that South Korea violated the Claims Agreement. In dismissing the case, Justice Kim Yang-ho said, “Proceeding with the case could result in breaching international law … and trigger adverse effects globally if its final ruling is forcibly implemented.”
The decision partially affirms Japan’s long-held position that the issue of compensation for forced labor (and other colonial-era abuses) was “settled completely and finally” as part of its 1965 normalization treaty with South Korea. However, the Seoul Central District Court noted, “We cannot say that an individual’s right to claims completely expired under the agreement but it is right to interpret that a South Korean national is limited in exercising it against Japan or a Japanese national.”
In dismissing the plaintiffs’ case but noting that their right to compensation had not been completely resolved by the 1965 treaty, the Seoul Central District Court in essence argued that the legal path to compensation should be closed but that the political path should remain open.
In response to the decision, this is in essence what some commentators in South Korea have argued. The conservative JoongAng Ilbo, for example, has suggested that the decision has opened the door for negotiations and created an opportunity for the Moon government to test the theory of reconciling with Japan. On the other hand, the progressive Hankyoreh criticized the decision for contradicting the Supreme Court and including non-legal considerations such as the potential impact on the South Korea-U.S. alliance.
However, the plaintiffs in the case have signaled that they will appeal the decision so any political space created by the decision could be short-lived. It is rare for a lower court to contradict a Supreme Court decision and the Seoul Central District Court’s decision is likely to be reversed on appeal. Any window created by the decision for a political solution to the forced labor issue will be constrained by the speed with which the victim’s appeal is heard and the timing of decisions on the remaining cases.
Finding a political resolution, however, remains challenging as the issue of forced labor is not the only area of contention between South Korea and Japan.
Around the same time as the two Supreme Court decisions on forced labor, the South Korean government announced it would formally dissolve the Reconciliation and Healing Foundation set up under the 2015 agreement on “comfort women,” a euphemism for women forced to sexually service the Japanese military during World War II. That agreement was supposed to “finally and irreversibly” resolve the issue of Japan’s use of South Korean women as sex slaves during World War II. The decision to close the foundation established to compensate the victims was seen by Japan as undermining the agreement.
If the dispute over the comfort women had remained confined to the dissolution of Reconciliation and Healing Foundation it might have only been a momentary issue in the relationship, but the issue of the comfort women has also returned to the South Korean court system.
Earlier this year, the Seoul Central Court District ruled that Japan was liable for compensation to the comfort women and that sovereign immunity did not apply because of the “anti-humanity acts systematically planned and perpetrated by the accused.” Japan refused to accept the verdict and Prime Minister Suga Yoshihide said that “South Korea should take steps to correct violations of international law and that the ruling will never be accepted.”
A separate Seoul Central Court District decision a few months later contradicted that decision when it dismissed a case brought by a different group of comfort women. In the second case, the court argued that sovereign immunity did apply to Japan. Similar to the recent decision on forced labor, the judge in the case also considered the diplomatic implications of the case. Judge Min Seong-cheol said that “If an exception on state immunity is acknowledged, a diplomatic clash would be inevitable during the process of forcing the ruling’s implementation.”
The disputes over forced labor have also moved beyond the courtroom and diplomatic statements. Despite Japan’s denial of its linkage to the issue of forced labor, Tokyo’s decision to weaponize its economic relationship with South Korea further deepened distrust in the relationship and resulted in South Korea also removing Japan from its white list of trusted trade partners and a boycott of some Japanese consumer items by the South Korean public. South Korea also threatened to withdraw from its intelligence sharing agreement with Japan, but ultimately maintained the agreement under U.S. pressure.
Even if there was a will to improve relations South Korean President Moon Jae-in and Suga find themselves in weakened political positions. Moon’s single term presidency ends next May and his approval rating has fallen from its early pandemic highs of 70 percent to 36 percent. Suga faces similar political challenges, with elections this fall and a cabinet approval rating of 32.2 percent.
Ultimately, there is unlikely to be resolution to these cases until Seoul and Tokyo reach a political decision to resolve the issue and improve relations. The Seoul Central District Court’s decision on the issue of forced labor, combined with the earlier decision on the comfort women, creates confusion in the legal process, but could also provide the political space for South Korea and Japan to engage in deeper discussions on how to improve their relations. The question is whether the two governments will take the opportunity to engage in discussions that will help to bring resolution to these issues.
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