1 Korea’s Encounter with the Modern International Legal System
1.1 Introduction of Western International Law into East Asia
When international law of Western origin appeared in East Asia and it was asserted as the new international order in the region through the superior military power of Western states, it became inevitable that many matters of an international character should be rethought according to the newly introduced concepts of international law. One of the most important matters of review was the legal status of Korea. From the viewpoint of international law, Korea could be considered a vassal state whose suzerain state was China. This prima facie impression is totally understandable as Korea paid tribute to China and in many respects, Korea was not equal to China. The difference in the title of the respective rulers of each country could show that the two states were not sovereign equals. Therefore, it would have been natural for Westerners to inquire as to whether Korea was a sovereign independent state or a vassal state of China under the system of international law with which they were familiar with and which they wanted to adopt as regulating norms of the relations between East Asian states and Western states.
This was not a question of a solely theoretical nature but had practical significance. Depending on the answer to the question, Korea might or might not, for example, conclude treaties with Western states, send and receive diplomatic missions to and from the Western states and owe responsibility for the legal problems that occurred between her and Western states. Whether Korea could declare war was another question the answer to which might be varied according to the status of Korea under international law.
The following incidents are a few of the historical instances in which the international legal status of Korea became problematic. In March 1866, many Roman Catholics suffered persecution and the Korean government executed many Koreans and nine French priests. This incident was reported by the French Bishop Ridel to Admiral Roze, commander of the French fleet in China. France decided to dispatch troops to Korea and demand the conclusion of a trade treaty. One legal problem that emerged from this incident was determining which state, Korea or China, was responsible for the lives of the French priests. Faced with this problem, the Office of Foreign Affairs, Zongli Yamen, which was established as the initial organ in charge of diplomacy during the Qing dynasty, denied any Chinese responsibility. It said that Chosun was “entirely independent” in her relations with other states. France, for her part, was said to have sent an official letter to the Chinese government on July 13, 1866, in which France manifested her intent not to recognize any authority of China over Korea.
A similar problem was raised when the American warship, General Sherman, was burnt by the people of Pyeongyang and all the crew members were killed. At this time, China showed the same attitude that such matters were not under its jurisdiction, because all the domestic affairs of Chosun were put under the jurisdiction of Chosun since it enjoyed its own autonomy under the Sinocentric order. Prince Kung’s reply to the inquiry of W. Williams, the acting US Minister to China at that time, shows the Chinese attitude with regard to Korean status under the Sinocentric order and the bearer of legal responsibility when this kind of incident occurs.
Another noticeable scene where the international legal status of Korea was questioned appeared when Korea was to conclude the Treaty of Amity and Commerce with the United States. Needless to say, this treaty was a treaty between Korea and the United States. However, on behalf of Korea, all the negotiations were led by China and Korea only signed the treaty without having had any direct negotiation with the United States. In mediating the conclusion of the treaty, China pursued two mutually paradoxical objectives. One was to let Korea conclude a treaty with the United States. The capacity to do so was only recognized to a sovereign independent state. The other was to keep her as a dependency of China and to maintain Chinese political influence upon it.
When Li Hongzhang, the Chinese Viceroy of Zhili and Minister of Beiyang, had a talk with Admiral Shufeldt, the US representative for the negotiations, he proposed a draft of the treaty composed of 10 articles. The first draft article provided that Korea was a sokbang in Korean and shubang in Chinese of China. This is the so-called “dependent country clause.”
The meaning of shu is “to be of,” “belonging to,” “connected with,” “pertaining to,” “depending on,” or “subordinate to.” Bang means “a state,” “a country” or “a nation.” Therefore, “the position of a country such as Korea” as a shubang of China “can best be described as a ‘belonging or dependent country.’” Translating it into terms like “vassal kingdom” or “fief” is “misleading, for the character shu carries with it the idea of kinship, not that of a merely legal relation.” In that sense, sokbang or shebang can be best translated into “belonging or dependent country.” As a result, article 1 of the proposed draft is to be read as follows: “Korea is a ‘dependent country’ of China. However, the affairs of domestic politics and diplomacy may be constantly managed autonomously for the future.”
China strongly argued the acceptance of this article by the US, a demand refused by Shufeldt. Compromise was reached at the third conference between Li and Shufeldt. Instead of inserting an article concerning Korean dependency upon China in the text of the treaty, they decided to make Korea send the Document of Reference which confirmed the traditional tributary relation between Korea and China. Two days after the conclusion of the treaty, on May 24, 1882, the Korean king handed the document to Shufeldt and it was translated into English by him and forwarded to the US government in Washington D.C. On June 26, 1882, United States minister to China, Holcombe, also translated the document and sent it to US Secretary of State Frelinghuysen. Holcombe’s translation seemed to be more refined and was said to be accepted by China as the official translation:
Cho-sen has been from ancient times a state tributary to China. Yet hitherto full sovereignty has been exercised by the Kings of Cho-sen in all matters of internal administration and foreign relations. Cho-sen and the United States, in establishing now by mutual consent a treaty, are dealing with each other upon a basis of equality. The King of Cho-sen distinctly pledges his own sovereign powers for the complete enforcement in good faith of all the stipulations of the treaty in accordance with international law.
As regards the various duties which devolve upon Cho-sen as a tributary state to China, with these the United States has no concern whatever.
Having appointed envoys to negotiate a treaty it appears to be my duty, in addition thereto, to make this preliminary declaration.
In the translation, Chosun is described as “a state tributary to China” and “a tributary state to China.” However, at the same time, phrases such as “full sovereignty,” “dealing with each other upon a basis of equality,” and “the King of Chosen distinctly pledges his own sovereign powers” are used, which express Chosun as a sovereign state. A Chinese reading of the document would have focused on the words of “a state tributary to China” and interpreted them as expressing Chosun’s traditional dependency to China. The US would have focused on other phrases which describe Chosun as a sovereign independent state. In this sense, the Document of Reference may be said to show the difficulty in attempting to harmonize a normative fact which has different meanings in two different international systems of order.
1.2 Korea and the Chinese Tributary System
After 676 CE, Korea was politically unified under Silla, but the dominant cultural influence remained Chinese. In its efforts to court China’s favor, Silla had become increasingly sympathetic to the Chinese worldview. Although military and political differences forced the two apart, the cultural influence remained. Over the following centuries, Korea increased its cultural connection to China, a connection that culminated in Korea’s formal inclusion in China’s tributary system. The depth of their relationship allowed Korea to participate in the richness of Chinese culture and to take a privileged position under China’s protective umbrella.
Confucianism and the Confucian understanding of authority lay at the heart of China’s tributary system. For Confucius, political stability was grounded on a strong and morally upright center that provided a point of orientation for those in its political orbit. “He who exercises government by means of his virtue may be compared to the north polar star, which keeps its place and all stars turn towards it.” For China and its tributaries, China was the middle kingdom, the stable center around which others turned. Political authority was also metaphorically modeled on China’s paternalistic familial relations. “The duties are those between sovereign and minister, between father and son, between husband and wife, between elder brother and younger, and those belonging to the intercourse of friends.” Korea, as a tributary state, was viewed as son or younger brother to China.
The success of the tributary system rested on the regular missions between China and its tributary states. The missions would take place at regular intervals, up to three times a year, and also for any special events such as the emperor’s birthday, the winter solstice, the death of an emperor, or when a new Korean king was enthroned. “During the two and one-half centuries from 1637 to 1894, no less than 507 Korean missions came to Peking, while 169 Chinese missions went to Korea.” During those missions, Korea presented local goods as a tribute to the Chinese emperor, and received goods from China in return. The missions also provided an important source of information, allowing Korean access to Chinese literary, artistic, and scientific advancements.
The mutual obligations that arose out of this tributary “imposed on both parties moral rather than legal obligations.” Although trade ties were an important element to the missions, it was not their primary goal. Rather, Korea’s acknowledgment of Chinese suzerainty provided China with an important affirmation of its self-understanding as the center of the world. At the same time, Chinese acknowledgment and reception of Korean leaders provided them with important certification of their legitimate claim to the thrown.
Much like a father’s obligation to a child or an older brother’s obligation to a younger brother, China also had a moral obligation to look after the welfare of its tributary states. That obligation was tested in 1592 when Japanese forces led by Toyotomi Hideyoshi invaded Busan on the Korean peninsula with an initial force of 52,000 troops. The Korean army was unable to resist, and the Korean court retreated to safety to the Chinese border. Ming dynasty China, recognizing a threat to both its tributary and its own sovereignty, responded by sending troops into Korea in January of 1593. The Chinese forces were assisted in this campaign by a Korean naval commander, Yi Sun-sin, who successfully designed and deployed “turtle battleship,” the world’s first ironclad ships. The combined forces drove the Japanese back but could not evict them from the country. The result was a stalemate until late 1598, when Hideyoshi died and Japanese forces withdrew.
The effort to protect its tributary state and its own border took its toll on the Ming. Less than twenty years later, a rising Manchu state on the northern border sensed Chinese weakness. In 1616, China was attacked by the Manchurian state and requested Korean assistance. The Korean king, Kwanghaegun, sent troops, but ordered them to remain neutral until it was clear which side was more likely to win. Enraged upon learning of the King’s disloyalty, a coup was mounted by Korean forces loyal to the Ming and Kwanghaegun was overthrown.
In retrospect, Kwanghaegun’s hesitation might have been the strategically better choice. The Manchurians were successful in their attempt to overthrow the Ming dynasty and declared themselves the new rulers of China. As punishment for Ming loyalty, the new Qing rulers invaded Korea in 1627, looting Pyeongyang. Korea, remained a tributary state to the Qing until the end of the nineteenth century. The Koreans were never fully comfortable with their professed loyalty to a Manchurian dynasty, however. They remained in the minds of many Koreans pretenders to a culture that they did not fully understand, little brothers, themselves, that had breached propriety and usurped the thrown. “As a result the idea came about among Koreans that since China was ruled by a dynasty of questionable legitimacy, and since its rulers were not fully civilized, Korea remained the last true bastion of civilization (that is, Confucian civilization).”
1.3 The Fall of the Tributary System and the Rise of Treaty-Based Relations
The tributary system served Korea well for most of its history. It allowed the small kingdom to exist in relative peace and obscurity without great interference from its much larger neighbors. Although Korea paid tribute to China, it remained fully autonomous in relation to its internal and external affairs, choosing its own leaders and conducting its own trade. That autonomy began to collapse as Western powers weakened China’s influence over the region, substituting nominal “sovereignty” for the practical autonomy that it had once enjoyed.
Western European nations forged the concept of national sovereignty at the Peace of Westphalia, in 1648, in order to end the religiously motivated Thirty Years War. At its foundation, the peace agreement established that there was no higher political authority than the nation-state, each nation-state was regarded as the political equal of any other, and each had absolute sovereignty within its own borders.
The mirage of political equality between greater and lesser powers held for a time in Europe but could not be maintained when Western industrialized powers contacted the non-industrialized nations of East Asia. When the Asian nation states refused to recognize the Westerners as equals, equality was forced upon them. The Treaty of Nanking, signed in 1842, is indicative of the treaties that opened Japan and China to the West. Ostensibly proclaiming equality between the powers, they, in fact, were treaties “imposed by the victor upon the vanquished at gunpoint, without the careful deliberation usually accompanying international agreements in Europe and America.”
The new world order exposed Korea to forces that were well beyond its control. Compounding the problem, Korea’s internal politics were in great flux. In 1864, the 25th king of Chosun died without having named an heir. The Queen dowager unexpectedly named an 11 year old son of Prince Hŭngsǒn, who was to control the reins of power until his son came of age. In honor of his new authority, Prince Hŭngsǒn was given the title of Taewǒn’gun, or Grand Prince. Taewǒn’gun was determined not to negotiate with the foreign powers, proclaiming that “To not fight against the invading Western barbarians and instead negotiate for peace is to sell the country.”
The most immediate push for trade came from the East rather than the West, however. In 1875, two years after Taewǒn’gun stepped down from power and his son became King, the Japanese employed the same tactics against Korea that had been applied against the Japanese by Western powers. Having rapidly accepted Western technology, the Japanese were able to send a modern warship to the Korean-controlled Ganghwa Island, in order to provoke a fight and intimidate the new government. Fighting did, in fact, break out, as the warship Unyokan approached Korean defensive batteries. Japan retaliated by attacking Ganghwa Island as well as the harbor at Pusan, further demanding that Korea provide access to its ports as reparations for the injustice that Japan claimed it had suffered.
The new king, posthumously named King Kojong, was more amenable to Korea’s participation in the new world order than his father, Taewǒn’gun, had been. Certainly intimidated by the Japanese show of force, he was also compelled by the new technology and the opportunities that it presented. On February 26, 1876, Korea signed the Ganghwa Treaty, opening three ports to unrestricted trade with Japan and, perhaps more significantly, declaring that Korea was “an autonomous state enjoying the same rights as Japan.” For the first time, Korea had engaged in direct negotiations with a foreign power which resulted in a treaty based, at least in part, on the principles of Western sovereignty rather than on the more traditional relations between suzerain and tributary.
China was neither blind nor indifferent to Japan’s expanding influence on the Korean peninsula. It felt threatened by a modernized Japan on its eastern border, but it no longer had the power to contain Japan on its own. In order to work around this strategic weakness, Li Hongzhang, a Viceroy of China and architect of nineteenth century Chinese foreign policy, devised the strategy of “using the barbarian to control the barbarian.” Li Hongzhang hoped that by bringing Korea into treaty relationships with as many other foreign powers as possible, the Western nations would each have an interest in preventing any one of them from gaining exclusive control.
King Kojong was amenable to the strategy and interested in expanding Korea’s Western contacts. On May 22, 1882, representatives of the United States and Korea signed and sealed the Treaty of Peace, Amity, and Commerce between the two nations. Similar treaties followed with Britain and Germany in 1883, Italy and Russia in 1884, and France in 1886. Each of these treaties contained an attachment that indicated Korea’s ambivalent feelings to the new world order. For instance, the treaty with the United States had an attachment that stipulated that, “the king of Korea, as an independent monarch, distinctly undertakes to carry out the Articles contained in the Treaty, irrespective of any matters affecting the tributary relations subsisting between Korea and China, with which the United States has no concern.” On the one hand, the treaty establishes Korean sovereignty in relation to Western powers, but on the other hand, it maintains its place in the Confucian world order, with which the West “has no concern.”
The conflicting impulses found in the treaties’ language were found in Korean society, as well. On the one hand, elements of Korean society wanted to push for a faster embrace of Western influence and modern technology. On the other hand, other more traditional Korean groups called for the complete rejection of these newly established foreign contacts. Parties on both sides of the rift led unsuccessful coups against Kojong in the tumultuous 1880s.
In 1879, Japan agreed to help Kojong train and equip a modern fighting force, which would generally be known by its Japanese title of kunrentai. This highly trained squadron quickly enlisted more than 1,000 men. The additional funds that the new soldiers received were taken from the support that had previously been provided to Korea’s traditional army. The old guard resented their decreased support and resented the apparent pro-Japanese stance that the newly trained soldiers took. In 1882, the Korean army led a coup, adopting as their spiritual leader Taewǒn’gun, the isolationist, anti-Japanese father of Kojong that had been forced to retire in 1873.
In an expression of nationalism, the soldiers stormed the capital and burnt the Japanese legation, forcing the Japanese minister to flee Korea. The Japanese, in turn, wanted to invade Korea and abduct the Taewǒn’gun, who had become the symbol of the movement. The Chinese intervened, sending 4,500 troops to protect the Korean capital. The Chinese were also able to entice the Taewǒn’gun to their legation for protection, and eventually took him back to China. The soldiers’ coup attempt resulted in the return of an enormous Chinese military presence to the Korean peninsula.
Following the soldier’s attempted anti-Japanese coup, a group of young Korean reformers attempted a pro-Japanese coup two years later. The Kapsin coup, as it is known, was organized by a group of radical Korean officials who attempted to take advantage of a draw down in Chinese forces brought about by a French threat to Indochina. On December 4, 1884, the officials staged an intricate coup that expected Japanese military assistance which, in the end, did not materialize. The Chinese military that had remained in the capital were able to crush the resistance, and the coup leaders were exiled to Japan.
Both China and Japan recognized that Korea’s internal struggles had come dangerously close to drawing the two powers into direct conflict with each other. Neither country was prepared for that, however. On April 18, 1885, China and Japan agreed to the Convention of Tianjin. The Convention stipulated a mutual withdrawal of Japanese and Chinese forces from the Korean peninsula, along with a promise that neither side would again send in troops without first notifying the other. It was a short-lived effort to cool the overheated tensions on the peninsula.
Within ten years, another, larger movement arose which threatened the stability of the Korean government more than either of the previous coup attempts had. The Tonghak religious movement was founded in the 1860s as a reaction to the increasing pervasiveness of foreign influence. “Tonghak” meant “Eastern learning,” and the movement embraced a blend of Taoism, Buddhism, egalitarian reforms, and anti-foreign sentiment. Its founder, Ch’oe Cheu, was executed in 1864 for heresy against Neo-Confucianism. The religion grew after his execution, leading to a demand for the founder’s posthumous exoneration. By 1893, the pressure had grown so great that King Kojong agreed to the exoneration. He later had a change of heart and refused to exonerate Ch’oe Cheu, after all. The indignation felt by the Tonghak followers led to a successful rebellion in the southwestern province. In 1894, the Tonghak army defeated the government forces and occupied all of the major cities in the southwest including the provincial capital.
The Korean government requested assistance from China, once again. China agreed by sending 3,000 men to suppress the Tonghak rebellion. Before doing so, however, China notified Japan of its impending invasion, in accord with the terms of the Convention of Tianjin. Not willing to have an unchallenged Chinese military presence in Korea, Japan sent its own force of 7,000 troops. The Japanese army successfully suppressed the Tonghak rebellion, but it did not stop military operations until it had destroyed the Chinese army as well. The Sino-Japanese war was over almost as quickly as it started. In November 1895, China signed the Treaty of Shimonoseki, relinquishing all claims to Korea.
After 1895, Japan worked to secure its hold over the Korean peninsula against other foreign influence. In 1904, Japan crossed the Yalu River, Korea’s northern border, moving against Russian forces that were stationed there. Simultaneously, Japan moved against ships in the Russian fleet that were moored at Port Arthur (today’s Lüshun). In August 1905, the United States brokered a peace agreement between the two, the Portsmouth Agreement, in which Russia conceded Japanese dominion over the Korean peninsula.
Japan also worked to consolidate its control over Korean domestic policies through a series of agreements beginning in 1904, while the Russo-Japanese War was still underway. On August 22, 1904, Japan forced Korea to sign the First Japanese-Korean Agreement. That agreement required, among other things, that “The Korean Government shall first consult the Japanese Government before concluding treaties with foreign powers …” In effect, the First Japanese Korean Agreement made Korea a protectorate of Japan. That relationship was formalized with the 1905 Protectorate Treaty. Finally, the Kingdom of Korea was eliminated entirely on August 29, 1910, when Prime Minister Yi Wan-Yong signed the Treaty of Annexation, making Korea a part of Japan. With that treaty, Korea began a new phase of its existence and forever lost China as its older brother.
1.4 History and Theoretical Approach of Korea in International Law
The circumstances surrounding Korea’s acquisition of knowledge on the European-oriented international law and Korea’s acceptance of international law as a sovereign state are typically discussed altogether as part of history of introduction and adoption of international law in Korea. While those two issues are closely related, they must be separately discussed.
It was Martin’s translation and publication of Henry Wheaton’s Elements of International law under the Chinese title of Wanguogongfa (Public Law of All Nations) in 1864 that had a huge impact on the discipline of West-oriented international law in East Asia. According to the record, Hanabusa Yoshitada, a Japanese envoy to Korea, brought two copies of books on international law to Cho Young Ha, the Minister of Culture and Education of Korea on December 17, 1877. One of the copies was called “Wanguogongfa,” and the other was “Xingyaoxhiahan,” another Chinese translation of literature by K von Martens. This instance explains one of the views on Korea’s first encounter with international law.
However, there are widely divergent views on this issue. In fact, Korea sent envoys to China more than 23 times between the year of 1894 when Wanguogongfa was published and 1876 when the very first modern treaty known as “Treaty of Peace and Friendship between the Kingdom of Corea and the Empire of Japan” was concluded. Based on the number of diplomatic exchanges and relations with China and Japan at that time, it is highly probable that Korea’s envoys to China brought home a copy of Wanguogongfa along with other Western literatures on international law.
Moreover, at the time the treaty between Korea and Japan was concluded in 1876, the report by Parkers, the British Minister to Japan revealed that Korean delegations had possessed a copy of Wanguogongfa and copies of treaties concluded by China with other foreign countries. Consequently, it can be reasonably presumed that Korea became acquainted to international law around the time of publication of Wanguogongfa or at least prior to 1876 when the first modern treaty with Japan was concluded.
Upon the introduction of international law from the West under the title of Wanguogongfa, Korean intellectuals generally showed three different attitudes toward international law. The first group of intellectuals argued that Korea must actively incorporate international law as a means to preserve its independence and to prevent wars. They had a great expectation for international law as the knowledge on international law began to be disseminated.
On the other hand, the second group kept a skeptical attitude toward international law. They argued that international law represents only the interests of powerful states even though the principle of justice operates along the line of international law on its face. This reflects the view that international law is of no use in the context of realities of international politics unless states invoking international law are empowered themselves with independence and autonomy.
Lastly, the third group maintained the view that Korea must utilize legal reasoning in international law to preserve its independence. This group emphasized the significance of complying with international law as weak states could invoke international law against powerful states as a legal basis.
The way international law came to be a norm and applied in Korea is different from how international law was disseminated in the country. The fact that Korea became governed by international law, therefore being part of the community of international law, is supported by a number of indications, such as: the application of traditional international law (law of war, maritime law), state recognition, the establishment of diplomatic relations and the conclusion of treaties.
In particular, the conclusion of treaties bears significance. International law governs laws or “acts” that directly relate to conclusion of treaties, and is equivalent to the international legal act of a state subject to international law. In this respect, the conclusion of treaties is a symbolic act, which indicates when a state is to be regulated by international law.
Accordingly, Korea’s acceptance of international law as a binding norm is deemed to have begun with the conclusion of a Treaty of Peace and Friendship with Japan in 1876. Notably, while China and Japan concluded their first modern international treaty with Western countries such as Britain and the United States respectively, Korea signed its first international treaty with Japan, which concluded its first Treaty of Peace and Amity with the United States on March 31, 1854. Korea’s first modern treaty with Japan is viewed as a reflection of Japan’s influence regarding its experience of being forced to open its door to the West and sign an unequal treaty.
2 The Development of International Law in Korea
2.1 In General
The development of international law in Korea is traced back to the late 19th century when Korea was confronted with public international law introduced by Western imperial states and further influenced by Japanese colonialization from 1910 to 1945 and US military administration in the southern half of Korea from 1945 to 1948. The Republic of Korea was formally established in 1948 with the adoption of its first Constitution. The history and legacy of Korea play an important role in shaping the contours of Korea’s legal system as well as Korea’s international relations.
The legal system of Korea particularly underwent drastic changes during Japanese colonial rule as the Japanese government tried to apply their civil law system, based on the continental European legal system, to Korea. Such legal changes imposed under colonial rule created challenges because Korea was faced with a conflict between its deep-rooted Confucian traditions and the newly incorporated European-oriented legal principles.
After Korea gained its independence in 1948, the issue of reconciling Confucianism and colonialism in Korean law was additionally intertwined with the novel principles of constitutionalism that came about due to the growing influence of the Anglo-American legal system in Korea.
Korea’s approach to international law is explained through the interpretation of its Constitution which stipulates in relevant part that “treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea.” In accordance with this provision, international law has been generally accepted as Korean domestic law and incorporated into Korea’s domestic legal system.
While the Constitution explicitly sets forth that treaties duly concluded are accorded with the same status as the domestic law of Korea, there is no specific mention of customary international law. The term ‘generally recognized rules of international law’ is largely interpreted to mean customary international law. Regarding the status of international law in Korea’s domestic legal system, the prevailing view is that both treaties and customary international law stand equal with domestic legislations. While the treaties ratified with the consent of the National Assembly are deemed to have a status equal to statutes passed by the National Assembly, those simplified treaties without legislative consent are deemed to enjoy the same status as decrees issued by the President and various ministries or enforcement decrees under the statutes.
The tumultuous experiences of the Korean nation in the twentieth century within the context of international relations in Northeast Asia has had a significant impact on Korea’s attitude towards and practice of public international law. Korea has many issues to be settled under international law. Such issues include, but not limited to, territorial disputes with neighboring countries, issues of transitional justice, and issues regarding delimitation of maritime boundaries and fisheries. As to adjudication as a means of dispute settlement, Korea has not recognized the compulsory jurisdiction of the International Court of Justice (ICJ).
However, Korea has accepted the compulsory jurisdiction of the ICJ for disputes arising out of the interpretation or application of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, as well as the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes. Korea, as a party to the UN Convention on the Law of the Sea (UNCLOS), submitted a declaration under UNCLOS Article 298 in 2006. Korea generally remains inactive in employing international adjudication as a means of dispute settlement. Moreover, Korea has not employed non-judicial means of dispute settlement such as inquiry, mediation or conciliation. The only bilateral agreement concluded for the very purpose of dispute settlement is the Exchange of Notes concerning the Settlement of Disputes concluded between Korea and Japan in 1965. One of the possible explanations for Korea’s rather confined choice for dispute settlement is that most issues at stake are delicately related to territorial matters, which can never be easily left for a third-party decision.
As a full-fledged member of international community, Korea has been actively involved in a number of activities at international organizations and conferences. Korea particularly devoted to a multilateral diplomacy at the UN and gradually pursued bilateral diplomacy even in the multilateral forums such as the G20 Summit. Moreover, Korea utilized its UN diplomacy to extend the scope of its global participation in major global agendas including, but not limited to, human rights, environment, terrorism, and poverty. The hosting of major international forums such as the G-20 Seoul Summit, the 2012 Nuclear Security Summit, and the 4th High-Level Forum on Aid and Effectiveness in 2011 showed Korea’s national capacity to serve not only as a global agenda setter, but more importantly as a bridge builder between developed and development countries. Korea’s engagement with the international community extended to humanitarian and disaster-relief efforts through its participation in the UN peacekeeping missions.
2.2 From Japanese Colonialism and a War-Torn Country to Become an Asian Power
Korea’s experience in international relation is rather unique in the sense that Korea emerged not only from Japanese colonialism, but also from a war-torn country to become an Asian power. Some significant international legal issues including those which resulted from the Japanese occupation of Korea as well as from the Korean War.
2.2.1 The Legacy of Colonialism
This historical fact that Japan ruled and controlled Korea from 1910 to 1945 caused many international law issues, some of which have still not been settled, between Korea and Japan. The most critical and fundamental question, among others, is whether the Japanese ruling over Korea was based on the grounds of international law.
In particular, the validity of the two treaties – the treaty of 1905 which deprived Korea of its diplomatic sovereignty and the annexation treaty of 1910 – have been the subject of much controversy. Upon Korea’s signing the Treaty on Basic Relations with Japan in 1965 to normalize diplomatic relations, the two countries tried to solve unsettled legal issues by concluding additional treaties such as the Agreement on the Settlement of Problem concerning Property and Claims, Agreement concerning Cultural Assets and Cultural Cooperation, and Agreement concerning the Legal Status and Treatment of the Korean Residents in Japan.
Without any success, the issue on legality or legitimacy of Japan’s ruling over Korea under international law was never solved and rather ended up with vague provisions in the treaty, which, in turn, raises a matter of interpretation until the present time. Another key issue arising out of the Japanese colonization of Korea is related to Dokdo, a group of small islets in the East Sea because the issue surrounding Dokdo is often raised in the context of Japanese imperialism and expansionism into Korea.
2.2.2 International Legal Issues Arising from the Korean War and Inter-Korean Relations
Armed conflicts occurred on the Korean Peninsula in the early 1950s has raised a number of important legal issues under international law. The Korean War poses many legal issues especially related to international humanitarian law such as the legal characteristic of the armed conflict, the applicability of the rules of engagement and legal meaning of a longstanding ceasefire. As North Korea launched an armed attack against South Korea on June 25, 1950, a series of the resolutions were adopted by the UN Security Council (UNSC Res. 82, UNSC Res. 83, UNSC Res. 84, UNSC Res. 85) and it was the first time the UN Security Council had authorized the use of force since its inception in 1945 and members of the United Nations acted collectively to repel aggression.
As a veto by then Soviet Union was frequently used to block numerous Security Council initiatives during the Korean War, the UN General Assembly adopted a resolution known as “Uniting for Peace” (UNGA Res 5/377), which stated that if the Security Council fails to exercise its primary responsibility to act as required to maintain international peace and security due to lack of unanimity of the permanent members, the General Assembly should take over to keep the impetus for peace.
While a Military Demarcation Line was drawn on land at the time the Inter-Korean Armistice Agreement was signed on May 27, 1953, such Demarcation Line did not extend into maritime areas. The seaward extension, known as the Northern Limit Line (NLL) which was drawn by UN Commander General Mark Clarke in 1958, has remained contentious and caused confrontations between the two Koreas as the NLL was not officially part of the Armistice Agreement.
Some key Inter-Korean issues, among others, include statehood and recognition as well as legal characteristics of the agreements signed by the two Koreas. An issue arises from the provision of the Constitution of the Republic of Korea which stipulates that the territory of the Republic of Korea shall consist of the whole Korean Peninsula while the two Koreas were respectively admitted to the United Nations at the same time.
The UN membership issue raised a legal question as to whether the Republic of Korea recognized North Korea as a state. The issue gets more complicated as a question also arises as to the legal characteristic of the Agreement on Reconciliation, Nonaggression, and Exchanges and Cooperation between the South and the North (known as the Inter-Korean Basic Agreement) signed in 1991, which recognizes that relationship between the two Koreas is not a relationship as between states, but rather as a special one constituted temporarily in the process of unification.
2.2.3 Law of the Sea
Situated at the center of the Northeast Asian Seas, the waters that surround three sides of Korea are important for economic, military and strategic concerns. Such concerns embrace a wide range of maritime issues including maritime delimitations and competition for marine resources. Korea has engaged in important legal matters pertaining to the Law of the Sea that are of vital importance especially in relation to maritime delimitation in the zones established by the UN Convention on the Law of the Sea. There remains the issue of maritime delimitation due to overlapping claims over the continental shelf with the neighboring countries such as between Korea and China in the West Sea and between Korea and Japan in the East Sea.
The contribution on the part of Korea in relation to maritime issues includes its active engagement in international efforts to protect marine safety and marine environment. Since Korea joined the Convention on the International Maritime Organization, Korea, as a member of the A category Council with the largest interest in providing international shipping services, has been leading the development of maritime technology such as e-navigation, eco-friendly vessels and autonomous vessels technology.
2.2.4 Democracy and International Human Rights Law
The development of human rights in Korea is closely related to the development of democracy in Korea achieved through the mass protest against dictatorship and military regime from the 1960s to the 1980s. With the development of democracy in Korea since early 1990s, Korea began to accept major international human rights treaties, ratifying the International Covenant on Civil and Political Rights (ICCPR) and its Protocol in 1990, and the International Covenant on Economic, Social and Cultural Rights in 1990.
Since then, Korea became the party to major international human rights treaties such as the Convention on the Rights of the Child (1991), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1995), the Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in Armed Conflict (2004), and the Convention on the Rights of Persons with Disabilities (2009). In 2001, the National Human Rights Commission was established as a national human rights advocacy institution along with several truth and reconciliation commissions to investigate human rights violations under previous authoritarian regimes.
One of the recent human rights issues include the right to conscientious objection to military service. Conscientious objection has been a topic of much debate in Korea for decades, especially in cases involving Jehovah’s Witnesses. The Supreme Court and the Constitutional Court have consistently affirmed the punishment of conscientious objectors under Korea’s Military Service Act. However, in 2018, the Constitutional Court held that the Korean law that did not recognize conscientious objection was not consistent with the Constitution. In the same year, the Supreme Court ruled that conscientious objection was justifiable under Military Service Act.
2.3 Korea’s Contribution to the Development of International Law
Before 1948, Korea did not have a chance to contribute to the development of international law. At the time, the European-oriented international law began to regulate the inter-state relationship of East Asian nations which accepted international law. Western international law scholars questioned whether Korea was a member of the international community as a sovereign state, and other scholars did not recognize other East Asian countries aside from Japan as subjects of international law, such as Korea, China, and Siam.
Korea could not contribute to the development of international law under such circumstances, especially when the nation went under the colonial rule of Japan as soon as it opened its door to the West, resulting to the Japanese annexation. Upon gaining independence from Japan on August 15, 1945, Korea was finally placed in a position where it could contribute to the development of international law.
However, due to how armed conflicts between the two Koreas destroyed most of the economic systems in the country, Korea experienced hardship which prevented it from participating in any meaningful activity to contribute towards the development of international law.
Under this difficulty, however, a noticeable Korean state practice in terms of developing international law emerged, namely, the “Declaration by the President on Sovereignty of Adjacent Ocean” (the so-called “Peace Line Declaration”). The declaration states that Korea has sovereignty over all the natural resources, minerals, as well as marine products within a certain distance of water, including ocean floors, and the continental shelf near the Korean peninsula.
The declaration also allocated maritime sovereignty to Korea far beyond the internationally recognized territorial limits. According to the order of international law at the time, unilateral declarations and measures by Korea could be understood as violation of international law by infringing right of fisheries in international waters.
Korea’s such measures, however, can be viewed as pioneering, taking the lead to the changes of the maritime law, influenced by the United States president’s Continental Shelf Declaration and High Sea Fishery Declaration and Latin American countries’ contention on the expansion of the oceanic jurisdiction.
In the United Nations Law of the Sea Conference in Geneva in 1958, Korea, based on the purpose of the said Declaration, took a position emphasizing the special interests on fisheries of coastal states adjacent in international waters and stood against those countries that proposed freedom of fishing on the High Seas.
The Peace Line Declaration expanded the notion of Exclusive Fisheries Zone to Asian region and subsequently contributed to establishment of Exclusive Economic Zone. However, Korea’s contention of sovereignty over the continental shelf was not accepted by international community.
Armed conflicts in Korea in the early 1950s also affected the development of international law. For example, the United Nations, with the absence of the Soviet Union, have jointly identified North Korea as an aggressor and implemented a resolution under the UN Security Council to provide assistance to South Korea. Due to the absence of the Soviet Union, the legal effect of the resolution was questioned based on the interpretation of Article 27 of the UN Charter. Since then, the UN has held that an absence or abstention of a permanent member of the UN Security Council does not have an effect on the approval of the resolution by the UN Security Council.
The UN General Assembly adopted a resolution (377(V) of 1950) of “Uniting for Peace” in order to avoid a Soviet Union’s veto against a resolution as a response to the armed conflicts in the Korean peninsula. Through this resolution, the special session of the General Assembly, called ‘Special Emergency Session,’ was formed and the Interim Committee established in 1947 became meaningless.
After the armistice agreement was concluded, the repatriation of prisoners of war became an issue, and the concerned parties handled this matter in a way that respects the individual wishes of each prisoner of war. Such practice led to the insertion of Article 118 of the Geneva Convention relative to the Treatment of Prisoners of War which prescribes that “prisoners of war shall be released and repatriated without delay after the cessation of active hostilities,” which does not include the forced repatriation of prisoners of war who do not wish to be sent back to their country.
The Korea-Japan Agreement of Joint Southern Continental Shelf Development of 1974 was influenced by the 1969 decision of the International Court of Justice on North Sea Continental Shelf Cases that perceived the continental shelf as an extension of the dry land which enabled Korea and Japan to jointly explore and develop natural resources in surrounding waters where the claims of sovereignty between Korean and Japan have been overlapped.
This Agreement has been viewed as one of the most important attempts of a joint development by putting an end to an issue of sovereignty over disputed waters. The initiative was also a key example that contributed to the development of international law by creating an international model on a joint development in the continental shelf as the first example which derived a consensus on the joint development based on the recommendation of the International Court of Justice (ICJ) decision in 1969.
Furthermore, this Agreement is also viewed as putting great significance on the development of maritime law by setting a precedent of an implementation of the obligation to negotiate under general international law and a precedent of implementation of negotiation duties under Article 83(3) under the United Nations Convention on the Law of the Sea (UNCLOS). Other than this, the Agreement was a model of taking a tentative measure under the same Article, and being a model for a duty of cooperation under Article 123 of the UNCLOS.
As a full-fledged member of international community, Korea gives more statements and activities in meetings and forums related to international law, Korea’s contribution to the development of international law became a common practice.
To give a couple of examples, during the meeting in Rome for establishment of the ICC, there were conflicting views as to the system of acceptance of ICC jurisdiction: one view was to adopt a method based on state’s consent and the other view was to recognize automatic jurisdiction as to the crimes that fall under the universal jurisdiction. Amid this controversy, Korea suggested a proposal that one or more of the countries from country of origin of crimes, country of detention, country of defendant’s nationality, and country of plaintiff’s nationality that is a state party to Regulation of ICC or accepts the ICC jurisdiction, the jurisdiction of the case be recognized. This proposal was not accepted in the ICC Statute, but was supported by many countries with an appraisal of an excellent compromise and evaluated as contributing to a final agreement to jurisdiction.
Another example is that, during the negotiation process of amending 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), Korea contributed to making an amended SUA Convention in line with the existing order under the international law of the sea. In particular, Korea has been appraised to draw a compromise of inserting to the final protocol understanding that the definition of “related material” contained in the UN Security Council resolution of 2004 can be used in relation to the meaning of dual-use material.
Other than these, it has been also pointed out that Korea has contributed, through civil organizations and the victims themselves to save victims of military sex slaves, to raising public awareness in international community that sexual violence during the war is an intolerable crime as massacre of prisoners of war or torture.
2.4 The Status of International Law in the Domestic Legal System of Korea
Article 6, paragraph 1 of the Korean Constitution stipulates that “treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea.” In accordance with this, international law has been generally accepted as domestic law and incorporated into the Korean legal system. This provision stipulates that treaties have the same effect as the domestic law of Korea. There is no specific reference to customary international law, but “generally recognized rules of international law” is generally understood to mean customary international law. Therefore, customary international law has also been incorporated into the domestic legal system under the provision of the Korean Constitution. In this sense, Korea is a monist state insofar as the incorporation of international law into domestic law is not required for international law to apply. Both treaties and customary international law, however, need to be self-executing or directly applicable in order for it to be applied in litigation.
The constitutional provision stipulates that treaties and customary international law have the same effect as the domestic laws of Korea, but it does not explicitly identify the level of effect international law has within the domestic legal system. Due to this constitutional vagueness, the level of effect of international law within the domestic legal system has been left to theoretical interpretation. Article 5 of the Addenda of the Constitution stipulates that “… treaties in force at the time this Constitution enters into force, shall remain valid unless they are contrary to this Constitution.” Thus, theories suggesting that a treaty is above or on the same level of the Constitution are very rare. The majority opinion is that both treaty and customary international law generally have the same effect as statutes as indicated by judicial decisions. Accordingly, treaties or customary international law that are contrary to the Constitution are invalid within the domestic legal system. In the event treaties or customary international law are in conflict with statutes, their validity is decided based on the principles of lex posterior derogat legi priori and lex specialis derogat legi generali.
Article 60, paragraph 1 of the Korean Constitution stipulates that consent to ratification by the National Assembly is required for “treaties pertaining to mutual assistance or mutual security; treaties concerning important international organizations; treaties of friendship, trade and navigation; treaties pertaining to any restriction in sovereignty; peace treaties; treaties which will burden the State or people with an important financial obligation; or treaties related to legislative matters.” Based on this provision, some theories, which are supported by judicial decisions, suggest that treaties concluded with the consent to the ratification by the National Assembly have the same effect as statutes. However, treaties that are merely concluded by the executive branch only have the same effect as decrees which are lower than statutes.
2.5 Treaty Making in Korea
Under Article 73 of the Korean Constitution, treaty making is within the authority of the President. All working-level work for treaty making is carried out by the International Legal Affairs Bureau of the Ministry of Foreign Affairs and a procedure of consultations with various domestic institutions should be followed before the President is able to conclude and ratify treaties. From a procedural standpoint, there are three types of treaties that can be concluded in Korea: treaties requiring the consent to the ratification of the treaty by the National Assembly, treaties not requiring the consent to the ratification by the National Assembly, and the so-called “treaties by notification” made with a simple procedure through the Minister of Foreign Affairs.
The first step in the domestic procedure for treaty making is an examination made by the International Legal Affairs Bureau of the Ministry of Foreign Affairs. The International Legal Affairs Bureau reviews the wording of the treaty texts, classifies the type of treaty, determines whether there are legal conflicts with other treaties or domestic laws, and whether a treaty would require the consent to the ratification by the National Assembly. With this step completed, the proposed treaty is then sent to the Ministry of Government Legislation for review. It is required under the Law of Government Organizations that the Ministry of Government Legislation reviews all proposed legislation before being sent to the State Council for deliberation. Treaties are treated as such. A review is made by the Ministry of Government Legislation to find out whether the proposed treaty is in conflict with existing domestic law. In addition, the Ministry of Government Legislation examines whether the proposed treaty requires the consent to ratification by the National Assembly as stipulated in Article 60, Paragraph 1 of the Constitution, and provides opinions on it.
When the review of the proposed treaty by the Ministry of Government Legislation is completed, the treaty is then submitted to the State Council. Article 89, paragraph 3 of the Constitution stipulates that the proposed treaty shall be referred to the State Council for deliberation. Before being sent to the State Council, the proposed treaty is reviewed by the Council of Vice-Ministers where practical discussions regarding the treaty text take place.
When the proposed treaty is reviewed and approved by the State Council, it is then sent for approval by the Prime Minister and finally by the President. With the completion of this procedure, the person appointed by the President with full powers signs the treaty that contains the treaty text that has already been approved. However, there are exceptional cases when the treaties are signed first and, then sent to the State Council for deliberation.
If a signed treaty requires ratification by the President, it must go through the ratification procedure again. However practically, a treaty concluded through the resolution by the State Council, approval of the Prime Minister and the President, they are ratified without the additional ratification procedure involving the President.
Article 60, paragraph 1 of the Constitution stipulates that the National Assembly shall have the right to consent to the conclusion and ratification of treaties. In other words, the consent by the National Assembly is certainly required for “treaties pertaining to mutual assistance or mutual security; treaties concerning important international organizations; treaties of friendship, trade and navigation; treaties pertaining to any restriction in sovereignty; peace treaties; treaties which will burden the State or people with an important financial obligation; or treaties related to legislative matters.” The Administration submits to the National Assembly a motion for the consent to the ratification as a general item, not as a legislative bill. The National Assembly decides only on whether it consents to the ratification of the treaty which is ultimately decided in the Assembly plenary session after going through an internal procedure of the National Assembly. The resolution is passed if more than half of all votes cast by more than one half of voters eligible vote in favor. Regardless of whether treaties are formal or informal or whether the consent to the ratification by the National Assembly is required or not, all treaties that become binding within Korea are promulgated domestically by being noticed in the Official Gazette.
In Korea, there are treaties that are signed and concluded with the full power of the Minister of the Foreign Affairs, without needing to go through the whole procedure of deliberation by the State Council; President’s approval; or consent to the ratification by the National Assembly. These are referred to as goshiryu joyak, which can be put into “treaties by notification.” These treaties refer to supplementary agreements concluded within the scope authorized by the treaty provisions in order for the implementation or execution of the original treaty, or a minor modification by an organizational resolution of a multilateral treaty provision adopted by an international organization.
The treaties that fall into this category are concluded by the Minister of Foreign Affairs in consultation with related ministries. Generally, treaties that are noticed in the Official Gazette (Gwanbo) as “treaty” and promulgated whereas treaties by notification are posted in Gwanbo as Goshi (notification) by the Ministry of Foreign Affairs. Pursuant to the Vienna Convention on the Law of Treaties Article 2(1)(a), there is no doubt that treaties by notification are considered treaties that are legally binding in Korea.
2.6 Korea’s Attitude towards Peaceful Settlement of International Disputes
The obligation to settle international disputes by peaceful means, as stipulated in Article 2(3) of the UN Charter is deemed to be an established norm of customary international law. Korea has neither been in breach of this obligation nor actively engaged in dispute settlement mechanisms available under Article 33 of the UN Charter.
While said Article 33 enumerates the primary avenues for the peaceful settlement of international disputes such as negotiation, enquiry mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangement or other peaceful means of member states’ own choice as a means of resolving international disputes, Korea has seldom triggered any other means except for negotiation and the WTO dispute settlement mechanism when attempting to settle international disputes.
Korea has not employed non-judicial means of dispute settlement such as inquiry, mediation or conciliation. The only bilateral agreement concluded for the very purpose of dispute settlement is the Exchange of Notes concerning the Settlement of Disputes concluded between Korea and Japan in 1965.
This Exchange of Notes provides that any dispute between the parties unless otherwise agreed, will be resolved primarily through diplomatic channels; if a dispute cannot be settled by diplomatic means, it should then be referred to conciliation by a procedure agreed upon by the parties. As of recently, Korea has yet to invoke this conciliation procedure to reach settlement.
With regards to arbitration, Korea has never joined an arbitral proceeding. Article 3 of the Agreement on the Settlement of Problem concerning Property and Claims and the Economic Cooperation concluded between Korea and Japan in 1965 refers to diplomatic channels as the principal means of attempting to settle a dispute arising out of the interpretation or implementation of the Agreement; however, any dispute which cannot be settled through such diplomatic means must be referred to arbitration.
A decision concerning this agreement was rendered by the Korean Constitutional Court on August 30, 2011, regarding the issue of comfort women when the Court recognized, inter alia, the positive obligation requiring the Korean government to ensue dispute settlement procedures as provided in Article 3 of the said Agreement.
As to adjudication as a means of dispute settlement, Korea has not recognized the compulsory jurisdiction of the International Court of Justice (ICJ) under Article 36, paragraph 2 of the Statute of the Court. However, Korea has accepted the compulsory jurisdiction of the ICJ for disputes arising out of the interpretation or application of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, as well as the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.
Korea, as a party to the UN Convention on the Law of the Sea (UNCLOS), has not submitted any written declaration to select a means of dispute settlement as specified in Article 287 of the UNCLOS. On April 18, 2006, Korea submitted a declaration in accordance with paragraph 1 of Article 298 of the UNCLOS, where Korea expressed that it would not accept the compulsory dispute settlement involving maritime delimitation, military activities, law enforcement activities on marine scientific research or fishery, and/or disputes in respect of which the UN Security Council is exercising its functions mandated by the UN Charter.
In sum, Korea has recently employed diplomatic means for the settlement of international disputes, though it has been an active participant of the WTO dispute system. One of the possible explanations for Korea’s rather confined choice for dispute settlement is that most issues at stake are delicately related to territorial matters, which can never be easily left for a third-party decision. Moreover, Korea’s legal culture and tradition, as with other East Asian countries, prefers non-binding procedures as opposed to adversarial means of settlement.
2.7 Judicial Decisions on International Law
2.7.1 Direct Application of Treaties
Constitutional Court [97 Heon-ba 65] Decision issued November 26, 1998.
[Facts: Pursuant to the signing of the WTO Agreement, Korea’s tariff rates changed, thereby increasing the criminal sentence of the Accused. The Defense asserted that the penalty increase based on a treaty and not a domestic legislation violated the principle of legality [nullum crimen, nulla poena sine lege] of the Constitution. The Constitutional Court held that even if a criminal sentence was to be increased by a treaty, this still had the same effect as an increase caused by domestic legislation. It was an example of recognition of direct application of treaties.]
The Claimant alleges that in order to increase the punishment of tariff violation, there must be an amendment of the tariff laws or the Act on Aggravated Punishment of Specific Crimes. Thus, he argues that increasing the punishment for tariff violation solely based on a treaty is a grave violation of fundamental rights and also runs counter to the principle of legality.
The Constitution states, in the latter sentence of article 12(1), “No person may be punished, placed under preventive restrictions, or subject to involuntary labor except as provided by law and through lawful procedures,” thereby regulating criminal punishment through law and due process; while article 13(1) provides, “No citizen may be prosecuted for an act which does not constitute a crime under the law in force at the time it was committed,” thereby prohibiting criminal punishment of an act not constituting a crime at the time of commission. Article 6(1) states, “Treaties duly concluded and promulgated under the Constitution and the generally recognized rule of international law have the same effect as the domestic laws of the Republic of Korea,” providing that treaties duly concluded and promulgated have the same effect as domestic laws. The Marrakesh Agreement was duly concluded and promulgated thereby having the same effect as domestic laws; thus, even if crimes were to be created or punishments increased by this Agreement, it would be as if done so by domestic laws. In other words, even if the punishment for tariff violation were to be increased by the Marrakesh Agreement, it cannot be said that it was an unlawful criminal punishment or a punishment for an act that did not constitute a crime at the time of commission. Therefore, we cannot conclude that the old Act on Aggravated Punishment of Specific Crimes article 6(2)(1) or the Act on the Marketing and Price Stabilization of Agricultural and Fishery Products article 10(3) either violates the principle of legality or the fundamental human rights and personal liberty of the Claimant.
2.7.2 Self-Executing Treaties
Supreme Court [96 Da 55877] Judgment issued March 26, 1999.
[Facts: The Plaintiff, while heading the Kumho Company Trade Union, was pronounced guilty for violating the article 13(2) of the Labor Dispute Adjustment Act prohibiting third-party intervention. After the conviction was affirmed by the Supreme Court (92 Do 70 Judgment), he became the first Korean to report this case to the Human Rights Committee (HRC) established under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) on July 7, 1992. On August 5, 1995, the HRC found that the punishment of Jong-Kyu Sohn violated the right to freedom of expression as provided in the Covenant; and the HRC, while stating that Jong-Kyu Sohn was entitled to an effective remedy, including appropriate compensation, further invited the Korean government to review article 13(2) of the Labor Dispute Adjustment Act (CCPR/C/54/D/518/1992). When the government did not carry out the decision of the HRC, Jong-Kyu Sohn brought a suit against the government for damages, pointing to article 2(3) of the ICCPR.]
Article 2(3) of the above international covenant provides for the obligation of states under international law to secure legal systems that would ensure effective remedy for persons whose rights or freedoms as recognized in the covenant are violated. Remedies such as compensation suits against the state can be claimed based on domestic law, e.g., State Compensation Act; therefore, the above provision does not individually create a special right for a person to claim remedies, e.g., compensation against a member state of the convention.
2.7.3 Effect of Treaties as Domestic Law
i. Constitutional Court [99 Heon-ma 139, 143, 156, 160 Consolidated] Decision issued March 21, 2001. (Affirming the unconstitutionality of the ratification of the Fisheries Agreement between Korea and Japan, etc.)
Article 6(1) of the Constitution states, “Treaties duly concluded and promulgated under the Constitution and the generally recognized rule of international law have the same effect as the domestic laws of the Republic of Korea.” The Agreement at bar is a treaty “duly concluded and promulgated under the Constitution” regarding the fisheries between our country and Japan and therefore has the same effect as domestic “laws.” Thus, as observed above, a Constitutional Appeal can be made regarding a law in the exceptional circumstance of when a fundamental right is infringed by an ordinance that is not separately executed.
ii. Constitutional Court [2002 Heon-ma 611] Decision issued April 24, 2003. (Affirming the unconstitutionality of Medical Treatment Law article 5, etc.)
The Claimants allege that the provision regarding preliminary examination breaches the “Regional Convention on the Recognition of Studies, Diplomas and Degrees in Higher Education in Asia and the Pacific,” thereby failing to recognize the education obtained abroad and thus additionally limiting the achievement of domestic licenses. Our country is a signatory of this Convention (Treaty no. 990, entered into effect Sept. 29, 1989); and though it has a legal effect, its status is not constitutional and therefore cannot be a criterion for the evaluation of the validity of the preliminary examination provision.
iii. Constitutional Court [2000 Heon-ba 20] Decision issued September 27, 2001. (Constitutional Appeal regarding the Articles of Agreement of the International Monetary Fund article 9(3))
Article 68(2) of the Constitutional Court Law provides that the object of trial shall be “law,” which should be read as including “treaties.” This court has earlier made a judgment on the text of a treaty on the grounds that a treaty having the same effect as domestic law can be subject to evaluation of its constitutional validity (Constitutional Court, 97 Heon-ga 14, Apr. 29, 1999, Casebook 11–1, p. 273). The article in this case was concluded and ratified by the National Assembly and therefore has the effect of domestic law pursuant to Article 6(1) of the Constitution, which would be equivalent to the effect of legislation. Because this particular article regards the immunity from jurisdiction, its nature of direct application would make it subject to evaluation of constitutional validity.
2.7.4 Precedence in the Application of Treaties as Lex Specialis
Supreme Court [82 Da-ka 1372] Judgment issued July 22, 1986.
As there has yet to be any domestic legislation concerning carriage by air, the legal relationship would be that it would be subject to the application of civil law, or lex generalis. Regarding international air transport, however, the government has declared the “Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929” (hereinafter “Hague Protocol”) as Treaty no. 259, after having passed the resolution in the Cabinet Council and subsequently ratified by the National Assembly on October 11, 1967. Article 23(2) of the Hague Protocol provides, “Adherence to this Protocol by any State which is not a Party to the Convention shall have the effect of adherence to the Convention as amended by this Protocol[,]” while Article 19 states, “As between the Parties to this Protocol, the Convention and the Protocol shall be read and interpreted together as one single instrument and shall be known as the Warsaw Convention as amended at The Hague, 1955.” Thus Korea’s signing of the Hague Protocol gave it an effect equivalent to signing the “Convention for the Unification of Certain Rules Relating to International Carriage by Air” (hereinafter “Warsaw Convention”) concluded on October 12, 1929 in Warsaw; and the Warsaw Convention, as amended by the Hague Protocol, now has the same effect as that of domestic laws of Korea. Therefore, regarding the laws of international carriage by air, the Warsaw Convention amended in the Hague in 1955 (Amended Warsaw Convention) shall have precedence in its application as lex specialis in the general body of civil law.
2.7.5 Harmonious Interpretation of Domestic and International Law
Constitutional Court [2004 Heon-ba 47] Decision issued April 24, 2008. Opinion of Judge Song, Doo-hwan Regarding Unconstitutionality
Further, Article 6(1) of the Constitution states, “Treaties duly concluded and promulgated under the Constitution and the generally recognized rule of international law have the same effect as the domestic laws of the Republic of Korea[,]” which makes clear the accommodation and respect for international law. Currently, our country is a party to most international human rights covenants, having been ratified by the National Assembly, and is a member of the International Labour Organization (ILO). Therefore, the interpretation of individual articles of the Constitution must be done in harmony with international norms set out by the UN, e.g., Universal Declaration of Human Rights, International Human Rights Covenants, ILO Agreement and recommendations, and etc. If domestic laws do not comply with these norms, though they may not immediately be declared unconstitutional, the above norms must be utilized as important standards in determining the constitutionality of such laws.
2.7.6 Whether Agreed Minutes Is a Treaty
Constitutional Court [99 Heon-ma 139, 142, 156, 160 Consolidated] Decision issued Mar. 21, 2001.
[Facts: The 1998 Fisheries Agreement between Korea and Japan was obtained through the consent of the National Assembly and was subsequently ratified, but the government did not forward the annexed Agreed Minutes to the National Assembly for ratification. The following case is the decision of the Constitutional Court regarding the issue of whether the Agreed Minutes are subject to ratification of the National Assembly as a treaty.]
There seems to be no definite principle determining the legal effect of Agreed Minutes under international law. In order for Agreed Minutes to be considered a “treaty,” its satisfaction of the legal characteristics of a treaty would provide important evidence. Treaties are not limited to those actually termed “treaties” but rather are “international agreement[s] concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (Vienna Convention on the Law of Treaties art. 2(1)(a)).”
The preamble of the Agreed Minutes states, “The government officials of the Republic of Korea and Japan have agreed to record the following regarding the relevant articles of the Fisheries Agreement between the Republic of Korea and Japan signed today.” According to this, two legal actors, the Republic of Korea and the state of Japan, reached an “agreement” regarding certain matters. Whether such agreement amounts to an “international legal relationship” will be the dispositive factor determining whether the Agreed Minutes can be categorized as a “treaty.”
Turning to the actual contents of the Agreed Minutes, paragraph 1 states that the governments of both countries shall closely cooperate to maintain good fisheries order in the East China Sea; paragraph 2 states that our government has intentions to cooperate with the governments of Japan and third countries not to damage fisheries relations; paragraph 3 states that the government of Japan has intentions to cooperate with governments of third countries with fisheries relations to make possible certain fishing activities by nationals and fishing vessels of the Republic of Korea in certain areas of the East China Sea; and paragraph 4 states that both countries have intentions to negotiate to maintain good fisheries order in the East China Sea on the basis of fisheries agreements concluded or to be concluded through the Korea-Japan Joint Fisheries Committee or other committees. These provisions show a declaration of intentions to cooperate towards a fisheries order, and it would be difficult to say that there is a purpose of reaching an immediately binding legal relationship. Article 14 of the Agreement further states that Annexes I and II form an indivisible part of the agreement, indicating that the annexes are integral elements of the agreement itself. However, considering that it does not provide for the Agreed Minutes, it would be difficult to say that the Minutes also form an integral part of the Agreement at hand that forms a treaty. Therefore, the assertions of the Claimants are without merit.
2.7.7 Legal Nature of the Joint Statement of ROK-US Ministers of Foreign Affairs
Constitutional Court [2006 Heon-ra 4] Decision issued March 27, 2008.
[Issue: On January 19, 2006, Korea and the United States issued a joint statement on the Launch of the Strategic Consultation for Allied Partnership which contained the following:
The ROK, as an ally, fully understands the rationale for the transformation of the U.S. global military strategy, and respects the necessity for strategic flexibility of the U.S. forces in the ROK. In the implementation of strategic flexibility, the U.S. respects the ROK position that it shall not be involved in a regional conflict in Northeast Asia against the will of the Korean people.
The Claimant in this case (member of the National Assembly) asserts that while the US armed forces stationed in Korea under the ROK-US Mutual Defense Treaty is necessary for the defense of the Korean Peninsula, consent to strategic flexibility in the Joint Statement violates the defense treaty and ultimately alters its effect, which would naturally violate Claimant’s rights by not obtaining National Assembly ratification pursuant to Article 60(1) of the Constitution. The following is the judgment of the Constitutional Court regarding the legal nature of this joint statement.]
Treaties are “international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” While the consent of the National Assembly to the conclusion and ratification of treaties pertaining to important matters is required by law (Constitution art. 60(1)), the National Assembly is granted this right regarding particular treaties provided by law in Article 60(1) of the Constitution.
As the Joint Statement at bar only contains statements of respect, by Korea and the United States toward each others’ position and contains nothing establishing legal rights or obligations, it cannot be regarded as a treaty. Even without having to consider whether it falls under the category of Article 60(1) treaties, we cannot hold that the National Assembly has the right to ratify this Joint Statement or that the Claimant, a congressman, holds the right of deliberation.
As this case is grounded on the belief that the Joint Statement is a treaty subject to the consent of the National Assembly on its conclusion and ratification, upon which the Claimant’s right to deliberation is based, the case is improper for lack of subject matter.
2.7.8 Application of International Customary Law
Supreme Court [97 Da 39216] Judgment issued December 17, 1998.
[Facts: In this case regarding the scope of sovereign immunity, the Court issued a holding based on a theory of limited sovereign immunity. As Korea is not a party to any treaties nor has enacted domestic legislation regarding sovereign immunity, this decision can be seen as having been issued on the basis of international customary law.]
According to the trial court, the Plaintiff was hired by the United States Army and Air Force Exchange Service, a non-appropriated fund organization affiliated with the United States of America and was stationed at Camp Casey, 2nd Infantry Division until unreasonably dismissed on November 8, 1992. With the United States as Defendant, he sought to nullify the dismissal and to be compensated for the lost wages from the day of dismissal to his reinstatement. A state, under international law and custom, does not submit to the jurisdiction of another state. Unless an exception has been made through treaties or diplomatic privileges have been renounced, our courts cannot exercise jurisdiction over a foreign state as defendant. Because there is no evidence that the United States neither submitted to the jurisdiction of our courts through any treaty provisions nor renounced its diplomatic privileges, this case is illegitimate for lack of jurisdiction.
According to international customary law, while a sovereign act of a state is not subject to the jurisdiction of another state in principle, one cannot say that it is customary that even the judicial acts of a state are immune to the jurisdiction of another state. It thus follows that unless there are special circumstances, e.g., a foreign judicial act done within the territory of the Republic of Korea could fall within our jurisdiction or is sufficiently related that the exercise of jurisdiction can unjustifiably interfere with the sovereign activities of the other state, our courts cannot exercise jurisdiction over judicial acts with this state as defendant. The decision of the Supreme Court that previously differed in this regard [74 Ma 281, Decision of May 23, 1975] shall be amended accordingly.
Thus the trial court ought to have determined whether our courts could exercise jurisdiction over the employment contract and dismissal based on the consideration of the overall circumstances, e.g., duties and activities of by the United States Army and Air Force Exchange Service, the plaintiff’s position and his assigned tasks, and sovereign activities of the United States and their relation to the Plaintiff’s tasks, after which it should have considered the legal nature of the employment contract and dismissal at hand, as well as their relation to the sovereign activities. However, the trial court decision, in holding that this case was illegitimate for lack of jurisdiction without having fully considered the nature of this employment contract and dismissal, shows a misunderstanding of the principles of law regarding the exercise of jurisdiction over foreign states and thus violated the law by not fully trying the case. There are reasons for pointing this out in particular among other issues of appeal.
3 The Legacy and Impact of Japanese Colonialism
3.1 Introduction
Following Commodore Matthew Perry’s entry into Japanese ports and the subsequent signing of the Treaty of Kanagawa, Japan actively pursued Westernization and quickly engaged in treaty making, concluding one of friendly relations with Korea in 1876, also known as the Treaty of Ganghwa. In this newly introduced treaty regime, Japan became a signatory of the Geneva Conventions in 1886, followed by the signing of the Declaration of Paris the following year. This was the beginning of its entry into the “Family of Nations,” as it was the one and only Asian country to do so at that period of time. The ultimate breakthrough occurred in 1894 with the signing of the Anglo-Japanese Treaty of Commerce and Navigation, only 16 days prior to Japan’s declaration of war on China, which recognized the equal freedoms of residence, travel, property, trade, and navigation. Throughout the war with China, Japan appealed to the West through letters and writings of Japanese scholars, testifying to its “scrupulous observance of international law.” In regards to Japan’s civilized and law-abiding character, Sakayue Takahashi wrote that “the Japanese nation laid stress upon the law of war, even before they were confronted … [and] refrained from revenge.” In a letter addressed to the Japan Mail, he also wrote:
I have seen to-day in a copy of the Japan Mail that reached me, that Mr[.] Creelman, the war-correspondent of the New York World, wrote to that paper to the following effect: “Torpedo-boats were going through the waves, sinking junks loaded with men, women and children endeavouring to escape.” … While regretting for the sake of Mr[.] Creelman, whose honour as a gentleman may be impaired by such absurd fabrications, I fear that the public might be led astray by what he has written, and therefore I feel constrained to refute the false statements made by him.
The Sino-Japanese War came to an end on April 17, 1895 with the conclusion of the Shimonoseki Treaty providing for, among others, the complete independence of Korea and the cession of certain territories. The same year, Japan established a pro-Japanese cabinet in Korea, which was soon ousted by Queen Min. Japan immediately responded by brutally murdering the Queen, thereby angering not only the Korean people but also Russia, who went on to deploy units to assist Korea. Under a strong Russian influence, a new Korean Empire was established.
Having lost control of the Korean Peninsula, Japan began to ally itself more with the West, signing its first mutual defense treaty with England on January 30, 1902 and another on August 12, 1905. The latter recognized Japan’s “guidance, management and protection” over Korea. Beginning in 1904, Japan forced Korea to sign a series of agreements including the 1905 Protectorate Treaty to consolidate its control. This culminated with Korea’s signing of the Treaty of Annexation on August 29, 1910 which made Korea a part of Japan.
Around the same time in 1904, Japan moved against Russian forces by crossing the Yalu River, Korea’s northern border, as well as the Russian fleet moored at Port Arthur. An important international legal issue in this case was whether a formal declaration of war had taken place – more specifically, if two diplomatic notes that were exchanged could be regarded as such a declaration. It is regarded that the Russo-Japanese War was significant in that “it was the first war in which both belligerents pledged to adhere to the international laws of war” signed at the 1899 Hague Convention. The following year in August 1905, the United States mediated the Portsmouth Agreement between the two, in which Russia conceded Japanese dominion over the Korean peninsula. Further, as all states involved equally claimed civilized statehood – with the exception of Korea and China, Japan was able to annex Korea with the diplomatic support of the United States and Britain and the indifference of other states. Also notable was Japan’s interaction with the international community in proving itself impeccable in its adherence to international law. As one scholar notes:
Many aspects of Japan’s prosecution of the war were, so to speak, done by the book, and facilitated by the attachment of international legal advisors to each army in the field: Japanese treatment of prisoners of war was impeccable, and Japan received much praise for its creation of a bureau to manage prisoners – in the exact manner prescribed by the 1899 Hague Conference. Also praised by the international press was Japanese treatment of the sick, the wounded, and the dead, as well as Japanese Red Cross facilities, operations, and first aid. Japan’s conduct of the siege and capitulation of Port Arthur was noteworthy for the care with which Japan protected Russian life and property there. The manner of the Japanese prosecution of the war was said to be a model of gentlemanly behavior – and this praise for Japan was of a piece with the otherwise distracting incidents examined in this article. With the Russo-Japanese War, Japan demonstrated a command of international law and a commitment to its principles. This mastery not only certified Japan’s status as an equal among the civilized states but also invited Japan to participate in world affairs in the same manner as its fellows-by resorting to state will in situations defined by legal ambiguity or military necessity.
As mentioned above, by 1905, Japan had tacit recognition of Britain and the United States regarding its control over Korea despite the fact that both had signed treaties with Korea affirming its independence. Korea’s fate was already evident, as stated by T.J. Lawrence: “I have no doubt that in the long run Korea will be annexed by one or the other of her powerful neighbors. It is the fate of small, weak, and corrupt states to fade out of the political map.” Soon enough, Japan confirmed this in a treaty with Korea, which gave Japan control over “foreign relations and affairs of Korea.” Such action went largely unchallenged, and vigorous protests of American missionaries and educators in Korea went unheeded by the United States and subsequently silenced by Japanese authorities. Finally, Korea was completely annexed on August 22, 1910 pursuant to the Japan-Korean Annexation Treaty.
3.2 Annexation by Japan
3.2.1 The Legality of the 1910 Annexation of Korea by Japan
From 1910 to 1945, Korea was annexed by Japan and thus fell under Japanese rule. The issue of how to comprehend and evaluate this historical fact forms the starting point and foundation of the bilateral relations of these two states. This is because the answers to the questions of whether Korea was a victim of Japanese rule, and, if it was a victim, depend upon an understanding and evaluation of the nature of that victimization and how Japan should take responsibility for its actions.
As this issue lies at the root of Korea-Japan relations, it was inevitably raised during the negotiations for the normalization of diplomatic relations between the two countries in the early 1960s. As the so-called “Kubota remark” demonstrated, the Japanese government once seemed to take the position that Japanese rule of Korea was not only legal under the international law of the time but also morally and politically justifiable. Currently, Japan admits that its rule over Korea was a morally unjustifiable act. However, from the days of the Korea-Japan normalization talks to the present, Japan’s position that the annexation was legal under the international law of the time remains unchanged. In contrast, the Korean government has consistently maintained its position that Japanese domination was not only a morally unjustifiable one but also illegal and devoid of any ground in international law. The two sides failed to bridge the differences in their positions during the diplomatic normalization process. It is well-known that Article 2 of the Treaty on Basic Relations between the Republic of Korea and Japan (1965) adopted an intentionally vague expression to evade a resolution of these differences, stating that the agreements signed by Korea and Japan on August 22, 1910 and prior to that “were already null and void.”
3.2.2 Treaties under Examination
The issue of the legality of Japan’s annexation of Korea can be traced to the validity of the 1910 Annexation Treaty. However, discussions about the legality of Japan’s colonial domination of Korea are not confined merely to the 1910 Annexation Treaty alone but also include discussions about a number of other agreements that led up to Japan’s formal annexation of Korea. This is because the 1910 Annexation Treaty is viewed as the result of a series of political steps developed with annexation in mind and the validity of the agreements that were concluded in this process is problematic. There are five agreements that are often questioned in discussions about the legality of the annexation. The following table summarizes the important contents of these five agreements and the reasons argued for their invalidity:
Basis for invalidity
3.3 Colonial Claims against Japan
3.3.1 The 1965 Korea-Japan Claims Settlement Agreement and Individuals’ Claims Rights
In 1965, Korea and Japan concluded “the Agreement on the Settlement of Problems Concerning Property and Claims and Concerning Economic Cooperation between the Republic of Korea and Japan” (1965 Claims Agreement) and settled the so-called “claims rights” problem between the two States. Namely, the Agreement provides in Article 2, paragraph 1, “The High Contracting Parties confirm that the problems concerning the property, rights, and interests of the two signatories and their nationals (including juridical persons) and the claims rights between the High Contracting Parties and between their nationals … have been settled completely and finally.” The plain meaning of the clause appears to mean that Korean nationals, as individuals, ceased to have any right to bring lawsuit against either Japanese people (including Japanese juridical persons) or the Japanese government. However, regardless of this clause, many Korean nationals have raised various kinds of “claims” in Japanese courts both against Japanese government and against Japanese companies. And recently, these “claims” even came to be raised in a Korean court and United States courts.
How can Korean nationals bring suits against the Japanese government and people? Were the individual rights to property, rights, interests and the claims rights of each state’s nationals not waived by Article 2, paragraph 1 of the 1965 Claims Agreement, and therefore is it not impossible for Korean nationals to bring suits against the Japanese Government and companies? Or is it only the right of diplomatic protection by the state that was waived by the clause, and therefore is it still possible for the Korean nationals to bring such suits? It may be said that this question has been one of the main legal issues in the several cases before Japanese courts. However, they do not seem to have answered it clearly. Moreover, it would clearly be one of the most important legal points in the cases before the Korean court and United States courts.
3.3.2 International Law Concerning the Interpretation of Treaties
The question outlined above is a typical problem of treaty interpretation. Needless to say, the interpretation of treaties is regulated by international law. The current positive international law concerning this issue is “the Vienna Convention on the Law of Treaties” (hereinafter Vienna Convention on Treaties), concluded in 1969. Both Korea and Japan are signatories to this Convention, so it may appear to be applicable in interpreting the 1965 Claims Agreement. However, while the 1965 Claims Agreement was concluded and entered into force in 1965, the Vienna Convention on Treaties was concluded in 1969 and entered into force in 1980. Therefore, a problem of intertemporal law exists in applying the Vienna Convention to the 1965 Claims Agreement.
On this point, Article 4 of the Vienna Convention on Treaties states, “Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.” This Article sets forth the principle of non-retroactivity for the Convention. Therefore, in interpreting the 1965 Claims Agreement, it is necessary to ascertain the international laws pertaining to treaty interpretation that existed at the time when the Korean-Japan Agreement was concluded.
Before the Vienna Convention on Treaties was concluded in 1969, no rules of international law regulating interpretation of treaties existed in the form of a “treaty.” Therefore, to the extent that such rules of international law were in effect, they would have existed as norms of customary international law. It is unclear whether in 1965, such norms of customary international law existed as to the issue of treaty interpretation, and even among scholars, the opinions were divided as between those who acknowledge that customary norms of treaty interpretation existed at the time and those who do not.
In this context, the various approaches to treaty interpretation argued at that time can be summarized as follows: (1) the subjective (or intent of the parties) approach, which regards ascertainment of the intentions of the parties to the treaty as the aim and goal of treaty interpretation, (2) the objective (or textual) approach, which seeks to ascertain the meaning of the text of a treaty, and (3) the teleological (or object and purpose) approach, which argues that those who interpret a treaty must first ascertain the object and purpose of the treaty and then interpret it to give effect to that object and purpose.
In attempting to ascertain the norms of customary international law which were in effect around the year 1965 – and if such norms were not in existence, to ascertain the appropriate principles of treaty interpretation from the point of view of jurisprudence – most representative works of international law scholars published around the year 1965 may be consulted. In Hans Kelsen’s work, published in 1966, the primary purpose of the interpretation of treaties is deemed to be the determination of the intent of the parties. To effectuate this purpose, it is said that the historical circumstances behind the conclusion of a treaty – including the political or economic circumstances at the time – are to be considered. This methodology also incorporates interpretation according to its wording – the so-called logico-grammatical interpretation – as a method of interpreting treaties. At the same time, endorsing this method, Kelsen adds, “The wording of a legal instrument may not be in conformity with the ascertainable intentions of its authors. The wording may go beyond, or remain behind, their intentions.” This point seems to be particularly relevant in interpreting the 1965 Claims Agreement.
Next, in his textbook of international law published in 1959, A. Verdross, on the basis of his review on prior case precedents and the works of international law scholars, presents 11 principles of treaty interpretation. Key portions of these principles are as follows: (1) The leading principle says that the true intention of the parties must be pursued because all international treaties are negotia bonae fidei. (2) However, the intention of the parties must be found first of all from the treaty itself. Therefore, if a clear and plain meaning comes out from the context of a treaty, then it is only when the meaning leads to an absurd result, or when the fact that the parties wanted some other meaning is proved, that interpretation may deviate from the wording. (3) Ambiguous treaty norms are to be interpreted in the light of general international law, as well as the principles which regulate the material matters to which the treaty belongs. When dubious, the formulation history of the treaties (travaux préparatoires) can also be invoked. Because the treaties of contracting character are applied only to the specific relations which are within the sights of the treaties, an application of a treaty norm, by analogy, to similar cases is in principle allowable only to the treaties which include the general norms.
If one is to assume that the intentions of the parties to a treaty are reflected in the text of the treaty, then the subjective and objective approaches are in essence different expressions of the same methodology. The representative works of international law scholars can be said to have endorsed the position that the subjective and objective approaches must be utilized in the way of supplementing each other. And, if a teleological approach is added to them, the principles of treaty interpretation as described above may be said to be fully applicable in interpreting the 1965 Claims Agreement. In other words, Article 2, paragraph 1 of the 1965 Claims Agreement should be interpreted according to its purposes, by way of ascertaining the intent of the parties through making the meaning of the text clear. In the interpretation, the historical circumstances of the time when the 1965 Claims Agreement was concluded must be considered. And, if the text of the treaty is ambiguous, the preparatory materials of the treaty (travaux préparatoires) must also be used to aid the task of interpretation.
3.3.3 The Purpose of the 1965 Claims Agreement and Related Circumstances
The fundamental purpose of the Agreement was to normalize relations between the states and in doing so, to resolve the complicated issues of property rights between them. In order to accurately understand the purpose of the 1965 Claims Agreement, as well as the meaning of the Agreement’s text and the intentions of the parties, it is necessary to review the circumstances that led up to the conclusion of the Agreement.
One of the main problems that needed to be resolved in normalizing relations between Korea and Japan was the issue of property rights and claims, namely the issue of Japanese property existing in Korea and property claims that might be thought to be held by the Japanese government or Japanese nationals against the Korean government or Korean nationals, and conversely, the issue of Korean property existing in Japan and property claims that might be thought to be held by the Korean government or Korean nationals against the Japanese government or Japanese nationals. These issues existed because, in the process of ruling Korea as a colony, Japan often brought Japanese property into Korea or took Korean property to Japan. The nationals of each country also crossed into the other country to conduct economic activities there.
As to Japanese property existing in Korea, this property came to be vested in the Military Government in Korea through Ordinance No. 33, issued on December 6, 1945 by the Headquarters of the United States Army Forces in Korea. On September 11, 1948, it was then transferred to the Government of Korea pursuant to the “Initial Financial and Property Settlement between the Government of the Republic of Korea and the Government of the United States of America.” At the time, Japan objected to such measures, claiming that they violated international law and were unlawful. However, the US took the position that Japan’s property rights were extinguished by Article 4, paragraph 2 of the 1951 Peace Treaty and that Japan could not make valid claims as to those rights. The US notified both Korea and Japan of this position. Ultimately, Japan accepted the position of the US on December 31, 1957, and consequently, the only issue that remained between Korea and Japan was the problem of Korean property existing in Japan and property claims that might be thought to be held by the Korean government or Korean nationals against the Japanese government or Japanese nationals.
During the negotiations regarding the normalization of relations, Japan took the position that it would recognize only the “claims” having an irrefutable legal foundation and proof of facts. However, in light of the fact that during the war there had been heavy bombing and destruction in Japan, and that the Korean War erupted in 1950 and had lasted to 1953, substantiating the proof of facts or legal foundations for these claims was obviously difficult. As a result of these difficulties, the two states decided to resolve the problem through a “political agreement.” It was under this circumstance that Article 2, paragraph 1 of the 1965 Claims Agreement was concluded.
It has been asserted that the 1965 Claims Agreement was concluded pursuant to the 1951 Peace Treaty between Japan and the Allied Powers, and specifically pursuant to Article 2 and Article 4 of this Treaty. However, it is axiomatic that a treaty is not binding on those states that are not parties to it. As Korea was not a party to the 1951 Treaty, it was not bound by any provision of that Treaty when it concluded the 1965 Claims Agreement. It makes clear, while the 1951 Treaty may have played a political role in sparking the Korea-Japan talks, it did not create the legal framework for the 1965 Claims Agreement. It is crucial that a clear, legal distinction be made between peace treaties (like the 1951 Treaty) that seek to resolve postwar problems between belligerents, and agreements (like the 1965 Claims Agreement) that relate to the establishment of diplomatic relations between states together with the resolution of property disputes.
3.3.4 Intentions of the Governments
3.3.4.1 Japanese Government
When one examines accessible public records, it is easy to see that the Japanese government has clearly represented that Article 2, paragraph 1 of the 1965 Claims Agreement does not extinguish individual rights but only the state’s right of diplomatic protection, leaving no room for question on this point. For example, when Mr. Ishibashi, a member of the House of Representatives of the Japanese Diet, inquired on November 5, 1965 at the “Special Committee on the Treaty between Japan and Korea” whether the treaty extinguished not only the right of diplomatic protection but also individual claims rights, Mr. Shiina, Minister of Foreign Affairs, responded, “In my view, the expression that the individual claims rights are extinguished is not proper … It is not that the government first took the individual claims rights to its hand, and then relinquished them. It is only that the government waived its right of diplomatic protection as to claims against Korea, meaning that as a result, even if Japanese people were to make claims individually [against the Korean Government or Korean people], Korea would not acknowledge such claims … If I have ever used the expression of ‘waiver of them [individual claims rights],’ I would like to take this opportunity to correct it.” This statement by Foreign Minister Shiina was made in the consideration and ratification process of the 1965 Claims Agreement and as such, has a decisive importance on the interpretation of Article 2, paragraph 1 of the Agreement.
This position on the part of the Japanese government has been consistent, and was repeated on several occasions in response to the inquiries in the Diet. The most widely known example of this position came out from the Committee on Budget of the House of Councilors held on August 27, 1991. At the Committee, then government delegate Mr. Yanai stated, “By the so-called Japan-Korea Claims Agreement, the claims rights problem between the two states are settled finally and completely. The meaning of this is that all are settled including the claims rights of the nationals of both nations as existed before. However, this means waiving of the rights of diplomatic protection which both Japan and Korea possessed as States. Accordingly, this does not mean the extinguishments of so-called individual claims rights in the sense of domestic law. It only means that the Korean and Japanese governments, as Governments, cannot raise problems regarding these claims by exercising their respective rights of diplomatic protection.” This statement shows the Japanese Government’s interpretation of the clause clearly.
Several records of Japanese Diet also support both Mr. Shiina’s and Mr. Yanai’s statements. On April 6, 1993, at the Committee on Foreign Affairs of the House of Councilors, Mr. Tanba, the Director-General of Treaties at Ministry of Foreign Affairs at the time, stated, “[Our] government has long been representing that the claims rights individuals may have are not waived directly by the effect of the Treaty.” He also stated on May 26, 1993 at the Committee on Budget of the House of Representatives, “What is said in Article 2, paragraph 1 of the Treaty is only a relinquishment of the right of diplomatic protection, with regard to all the ‘property, rights and interests’ and ‘claims rights.’ In this point, things are just as you [Mr. Utsnomiya, a member of the House of Representatives] said.”
On March 25, 1994, at the Committee on Cabinet of the House of Representatives, Mr. Takeuchi, Foreign Minister’s Secretary, stated that “with regard to property claims issues between Japanese and Korean citizens, the right of diplomatic protection, which both states have as State, was waived … As we have stated before, the terms of the treaty itself does not extinguish individual property rights or their claims rights directly within the meaning of domestic law.”
And as recently as March 14, 2000, Mr. Fukushima, a member of the House of Councilors, inquired, “What about Foreign Affairs Ministry’s then Director General of Treaties Yanai’s statement of August 27, 1991 that only the right of diplomatic protection was waived and that individual claims rights were not extinguished?” Mr. Hosokawa, Director-General of Civil Affairs of the Ministry of Justice, responded, “We are well aware of Mr. Yanai’s answer, and we also agree with his statement.”
In addition, in relation to the interpretation of Article 14(a)(2)(I) and Article 19(a) of the 1951 Peace Treaty, the Japanese government has consistently taken the position that the waiver of “rights to claims” encompassed only the state’s right of diplomatic protection and did not extend to individual rights. Japan has also taken this position in relation to the interpretation of Article 6 of the “Joint Declaration of Japan and Union of Soviet Socialist Republics.” On March 25, 1994, at the Committee on Cabinet of the House of Representatives, Mr. Nishida, Director of the Russia Division of the Europe-Asia Bureau, stated as follows: “In Article 6 of the Japan-USSR Joint Declaration which is currently in effect between Japan and Russia, the governments waived their rights to claims. As only the governments’ own rights to claims and the so-called right of diplomatic protection are waived, claims of our citizens against Russia or against its citizens were not waived by the clause.” Also, on March 4, 1997, at the First Sub-Committee of the Committee on Budget of the House of Representatives, Foreign Minister’s Secretary Togo stated, “Though all rights to claims were waived in Article 6, paragraph 2 of the Japan-USSR Joint Declaration, it does not mean that the Declaration prevents individuals from raising claims.”
3.3.4.2 Korean Government
Immediately after the conclusion of the 1965 Claims Agreement, in regard of Article 2, paragraph 1 of the Agreement, the Korean government appears to have adopted a different interpretation from that of the Japanese government. The Korean government issued a publication on August 15, 1965, in which the government explains that all rights to property and claims rights on the part of both states and their nationals were extinguished by the 1965 Claims Agreement. However, if it is true that Korea intended to waive all property rights and claims rights through the Agreement, then there exists an unequivocal difference of intent between the two contracting parties.
The significance of this difference of intent is as follows: A treaty signifies, by definition, a manifest agreement of intentions of the contracting parties. If such an agreement of intentions did not occur in the conclusion of the 1965 Claims Agreement, Article 2, paragraph 1, then this would mean that the provision of the Agreement could not have become a treaty and is therefore null and void for that reason. If this is what really happened, Article 2, Paragraph 1 of the 1965 Claims Agreement could not have regulated the property issues as a valid treaty provision, and again the result would be that an invalid provision has been misconstrued as a valid one by both governments. However, this conclusion does not seem to be a logically reasonable one, especially since this provision has had a certain concrete regulatory force in the past. If good faith is to be maintained in interpreting a treaty provision, it must be interpreted in the way of making it meaningful and valid rather than making it meaningless and invalid.
One important fact to be taken note of is that the Korean government’s position in relation to Article 2, paragraph 1 has not been consistent. As can be seen above, in its publication issued directly after the conclusion of the 1965 Claims Agreement, the Korean government took the position that all property, rights, and interests, and the claims rights of Korean nationals had been extinguished. However, the Korean government changed its attitude and has adopted the position that the Agreement did not extend to claims by individuals, and this position has been expressed repeatedly. In July 10, 1991, Minister of Foreign Affairs Sang Ok Lee stated in a response to a question in the Korean National Assembly, “At the governmental level, this issue [problems of the property, rights, and interest and claims rights] has been resolved by the Treaty Regarding Claims and Economic Cooperation, concluded in 1965 during the normalization of relations between Korea and Japan.” On September 20, 1995, Minister of Foreign Affairs No Myoung Kong stated in the Reunification and Foreign Affairs Committee of the Korean National Assembly, “From a governmental standpoint, I believe that our government has resolved the issue of monetary compensation from Japan.” At the same meeting, he also stated, “The government acknowledges the claims rights of individuals.” These statements clearly show that the Korean government is not of the opinion that individual rights were extinguished by the Agreement.
As recently as October 24, 2000, the Korean Ministry of Foreign Affairs and Trade responded to an inquiry by a member of National Assembly, Mr. Won Woong Kim, who inquired, “Is it the Korean government’s position, as Japan asserts, that all claims for compensation have been extinguished by the 1965 Claims Agreement? If this is the government’s position, what is the basis for this opinion? Are these claims extinguished only as to governmental claims, or as to individual claims as well? I request that the Korean government present its official position on this matter.” Mr. Chung Bin Lee, Minister of Foreign Affairs and Trade, responded, “The Korean and Japanese governments, in order to resolve issues regarding claims such as forced laborers and forced military draftees, concluded ‘The Agreement on the Settlement of Problems Concerning Property and Claims and Concerning Economic Cooperation between the Republic of Korea and Japan’ in 1965. The claims problem was thereby settled as between the two governments … However, the Korean government’s position is that the Agreement does not affect individuals’ claims rights or their rights to bring lawsuits or other legal actions.”
How can these contradictory pronouncements by the Korean government be analyzed and understood? The first possibility is to conclude that the government’s position, as described in “The Explanation of the Treaty and Agreements between the Republic of Korea and Japan,” did not express the true intentions of the Korean government. Alternatively, one could conclude that the intentions expressed after 1965, namely that the 1965 Claims Agreement did not extinguish individuals’ claims rights, did not reflect the true intentions of the Korean government. The final possibility is to conclude that the intentions of the Korean government changed over time.
Among these three possible conclusions, the second seems to be the most unreasonable interpretation as Korean government’s intentions expressed after 1965 have been repeated several times and also are recent ones. Therefore, the remaining possibilities of understanding these prima facie contradictory attitudes of the Korean government are either to regard the Korean government as having the opinion that individual claims were not extinguished though there were discrepancy between its real intention and its expression, or to regard it as having changed its own opinion over time.
If the Korean government is seen to have changed its opinion, then the problems of the conclusion and validity of the treaty arise again. Taking this point into account, and considering the fact that Japan’s position has remained remarkably consistent, the most reasonable interpretation that upholds the validity of the treaty seems to conclude that the parties agreed not to extinguish the rights of individuals.
3.3.5 Interpretation of the 1965 Claims Agreement
3.3.5.1 Text of the Agreement and Its Interpretation
Article 2, paragraph 1 of the 1965 Claims Agreement states, “[t]he problems concerning the property, rights and interests of the two signatories and their nationals (including juridical persons) and the claims rights between the High Contracting Parties and between their nationals … have been settled completely and finally.” As is shown above, the Japanese government has consistently taken the position that this provision of the Agreement did not extinguish the claims rights of individuals; it only waived the rights of diplomatic protection as to those claims. The Korean government’s position has been less consistent, but recent pronouncements, repeated over time, have expressed the position that individuals’ claims rights were not extinguished. Japan’s consistent position, repeated several times through communications to the Japanese Diet, has become a matter of public record. The Japanese government’s interpretation also has the character of the “authoritative interpretation” of the text.
When all of these points are taken into consideration together, it is clear that the wording of the 1965 Claims Agreement cannot be interpreted simply as a complete waiver of all claims of the governments and their nationals. Here exists really a situation as pointed out by Kelsen, “The wording of a legal instrument may not be in conformity with the ascertainable intentions of its authors. The wording may go beyond, or remain behind their intentions.” This is the reason why the 1965 Claims Agreement should be interpreted as having waived only the right of diplomatic protection.
3.3.5.2 Meaning of “Property, Rights, Interests” and of “Claims Rights”
If Article 2, paragraph 1 of the 1965 Claims Agreement only waived the right of diplomatic protection, then the next question is, “What kinds of rights were waived as a matter of diplomatic protection?” This is the problem of interpreting the words, “property, rights, and interests” and “claims rights.”
Generally speaking, “property, rights, interests” seem to be the rights that can be realized under national law, and that “claims rights” seem to be the rights that are recognizable under international law. However, when we review the way that these terms were used during the negotiations that led up to the 1965 Claims Agreement, it is apparent that the terms should not be understood in their “general ordinary meaning.” As a matter of fact, the parties to the treaty, Korea and Japan, attributed specific meanings to those words.
It was accurately pointed out that “during the negotiations for the conclusion of the Agreement, the Korean government had used the term ‘claims rights’ as substantial rights that could be claimed against Japan on a clear legal foundation.” The so-called “Eight Items,” or the Outline of Claims which were argued by the Korean government during the treaty negotiations, were a kind of consolidated contents of those “claims rights.” However, in the process of the codification of the Agreement, Japan also took the position that “claims rights” must mean only the legal status of being able to make claims, not the substantial rights. Article 2 was drafted in such a way as accepting this argument of Japan. And accordingly, the provision of section 2(a) was included in the Agreed Minutes annexed to the 1965 Claims Agreement, which states: “It is understood that the words ‘Property, rights, and interests’ mean all kinds of substantial rights of which the property values are recognized on the basis of law.”
It is natural that the Japanese government understands the meaning of the terms, “property, interests, rights” and “claims rights” in this manner. The Director-General of the Treaties Bureau, Mr. Tanba, stated in a response to the Japanese Diet, “‘Property, rights, and interests’ mean all kinds of substantial rights which are recognized under law to be of property value. The term ‘claims rights’ referenced in the Claims Agreement, is not included in the concept of ‘property, rights, and interests,’ and refers to the legal status of being able to make claims for which the existence of legal rights itself is in question.” The concrete examples of “property, rights, and interests” offered in the Japanese Diet included “creditor’s rights, rights to collateral, and the right to demand payment of receivables,” and the examples of “claims rights” included “claims for compensation for damages for which evidence is lacking, pain and suffering claims, wage claims, etc.”
Therefore, the most significant difference between the terms “property, rights, and interests” and “claims rights” is that, while the former mean established rights with clear and solid legal foundations, the latter are unsettled rights for which the legal foundations can be disputed.
3.3.5.3 Government’s Capacity to Waive Individual Rights
One of the main legal issues concerning the interpretation of Article 2, paragraph 1 of the 1965 Claims Agreement is “Whether a State can extinguish its nationals’ individual rights through a treaty or not.”
It is generally said that a state may compromise or release claims, leaving the individual or corporation concerned without any remedy. However, some international law scholars have different views on this problem. For example, a scholar argues on the 1965 Claims Agreement that a government may not waive individuals’ property and rights, and another scholar argued that this is the common view. Therefore, there seems to be no settled opinion on this issue among the scholars of international law.
What is decisive, however, regarding the interpretation of Article 2, paragraph 1 of the 1965 Claims Agreement is whether Japan has, in real fact, extinguished individual rights or not. It does not automatically follow that, in concluding a treaty, states always do, in fact, what they are able to do in theory.
It would have been possible for the Japanese government to obtain the consent of the Korean government to extinguish the rights of the Korean and Japanese people by the terms of the treaty rather than by separate domestic measures. However, Japan did not actually do so. Japan did not extinguish the rights of the Japanese and Korean nationals by the Agreement, but only diplomatic protection of those rights. Thus, the rights of the citizens of the respective countries could not be extinguished without internal measures extinguishing them.
Even though the Japanese government could have secured a waiver of individuals’ rights through the terms of the 1965 Claims Agreement, Japan in fact did not and could not seek such a clause. This is likely a result of the democratic controls over the treaty ratification procedure. Article 73 of the Japanese Constitution requires that the treaties negotiated by the Cabinet be first approved by the Diet, thereby institutionalizing democratic control over the treaty ratification process. The Japanese government likely was fully aware of the fact that a treaty extinguishing the individual rights of Japanese citizens would not have been approved by the Diet, in which case there would be no ratification and the treaty would not have entered into force. As already discussed above, at the Special Committee on the Treaty between Japan and Korea, Mr. Ishibashi as a member of the House of Representatives strongly challenged the government by asking whether the Treaty extinguished the rights of the Japanese citizens, and in response, Foreign Minister Shiina stated that the Treaty “only waives rights to diplomatic protection but not individual rights.”
3.3.6 Domestic Measures in Korea and Japan
If Article 2, paragraph 1 of the 1965 Claims Agreement is interpreted as set forth above, then it can be said that only the state’s right of diplomatic protection, not individuals’ rights, was waived. If the meaning of “property, rights and interests” and also of “claims rights” is understood in this manner, then we must ask, “What is the legal significance of the domestic legislation passed in Korea and Japan following the conclusion of the 1965 Claims Agreement?”
3.3.6.1 Japan’s Legislation No. 144
In the same year that the 1965 Claims Agreement was concluded, Japan enacted on December 17 the “Law Regarding Measures to be Taken with Respect to the Property Rights of the Republic of Korea upon Enforcement of Article II of the Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Co-operation between Japan and the Republic of Korea” (Law No. 144). Through this legislation, Japan attempted to extinguish the “property, rights and interests” of Korean nationals.
The specific rights of Korean nationals purportedly extinguished by Law No. 144 included the creditor’s rights, rights to collateral, possessory rights, and rights related to securities. It is unquestionable that these rights correspond to the “property, rights and interests” provided in Article 2, paragraph 1 of the 1965 Claims Agreement. However, it is also beyond any question that Law No. 144 does not include rights which correspond to the “claims rights” under the 1965 Claims Agreement. The reason for this is that Law No. 144 contains no provisions relating to “claims rights.” Moreover, the “claims rights” provided in the 1965 Claims Agreement refer to those claims that are not yet settled and therefore, cannot be extinguished by law. Therefore, the “claims rights” of Korean nationals have not been extinguished, even by Japanese domestic law, namely Law No. 144.
This point is again affirmed by the position of the Japanese government as expressed through its response to the Diet. Specifically, Director-General of Treaties, Mr. Tanba has stated, “In referring to the waiver of claims rights, the waiver does not also extinguish individuals’ rights to bring suit in the other state’s courts … How those courts decide cases brought by individuals, in this case Philippines or Korean nationals, is up to the Judiciary, and the Administration is paying close attention.”
In addition, Secretary to the Minister of Foreign Affairs, Mr. Takeuchi also stated with regard to Article 2, paragraph 1 of the 1965 Claims Agreement, “Regarding our domestic legal treatment of matters, an individual’s own government – in this case, Korea – cannot exercise, according to the built-in mechanism of the treaty, its right of diplomatic protection. With regard to an individual’s claims right … an individual’s right to bring a suit in court is not deprived by the treaty.”
It may be argued that Law No. 144 is “the implementing legislation” of the 1965 Claims Agreement. However, if the Agreement is interpreted to be only a waiver of the right of diplomatic protection, then it is impossible to adopt this view. The Agreement waives the right of diplomatic protection and therefore it is secured that Korea, on the governmental level, cannot submit any objection to Japan’s domestic measures. It was on this basis that Japan enacted domestic legislation and attempted to unilaterally extinguish the property, rights, and interests of Korean nationals. The domestic legislation was not meant to implement the 1965 Claims Agreement. Rather, having secured the guarantee that Korea could not make any objection, Japan enacted the legislation to unilaterally extinguish individual rights of Korean nationals. Also of decisive importance is the fact that Law No. 144 contains no provisions regarding “claims rights,” and therefore did not extinguish individual rights as to those claims.
Additionally, it is highly likely that Japan’s attempt to extinguish individual rights of Korean nationals through Law No. 144 violates the Japanese Constitution. Article 29, section 1 of Japan’s Constitution protects “the right to property” and prohibits the violation of that right. The intended beneficiaries of this provision are not specified in the Constitution, but can be interpreted as including foreign nationals. Therefore, Law No. 144 may be said to be null as it violates Article 29 of the Japanese Constitution.
Moreover, Article 29, section 3 of the Japanese Constitution states, “Private property may be taken for public use upon just compensation therefor.” The rights of Korean nationals were prima facie extinguished by Japanese domestic legislation, but “just compensation” was never provided. Because this also is in violation of the Constitution, it can be said that Korean nationals’ rights were not extinguished either by treaty or by Japanese domestic law.
3.3.6.2 Korea’s Domestic Measures
In 1966, Korea enacted the “Legislation Concerning the Distribution and Management of the Claims Treaty Fund.” In January 1971, Korea enacted the “Legislation Concerning Report of Individual Claims Against Japan,” and began processing property claims of Korean nationals against Japan and Japanese nationals. In December 1974, Korea enacted the “Legislation Concerning Compensation of Individual Claims Against Japan.” Under this legislation, Korea distributed compensation funds pursuant to the reported claims by Korean nationals according to the 1971 law. All these laws were repealed in December 31, 1982 as their objectives were deemed to be fulfilled.
It has been argued that after having received Japan’s lump sum payment of funds under the 1965 Claims Agreement, the duty to compensate Korean nationals was transferred from the Japanese government to the Korean government, and that the latter carried out this duty by enacting domestic legislation. However, this view seriously miscomprehends the fundamental objectives of Korea’s domestic measures. The funds that were paid to Korea by Japan have no legal relationship to the “property, rights, interests” or the “claims rights,” the diplomatic protection for which was waived pursuant to Article 2, paragraph 1 of the Agreement. The explanation of the Japanese government is clear on this point: “As Korea says, the $500,000,000 fund provided to Korea under Article 1 does not have the character of a debt or liability for the claims of Korea against Japan. This fund was provided solely for the purpose of economic cooperation.”
As it is pointed out, the decision of whether or not to distribute the funds received pursuant to the Agreement was entirely assigned to Korea as a matter of domestic jurisdiction. The 1965 Claims Agreement did not create any obligations of international law, under which Korea was obligated to distribute the funds to its own nationals. On this point, the Agreement is fundamentally different from, for example, the Peace Treaty signed by Italy and the Allied Powers after the World War II. Articles 74(E), 76(2), and 79(3) of that Treaty impose obligations on Italy to provide compensation to its own nationals in relation to their claims against the Allied Powers. In contrast, Korea had no obligations under the 1965 Claims Agreement to provide compensation, on behalf of Japan, to Korean nationals.
The Korean government was of the intention to use the funds “to construct multi-purposed dams, to import vessels and equipment for fishing, to expand railroads and ports and other infra-structures, without using them for the specific individual, groups of individuals or region.” The fact that Korea had no intention of distributing these funds to its nationals as compensation for the waiver of claims was unequivocally communicated to and understood by Japan during the negotiations for the conclusion of the Agreement. In consideration of the fact that the Korean government had given up the right of diplomatic protection, and that on this basis Japan had enacted legislation unilaterally extinguishing the individual rights possessed by Korean nationals, Korea provided through domestic legislation a remedy in the context that the exercise of rights or submission of claims by individuals had become, from a “practical” standpoint, quite difficult.
Even putting aside the legal analysis, if we assume that all “property, rights, interests” and “claims rights” of Korean nationals were waived by treaty and that the received funds represented compensation for those rights, then each of the approximately 1,700,000 victims would have received $176 each in compensation for their suffering. Some commentators view this to be a ridiculous result of such an interpretation.
3.3.7 Remaining Issue – Interpretations of Japanese Courts
As both Article 2, paragraph 1 of the 1965 Claims Agreement and Article 14(a)2(I) and Article 19(a) of the 1951 Peace Treaty waived Japanese nationals’ property rights, these clauses seem to have some similarity. And the Japanese government interprets these clauses to waive only diplomatic protection and not individual rights. However, concerning the interpretation of Article 14(a)(2)(I) and Article 19(a) of the 1951 Peace Treaty, Japanese courts have rejected the government’s view for the most part. In other words, contrary to the Japanese government’s position, the majority of Japanese courts interpret the clauses to directly extinguish Japanese nationals’ individual rights.
However, almost all of the judgments of Japanese domestic courts are about the 1951 Peace Treaty. The 1951 Peace Treaty and the 1965 Claims Agreement have two very different goals and objectives. Hence, the propriety of applying the same analysis used in the interpretation of the 1951 Peace Treaty to the 1965 Claims Agreement is highly questionable. The 1965 Claims Agreement is wholly different in its legal character from the Peace Treaty which settles war reparations by waiver of rights of a state and its citizens. In addition, not all Japanese courts have adopted this position. In interpreting Article 14(a)(2)(I) of the 1951 Peace Treaty, the Japanese Supreme Court found on July 4, 1969, that the clause “cannot be interpreted as disposing abroad properties belonging to Japanese nationals to fill up the amount of war reparations, on the basis of the exercise of autonomous exercise of governmental power to dispose properties of Japanese nationals. This is to be referred as only a promise not to exercise the right to make an objection or the right of diplomatic protection, which might be exercised in order to avoid disparate treatment of the property abroad by the foreign governments.”
The Japanese Supreme Court’s decision is consistent with its government’s position that despite the fact that the 1951 Peace Treaty specifies a waiver of Japanese “nationals,” only the diplomatic protection was waived by the Treaty. In addition, the various lower court decisions concluding otherwise, as numerous as they may be, remain lower court decisions, while this Supreme Court decision in agreement with the Japanese government is that of the highest court in Japan.
3.3.8 Conclusion
Based on the above examination it may be concluded as follows. First, Article 2, paragraph 1 of the 1965 Claims Agreement did not extinguish the “property, rights and interests” and “claims rights” of the nationals of one state against the government and nationals of the other. Rather, the Agreement only extinguished the states’ rights to provide diplomatic protection as to the rights of their nationals. This interpretation is supported by the Japanese government’s own consistent position and the corresponding Korean government’s positions.
Second, the fact that the two governments were only able to extinguish diplomatic protection but not individual rights is a result of the democratic controls that were placed over the treaty ratification procedures.
Third, because the 1965 Claims Agreement did not extinguish Korean nationals’ “property, rights and interests” against Japan or its nationals, Japan attempted to extinguish those rights by a domestic measure, legislation of Law No. 144. During treaty negotiations, the Korean government agreed not to object to such legislation, which is precisely the type of diplomatic protection waived by the treaty. However, Legislation No. 144 was in violation of the Japanese Constitution because it did not provide any compensation in exchange for its unilateral waiver of rights.
Fourth, even if Law No. 144 is valid, it only waived Korean nationals’ “property, rights and interests” against Japan and not their rights to “claims.” This is so because a “claims rights” in the context of the 1965 Claims Agreement refers to the “status where, if the legal existence of a right is in dispute, the alleged holder may make a claim or bring suit.” The claims rights of individuals cannot be extinguished until they are consolidated as rights.
Fifth, the Korean government’s distribution of the amount of the funds received from Japan was not to fulfill its obligations under the 1965 Claims Agreement. Korea had never owed such an obligation.
In conclusion, Korean nationals’ “property, rights and interests” against Japan and its nationals are prima facie extinguished pursuant to Japanese domestic law, and all corresponding diplomatic protection by Korea as a state has been waived. On the other hand, Korean nationals’ “claims rights” against the Japanese government and Japanese nationals are not extinguished by Japanese domestic law or by the 1965 Claims Agreement, though the diplomatic protection of them by Korea has been waived. Thus, even under Japanese domestic law, “claims” or the right to seek adjudication of the existence of a legal right survives. Therefore, even under Japanese domestic law, Korean nationals may make “claims” and can bring suit to settle the existence of legal rights against both the Japanese government and Japanese nationals. As appropriately expressed by lawyer and Diet member Utsunomiya, “[The Agreement] provides that the Korean government will not say anything, but does not extend to provide that Korean nationals will not say anything either.”
Needless to say, the above conclusion also applies to Japanese nationals’ property, rights, and interests and their claim rights against the Korean government and people. In other words, according to the above conclusion, their rights were not extinguished by the Japanese government in the 1965 Claims Agreement, and therefore they can institute lawsuits against the Korean government and people in spite of the Ordinance No. 33 of the Military Government in Korea, the “Initial Financial and Property Settlement between the Government of the Republic of Korea and the Government of the United States of America” and Japanese government’s acceptance of these measures in 1957. If Japanese nationals begin to claim their own rights and bring lawsuits, the so-called problem will go back to the time before 1965. It goes without saying that this is the most undesirable situation for both States. Therefore, it is fully agreeable that the 1965 Claims Agreement should have settled completely and finally the problems concerning the property, rights, and interests and the claims rights of the nationals.
However, until now, no lawsuit has been brought by Japanese nationals against the Korean government or nationals, and it does not seem likely to happen in the future. What does this fact mean? This means that the so-called “after-war compensation claims” raised by Korean nationals are the result of not having liquidated the negative historical legacy between the two States, and those who have suffered from that are “Korean” nationals. And again, many seem to admit the interpretation that Article 2, paragraph 1 did not extinguish the individuals’ claims rights. This may be the result of the request that the so-called after-war claims raised by Korean nationals should not be thwarted by a specific treaty clause.
3.4 Comfort Women and Forced Labor
3.4.1 The Korean Constitutional Court’s Decision on Comfort Women for the Japanese Military Case
The Constitutional Court of Korea reached a decision (2006 Heonma 788 Decision [Gyeoljeong], issued August 30, 2011) concerning the issue of “Comfort Women for the Japanese Military,” namely, that a dispute of interpretation existed between Korea and Japan as to whether the compensation claim of the comfort women was extinguished pursuant to the Agreement between the Republic of Korea and Japan Concerning the Settlement of Problems in Regard to Property and Claims and Economic Cooperation (Claims Agreement) Article 2(1), and held that failure of the Government (Ministry of Foreign Affairs) to resolve such dispute of interpretation pursuant to Article 3 of the above Agreement violated the Constitution.
The Supreme Court decision regarding “Compensation for Forced Labor” concerned the victims of forced labor who had been employed by Japanese munitions companies for the production of weapons during the colonial era. The victims filed a damage suit against these companies for unlawful acts and for the payment of unpaid wages, for which the Supreme Court upheld their right to compensation and payment of wages.
This section describes the progress leading up to such decisions, discusses their significance, and evaluates the implications of judicial activism in the issues concerning past history.
3.4.1.1 Background
From the early 1930’s until the defeat of Japan in the Second World War in 1945, the issue of comfort women who were taken to the battlefield and forced into sexual slavery by the Japanese government and its military has remained a “psychological thorn” in the Korea-Japan relations, a representative issue of the past that still needs to be dealt with.
Comfort stations were first installed by the Japanese navy as a preventive measure for mass rape that could result in venereal diseases and opposition of local people during the 1932 Shanghai Uprising. With a mass dispatch of its soldiers to China in the Sino-Japanese War starting in July 1937, the Japanese army began installing comfort stations in conquered areas, the number increasing after the Nanking Massacre of December 1937. Besides providing “mental consolation” to the soldiers, comfort stations were installed in order to pacify discontent and to stir up morale to prevent desertion from a war that dragged on. Their purpose also entailed the prevention of leaking classified information, done by “hiring” women from colonies who could not speak Japanese. From 1941 and during the course of the Asia-Pacific War, Japan installed comfort stations in their conquered territories in Southeast Asia and the Pacific. Regions where comfort stations were installed, as identified in official documents were areas invaded by Japan, i.e., Chosun, China, Hong Kong, Macau, and the Philippines. The number of comfort women is estimated to be between 80,000 and 100,000 with some estimations reaching 200,000, 80% of whom were Chosun women, while others also came from the Philippines, China, Taiwan, and the Netherlands.
The issue of comfort women was not easily discussed in public due to the nature of the crimes, but with the launching of the Korean Council for Women Drafted for Military Sexual Slavery by Japan in November 1990, the issue of comfort women was finally raised in earnest. Various activities continued among civil groups, the Korean government, and international human rights organizations; and the weekly Wednesday protests urging for the resolution of the issue before the Japanese Embassy in Korea hit the 1000 mark (1992.1.8 ~ 2011.12.7).
The Japanese government, however, denied the very existence of comfort women at first, until documents showing direct involvement of the Japanese government were uncovered in addition to the testimonies of the victims. On August 4, 1993, together with the second Government Report, it acknowledged the involvement of the Japanese military and authorities, as well as the forced drafting and fatigue duty; and Chief Cabinet Secretary Yohei Kono released a statement recognizing the grave violation of their human rights and expressing his apologies. However, Japan maintained that legal responsibility regarding these comfort women had been settled by the 1965 Claims Agreement and refused compensation.
3.4.1.2 Decision of the Constitutional Court
With regard to the interpretation of Article 2(1) of the Agreement, the Japanese government and judiciary were of the position that the reparations claim of Korean nationals including the comfort women against the state of Japan was encompassed by the Agreement in this case and, with its conclusion and implementation, were waived or compensation terminated. On the other hand, the Korean government declared through the decision of the joint government-civic committee of August 26, 2005 that issues concerning crimes against humanity such as that of the comfort women where state authorities were involved were not settled by the Agreement in this case and therefore, the Japanese government still bears liability. Consequently, the Court found that there was a difference between the two states in the interpretation of the Claims Agreement.
The Constitutional Court thus held that there clearly was a difference between Korea and Japan in the interpretation of Article 2(1) of the Agreement as to whether the reparations claim of the Comfort Women is included in the claim against Japan, and this fell under the meaning of “dispute” in Article 3.
Concerning the Dispute Resolution Procedure provided for in Article 3 of the Claims Agreement, the Court also found that these provisions, at the time of its conclusion, anticipated disputes in the interpretation and established dispute resolution principles and procedures, while setting the subject of these acts as the contracting states themselves and ruled that since the above dispute exists, the Respondent ought to resolve the issue through diplomatic channels pursuant to the dispute resolution procedures of Article 3; and it ought to submit the case to an arbitration panel after having attempted to reach settlement.
The core issue in the decision of the Constitutional Court was, in the midst of such dispute in interpretation, whether the nonfeasance of the Minister of Foreign Affairs in not pursuing such dispute resolution procedures provided for in Article 3 of the Claims Agreement violated the fundamental rights of the Petitioners and was therefore unconstitutional. In other words, the issue was, where there is a dispute over the interpretation of a treaty, whether the government had a specific constitutional duty to pursue the dispute resolution procedures provided for in the treaty to resolve the issue. There was disagreement among the Constitutional Court justices concerning this issue.
3.4.1.3 Majority Opinion
Concerning the “Duty of the Korean government to pursue dispute resolution procedures,” the majority opinion of the Constitutional Court stated that in light of the language of the Preamble, Article 2(2), and Article 10 of the Constitution and Article 3 of the Claims Agreement, the duty to take measures of dispute resolution pursuant to Article 3 is based on a constitutional demand to protect and to cooperate towards realizing the reparations claim of state nationals, whose human dignity and value were gravely violated by the systematic and continued criminal acts of the state of Japan. Without the performance of this duty, there is the possibility of Petitioners’ fundamental rights being gravely violated; thus, the Respondent’s duty to act is one deriving from the Constitution which is specifically provided for in the law.
The majority further held that the Korean government was also liable for the conclusion of the 1965 Claims Agreement, stating that though it had not done any acts to directly violate the fundamental rights of the comfort women, considering that the realization of the victims’ reparations claim against the state of Japan and the restoration of their human worth and value has come to the current state of impairment because it has not clarified the substance of the claims but used a vague term of “all claims” in concluding the Claims Agreement in this case, it cannot be denied that the Korean government has the specific duty to act in order to remove the reason for malfunction.
Also holding that diplomatic measures neglecting the reparations claims of the victims do not fall within the scope of performance of its duties, the Court found that having Japan acknowledge its wrongdoing and bear legal liability is an issue altogether different from the Korean government providing funds for social security; and thus the provision of partial living support for the victims cannot be considered satisfying the duty to act.
Lastly, the Constitutional Court declared that the harm to comfort women, having been caused by the enforced mobilization and sexual slavery by the state of Japan and its military, is a unique harm, for which other precedents cannot be found. It thus held that the reparations claim that the comfort women have against Japan is not only a property right guaranteed by the Constitution, but its realization also signifies the a posteriori restoration of their dignity and value, as well as their personal freedom that were ruthlessly and continuously violated.
The Court also noted the urgency of the need to remedy the violations of the fundamental right, as well as its possibility of remedy, as the current living comfort women have all advanced in age so that any further delay in time may make it impossible to restore this historical injustice and the violated human worth and value of the comfort women. In pursuing dispute resolution measures, the Court further stated that the government’s reasons of “possibility of developing into exhaustive legal arguments” or “diplomatic tension” are vague and abstract, and that it cannot be considered valid grounds for neglecting the remedy for the victims or a national interest that must be seriously considered.
3.4.1.4 Concurring Opinion of Justice Cho, Dae Hyeon
Justice Cho, Dae Hyeon added to the majority opinion, stating that in this situation where the victims’ claim to reparations was being hindered by the Claims Agreement, there definitely lies the duty to pursue diplomatic negotiations or arbitration procedures. Thus, the Court should also declare the Republic of Korea liable for complete compensation of the damage incurred by the Petitioners in being unable to exercise their reparations claim against the state of Japan. He reasoned that because it is highly unlikely that the obstacle to victims’ exercise of their reparations claim against Japan will be removed by diplomatic negotiations or arbitration procedures, and while there is sincere concern that it will give them false hope resulting in pains of frustration and despair, it must be even more emphasized that the Republic of Korea bears the duty to completely compensate them for their reparations claim against Japan. Furthermore, because the victims have all advanced in age, the state’s compensation measures for the victims must be urgently implemented.
3.4.1.5 Dissenting Opinion of Justices Lee, Kang-Kook; Min, Hyeong-Ki; and Lee, Dong-Heub
These three justices of the Constitutional Court, unlike those in the majority, held that they could not conclude under the wording of the Constitution and the Claims Agreement that “the Respondent has the duty to pursue dispute resolution measures under Article 3 of the Agreement in this case for the Petitioners.”
The dissenting opinion further stated that no matter how grave or urgent the state of violation of the fundamental rights of the Petitioners is in this case, the interpretation of the law, namely Articles 10 and 2(2) and the Preamble of the Constitution as well as Article 3 of the Claims Agreement, alone cannot generate the Korean government’s specific duty to pursue dispute resolution procedures nor the people’s right to petition for such a duty to act. Rather, the justices saw that the act of pursuing the dispute resolution procedure in Article 3 of the Agreement, in form and substance, a “discretionary act” of the two contracting parties. Thus, they held that the constitutional claim brought by the victims claiming that their fundamental rights were violated by the nonfeasance of the Korean government in failing to pursue the above dispute resolution procedures is illegitimate and must be rejected.
3.4.1.6 Significance of the Decision of the Constitutional Court
The majority’s decision declaring the failure to act as unconstitutional is significant in that it is the first decision of the judiciary to order a positive act on the part of the government, especially in that the representative issue of comfort women requires urgent legal compensation.
The Constitutional Court held, in confirming that an interpretative dispute existed between Korea and Japan regarding the 1965 Claims Agreement, that actively protecting the right to claims of the victims whose human dignity and value were gravely violated by the systematic and continued criminal acts of the state of Japan was a positive duty of the government as required by the Constitution. This appears to be an aggressive attempt of the judiciary to pressure the government that has shown a passive stance in resolving the issue of comfort women.
In the decision, in particular, the Court saw the harm to comfort women, having been caused by the enforced mobilization and sexual slavery by the state of Japan and its military as “a unique harm, for which other precedents cannot be found” and ordered an active resolution of the issue in consideration of the fact that the current living comfort women have all advanced in age, so that any further delay in time may make it impossible to restore this historical injustice and the violation of human worth and value of the Comfort Women by realizing their reparations claim. Considering that nine more of the victims have passed away in the nine months following the decision of the Court, leaving behind approximately 60 survivors among the 234 victims registered with the government, the decision certainly has great implications.
Further, regarding the claim that the Korean government has taken necessary measures for the resolution of the comfort women issue in deciding to give financial support and compensation to the victims on its own rather than to demand monetary reparations from Japan, and to demand of the Japanese government instead a more important and fundamental issue of a thorough fact-finding, formal apology and display of regret, implementation of proper education of history, etc., in order to continually raise the comfort women issue in international society, the Court found that the diplomatic and domestic measures of the Korean government towards Japan that neglected the victims’ right to claims of the victims could not be considered performance of its duties that are at issue in this case. The Court thus held that the specific role of the government in principle was to diplomatically demand reparations for the victims and, should the dispute be unresolved, to submit to arbitrations pursuant to Article 3 of the Claims Agreement.
This appears to be a forceful reminder from the judiciary regarding the extremely passive stance the government has shown in its attempts to diplomatically resolve the comfort women issue – a lukewarm attitude to avoid diplomatic friction with Japan, and ordering a more determined attitude towards the issue including submission to arbitration.
Thus, this decision of the Constitutional Court established an unprecedented principle of law, namely the “unconstitutionality of the Government’s failure to take diplomatic actions.” This decision is significant in that while criticizing the passive attitude of the government that failed to actively resolve the compensation issue for the comfort women, the Court also held for the first time that the government efforts to resolve the issue of right to claims for the war crime victims was a duty required by the Korean Constitution and thus provided a specific solution, thereby demonstrating an ambitious attitude of the judiciary towards historical issues.
3.4.1.7 Response of the Korean Government
Following the decision of the Constitutional Court, MOFA established a Task Force for the Resolution of Comfort Women Issue pursuant to the Korea-Japan Claims Agreement (MOFA-TF) and proposed a bilateral meeting for the resolution of the issue on September 15, 2011, all the while urging for sincere measures on the part of Japan by summoning Deputy Ambassador Kanehara. When the Japanese government did not respond, it proposed a bilateral meeting again in November. At the Korea-Japan summit meeting held in Tokyo on December 18, 2011, President Lee, Myung-Bak stated, “Korea and Japan must become sincere partners for mutual prosperity of the two countries and regional peace and security. To this end, the military comfort women issue which forms a stumbling block must first be addressed, and this takes true courage.” He also stated that “the comfort women issue is one that can immediately be resolved if perceived differently” and that “it is an emotional issue before a legal one,” urging Japan to consider the issue from a broader perspective that would help address other issues between the two countries. Prime Minister Yoshihiko Noda replied that the Japanese position concerning the comfort women issue was the same as before and that while “humanitarian efforts have been made, it would try to explore ideas from a humanitarian point of view.”
Through this process, it can be observed that the Comfort Women issue is no longer buried under the theory of “future-oriented Korea-Japan relations” but has now become part of the Korea-Japan diplomatic agenda. More specifically, according to recent media reports, the MOFA-TF is already discussing how to constitute the arbitration committee. Further progress has yet to be made, but the significance is clearly in line with the aggressive decision of the Constitutional Court, the long entrenched and neglected issue of comfort women is finally being discussed with specific purpose and direction.
3.4.2 The Korean Supreme Court Decision on Forced Labor
3.4.2.1 Background
During the Japanese occupation of Korea, Japan began to run short of labor in the production of munitions as it fought the Sino-Japanese War and the Pacific War. On July 8, 1939, it legislated and promulgated the National Mobilization Law and in 1942 legislated and implemented the provision of mobilizing the Chosun people in order to procure a labor force from all regions of the Korean Peninsula through official arrangements. When the shortage of manpower and supplies continued, it implemented a de facto conscription of the Chosun civilian people under National Conscription Order beginning October 1944.
The victims of forced labor were either forcefully sent over to Japan with other conscripts pursuant to a conscription notice or were sent through their applications for employment in Japanese munitions company under deceitful job placements that guaranteed their return after their employment and training. These victims were then placed in companies such as Mitsubishi Heavy Industries and Nippon Steel Corporation, where they worked in three 8 hour shifts with one to two limited outings per month. Once their daily tasks were complete, they ate and slept at the quarters provided by the companies, where the quality and the amount of food provisions were severely insufficient and sleeping quarters cramped.
These quarters were also surrounded by barbed-wire fences that limited entry; and strict surveillance by military police during both working hours and holidays prevented the liberty of everyday life. The conscripts were subject to de facto forced labor, as any correspondence with family back in Korea was screened and censored and thus limited in content, and those caught escaping were severely beaten, and wages were not properly paid out.
When the Pacific War reached its peak and munitions facilities in Japan were destroyed by US military airstrikes, some of the conscripts also perished at those facilities, and still others were exposed to radiation caused by the atomic bomb dropped on Hiroshima.
After liberation, compensation for forced laborers became an issue, and the governments of Korea and Japan discussed normalization of diplomatic relations and post-war compensation beginning in late 1952. Finally, on June 22, 1965, Treaty on Basic Relations between the Republic of Korea and Japan for the Normalization of Diplomatic Relations was concluded together with its annexed agreement of Agreement between the Republic of Korea and Japan Concerning the Settlement of Problems in Regard to Property and Claims and Economic Cooperation (Claims Agreement). Through this Claims Agreement, Japan agreed to provide Korea with 300 million dollars in grants over a period of 10 years and 200 million dollars in loans while confirming that the problem of claims was completely and finally settled.
According to the Agreed Minutes drafted during this process, the scope of the “Outline of the Property and Claims Settlement Agreement between Korea and Japan (8 items)” included the restitution of claims of Korean organizations or natural persons against Japan and its people of their government bonds, public bonds, Japanese bank notes, outstanding receivables of drafted Koreans and other claims. In other words, the Korean government included the compensation for the conscripted workers in its negotiation of the Claims Agreement with Japan; and the Japanese government thus claimed that all rights to claims of the victims of forced labor was extinguished pursuant to the Agreement.
3.4.2.2 Suit against Mitsubishi Heavy Industries
On December 11, 1995, the victims of forced labor at Mitsubishi Heavy Industries filed a suit against the Japanese government and Mitsubishi Heavy Industries at the Hiroshima District Court for unlawful acts and for violations of international law, demanding payment of outstanding wages, damages, and compensation.
The Hiroshima District Court found, concerning the conscription circumstances of the victims, that “the conscription of the Plaintiffs under the law at the time cannot be an unlawful act in itself, nor can the process of conscription pursuant to the law be called a violation of the law” and thus rejected the claim of forced conscription and forced labor made by the victims. While the court did recognize some of the claims of the victims as being true such as the Japanese munitions companies unlawfully driving them to forced labor unlike their prior explanations, failure to pay out wages properly, failure to implement safety precautions, it still held that the right to request compensation for such damages had already lapsed since the statute of limitations had expired for the right to claim unpaid wages and, even if it had not, the rights were extinguished by the 1965 Claims Agreement between Korea and Japan.
The victims appealed to the Hiroshima High Court and while the case was still in progress, filed the same suit against Mitsubishi Heavy Industries before the Busan District Court of Korea on May 1, 2000. When the Hiroshima High Court also dismissed the case on January 19, 2005, the victims filed an appeal again, this time to the highest court of Japan.
On February 2, 2007, the Busan District Court ruled similarly, stating that the victims’ right to compensation for damages and payment of wages was extinguished. The Supreme Court of Japan also dismissed the victims’ case on November 1, 2007, thereby concluding the proceedings in Japan. Then, the victims appealed the decision of the district court to the Busan High Court, but the same dismissed the appeal on February 3, 2009 for reason of res judicata following the final decision in Japan.
3.4.2.3 Suit against (New) Nippon Steel Corporation
On December 24, 1997, the victims of forced labor at Nippon Steel Corporation filed a suit against the Japanese government and the New Nippon Steel Corporation at the Osaka District Court for unlawful acts and for violations of international law, demanding payment of outstanding wages, damages, and compensation.
The Osaka District Court dismissed the case on March 27, 2001 for the same reasons as the Hiroshima District Court. It further added that Nippon Steel Corporation for which the victims provided service at the time was dissolved pursuant to Japan’s Emergency Corporate Accounting Measures Law and Corporation Reconstruction and Maintenance Law and ceased to exist. It held that the current New Nippon Steel Corporation is of independent legal personality from that of the previous Nippon Steel Corporation, on which legal responsibility does not transfer; and even if it did, the rights of the victims were extinguished pursuant to the 1965 Claims Agreement and thus declared the Plaintiffs’ loss. The victims appealed to the Osaka High Court, but the appeal was dismissed on November 19, 2002, and the entire proceedings came to an end on October 9, 2003 when the Supreme Court rejected the case.
When the case closed in Japan, the victims filed the same claim before the Seoul Central District Court of Korea on February 28, 2005 against Nippon Steel Corporation. However, the Seoul Central District Court also dismissed the case on April 3, 2008 for the reason of res judicata pursuant to the final decision of Japanese courts. The victims appealed to Seoul High Court but were again denied for the same reason on July 16, 2009.
3.4.2.4 Decision of the Supreme Court
The Supreme Court stated, “In determining international jurisdiction, we must follow the basic principles of equity for both parties, fairness of trial, speed, and economy. More specifically, not only must individual interests be considered such as fairness, convenience and foreseeability for the parties to the litigation, but also state or judicial considerations of fairness, speed, efficiency, and effectiveness of trial. Among these various considerations, determining which interests need protection must be rationally determined by considering each individual case, practical relevance of the party to the forum, and the relevance between the forum and the issue at dispute as objective criteria.” Based on this premise, the Court stated, “The damages claim resulting from unlawful acts in this case arises from the enforced mobilization of the previous Nippon Steel Corporation, together with the state of Japan, for the purpose of forced labor, because the act of putting such mobilized persons to forced labor is an unlawful act for which the Plaintiff is claiming that the Defendant bears the liabilities of the previous Nippon Steel Corporation. In consideration of the fact that Korea, together with Japan, was the locus delicti where part of the acts in a series of unlawful acts that occurred, the Plaintiff victims reside in Korea, and that the issues are intimately related to historical and political changes,” the Court held that it had jurisdiction over the case because Korea had de facto connection with the parties and issues of this case.
3.4.2.5 Decision Concerning the Extinction of Rights Pursuant to the 1965 Korea-Japan Claims Agreement
In its decision, the Supreme Court found that the “1965 Claims Agreement was aimed not towards compensating for Japanese colonization but towards resolving the financial and civil debt/credit relationship between Korea and Japan based on Article 4 of the San Francisco Peace Treaty. The funds for economic cooperation, granted to the Korean government by the Japanese government pursuant to Article 1 of the Claims Agreement, neither resolves the issue of rights based on Article 2 nor have the effect of legal consideration. In the process of negotiating the Claims Agreement, the Japanese government fundamentally denied legal compensation for forced labor by refusing to acknowledge the illegality of colonization; and the two governments were unable to reach an agreement concerning the nature of Japan’s rule over the Korean Peninsula. In this situation, it is difficult to conclude that the right to compensation for crimes against humanity that state power was directly involved in or crimes directly connected to colonization was included in the scope of application of the Claims Agreement. Therefore, the individual rights to claim compensation for forced labor were not extinguished by the Claims Agreement, nor were Korea’s rights to diplomatic protection of its nationals.”
Further, the Supreme Court held, “For a state to be able to conclude a treaty which does not stop at abandoning diplomatic protection but goes on to directly extinguish the rights to claims of its nationals that have independent legal personality different from that of the state, without their consent, contradicts contemporary legal principles. Even if it were to be permissible under international law for a state to extinguish the rights of its nationals through treaties, considering that a state and its nationals are different legal persons, the people’s rights cannot be deemed to have been extinguished unless specifically provided for in the treaty. Considering that there is not enough evidence to conclude that there was an agreement between the two governments regarding the extinguishing of individual rights to claims in the 1965 Claims Agreement, and that Japan’s Property Measures Law – extinguishing the rights of Korean people against Japan and its people – enacted immediately following the conclusion of the Claims Agreement can only be understood on the premise that the Claims Agreement alone could not have extinguished the individual rights of the Korean people, even if the rights of the victims were included in the scope of application of the Claims Agreement, the individual rights themselves cannot be deemed to have been automatically extinguished by the Agreement.” The Supreme Court thus vacated the decision of the High Court and remanded the case for retrial.
3.4.2.6 Significance of the Supreme Court Decision
Korea has been greatly influenced by Japan since the Japanese occupation up to present in its legal system, judicial administration, interpretation of the law and application of legal reasoning. Thus, there have been many instances in which the decisions of the Japanese courts have been acted as precedents accepted without question. Likewise in this case, the district and high courts accepted the effect of the decision of the Japanese courts because they supposedly did not violate the good morals and social order of Korea and dismissed the petitions of the victims.
The Supreme Court decision, however, is significant in that it aggressively and independently recognized the compensation rights of the victims based on the Preamble of the Constitution and other related laws concerning the issues already judged and decided in Japanese courts. It declared that the Preamble of the founding Constitution and the current Constitution of the Republic of Korea “uphold[s] the cause of the Provisional Republic of Korea Government born of the Independence Movement of 1 March 1919” and that Japan’s rule over the Korean Peninsula during Japanese Occupation Period was nothing more than an unlawful occupation by force from a normative perspective. The Supreme Court holding that the effect of the decisions of the Japanese courts premised on the legality of Japan’s enforced annexation of Korea could not be recognized, as they squarely contravene with the Constitution of Korea, is significant as the aggressive and independent attitude of the judiciary concerning historical issues.
In judging the 1965 Claims Agreement in its decision, the Supreme Court restricted the Claims Agreement to one that resolved the financial and civil debt/credit relationship between Korea and Japan and found that the right to compensation for crimes against humanity that that the Japanese government was directly involved in or crimes directly connected to colonization was not included in the scope of application of the Claims Agreement. It thus held that neither the individual claims were extinguished nor diplomatic protection of Korea was abandoned. Such a holding squarely contradicts the official position of the Japanese government that claims that all legal compensation, including individual claims, was fulfilled by the 1965 Claims Agreement.
The Supreme Court decision, in particular, is a logical extension of the official position of the Korean government but takes a step further in its attitude towards the forced labor victims. While the Korean government had declared in 2005 through the decision of joint government-civic committee that compensation issues concerning comfort women, atomic bomb victims, and nationals in Sakhalin were not settled by the Claims Agreement, it had failed to similarly recognize the rights of forced labor victims. Rather, because such were not clearly recognized as forced labor victims, their claims were assumed to have been settled by the Claims Agreement. This was because the outline of the eight items indicated in the Agreed Minutes to the Agreement included the restitution of the claims of Korean persons against Japan and its people of the outstanding receivables of the conscripted Koreans and other claims.
In spite of this, the Supreme Court stated “Even if the right to claims was indeed included in the scope of application of the Claims Agreement, individual rights themselves cannot be deemed to have been extinguished by the Claims Agreement alone. Rather, the state’s diplomatic protection of that right is abandoned by the Claims Agreement, so that even if such a right were to be extinguished within Japan due to domestic measures taken by Japan, the Korean government would no longer have the means to protect this diplomatically. Therefore, the Agreement cannot restrict the victims’ exercise of rights in the Republic of Korea.”
War crimes committed by the Japanese government during the occupation are certainly not limited to that of this case. According to a survey conducted by the Committee for the Survey and Support of Forced Labor Victims and Casualties Abroad during Anti-Japan Resistance (Forced Labor Victim Survey Committee) under the Prime Minister, those recognized as victims of forced labor pursuant to the committee’s analysis numbered 147,893 as of May 11, 2012. Their additional suits have already begun their countdown. Aside from forced labor, comfort women and victims of forced conscription into the Japanese military who they were victimized as soldiers or civilian employees, have yet to be properly compensated. Through the Supreme Court decision, compensation suits of war crime victims other than those engaged in forced labor can be actively reviewed.
Furthermore, similar issues can also be raised in other East Asian countries that were illegally occupied by Japan. If compensation for crimes committed during the Japanese occupation period would not be recognized up to present time pursuant to the logic of the government and courts of the state of Japan that caused harm, this Supreme Court decision expressly criticizes the decisions of the Japanese government and courts based on Japanese laws while also providing a reasoning that makes compensation possible for other victims. Therefore, this decision will also likely be viewed for its significance among other East Asian states.
3.4.2.7 Conclusion
Korea and Japan, having experienced a history of Japanese occupation in a relationship as an occupying power and its colony, cannot be free from the important historical issues of the past. From territorial disputes to historical understanding, cultural differences and economic cooperation, there are many challenges yet to be overcome. Some of these challenges can be peacefully overcome through diplomatic efforts from a future-oriented perspective on the part of both countries.
However, as for war crimes committed during the Japanese occupation period, avoiding legal responsibility will not settle the past as long as specific identifiable victims exist. As living witnesses and victims of history, sufficient compensation and a sincere apology would be the proper way to resolve the issue, and efforts toward this end would be the duty and reason for the existence of the state.
The Korean government cannot be free from criticism concerning their passive attitude towards the representative historical issues of comfort women and forced labor. More specifically, in negotiating post-war compensation following liberation, it hastily used an all-inclusive term “all claims” in concluding the 1965 Claims Agreement, thereby creating an obstacle to the realization of the victims’ rights to claims. It also neglected the victims for a long time without having taken initiative to remove these obstacles. In the meantime, many of the victims have passed away without having received compensation or an apology. Therefore, the intervention of the judiciary in these historical issues through affirmative decisions holds great significance.
Of course, there are concerns for the possible adverse effects that such an aggressive intervention by the judiciary may have on diplomatic relations. In order to resolve the complex issues within Korea-Japan relations, there needs to be a broad range of negotiations through various means; but with the severely limiting aspect of judicial intervention may make resolution even more difficult. According to recent media reports, there has been some progress in the matter, with the Japanese government directly issuing apologies concerning the comfort women issue through its Prime Minister, as well as talk about considering the possibility of compensating the victims directly. However, the firm position taken by the Korean government concerning comfort women pursuant to the Constitutional Court decision has made it difficult to find a point of contact, thereby vitiating these plans.
A further issue can be raised as to whether a treaty concluded between states as parties pursuant to international law can be invalidated ex post facto through the decision of its judiciary. As raised by those opposing the unconstitutionality decision, although one can understand the desperation of the victims, forcing a diplomatic resolution by overstepping previous constitutional interpretations does not adhere to the limits of the judiciary within the framework of separation of powers.
However, separation of powers alone cannot be an autotelic value in itself. Also, considering that the fundamental purpose of the separation of powers is to affirmatively guarantee the basic rights of the people, the aggressive role of the judiciary in guaranteeing the people’s rights coincides with the substance of the principle of separation of powers. Furthermore, ruminating on the fact that the resolution of historical issues has been left to the executive branch alone and that the promotion of such issues have progressed and regressed repeatedly based on the will of the head of that branch of government, the positive implications of an active role of the judiciary in its recent decisions are great.
3.5 The Status of the Provisional Government of the Republic of Korea under International Law and Continuity of the Republic of Korea as a Sovereign State
The Choseon Dynasty, founded in 1392 succeeding the Goryeo Empire, changed its name to the Korean Empire during the years of King Gojong’s rein. Gojong, the 26th King of Choseon, ascended the throne as the first Emperor of the Korean Empire on October 12, 1897. According to the Constitution of the Korean Empire (‘Daehan Jeguk’ in Korean) enacted on August 17, 1899, the Korean Empire identified itself as an absolute monarchy.
The Korean Empire, as a victim of Japan’s aggressive imperial policy, became a protectorate of Japan when it was stripped of its diplomatic sovereignty in 1905 and annexed by so-called “Annexation Treaty,” whose effects under international law is debated.
Influenced by Wilson’s concept of national self-determination, there was a widespread of the Independence Movement on March 1, 1911, eventually leading to the establishment on several provisional governments in and outside Korea. Among such provisional governments, one in Shanghai, China was declared as the Republic of Korea, a democratic government, by the Provisional Charter promulgated on April 11, 1919.
Since then, several provisional governments were unified as the Provisional Government of the Republic of Korea in Shanghai, China on September 11, 1911. On the same date, the Provisional Constitution, which included more detailed provisions based on the Provisional Charter of April 11, was promulgated. The current Constitution of the Republic of Korea stipulates in its preamble that the Republic of Korea upholds the cause of the Provisional Republic Korea Government born of the March 1st Independence Movement of 1911.
After that, the Republic of Korea was liberated from the Japanese rule by Japan’s unconditional surrender and the North of the 38th parallel was occupied by Russia and the south by the United States. After going through complicated political situations, the Republic of Korea was finally established on August 15, 1948 in the South of the 38th parallel while the Democratic People’s Republic of Korea was established in the North on September 9, 1948.
The issue regarding the identity of the Republic of Korea with the previous government dates back to the time of establishment of the Republic of Korea as explained above. If Japan’s annexation of Korea in 1910 was valid under international law, it can be seen that the Korean Empire ceased to exist as a state in 1910 and the Republic of Korea was established as a new country based on the Provisional Government of Republic of Korea as its government. Another way to look at this issue is that the Republic of Korea was established as a new independent state on August 15, 1948.
On the other hand, in case the annexation treaty of 1910 was invalid as Korea claims, a state existed in the Korean Peninsula during the period of the Japanese rule over Korea. In this scenario, there are two possibilities in understanding the relations between the Korean Empire and the Republic of Korea established based on the Provisional Government of Republic of Korea.
One is that the Republic of Korea can be understood as a state that changed its name and identity. In such case, the Korean Empire and the Republic of Korea are the same state under international law. Another view is to regard the Republic of Korea as a new state unrelated to the Korean Empire, which raises the issue of state succession between the Republic of Korea and the Korean Empire.
In case one understands or claims that the present Republic of Korea is the state established in 1920 as a result of the March 1st Independent Movement, and not the newly established independent state along with the new government of 1948, the Republic of Korea as of 1919 becomes a questionable entity. In other words, the question is raised whether the Republic of Korea in 1919 had all elements for establishing a state – a territory, people, government and capacity to maintain diplomatic relations. Among them, the most crucial issue is whether the Provisional Government at that time can be regarded as a government under international law.
The Provisional Government of the Republic of Korea established in 1919 engaged in various diplomatic activities with the United States and European countries, and also military activities toward Japan, but it is difficult to say that the criteria of effectiveness as a government was fulfilled as required under traditional international law.
While there exists a record that the provisional governments were recognized as a government such as the French government in exile as well as by Estonia and the Soviet Union, it is unclear whether such records are fully substantiated. In this context, it can be inferred that the Provisional Government of Korea was not generally recognized as a government by the international community, which makes it difficult to theoretically claim the continuity of the Republic of Korea from the Korean Empire.
The Republic of Korea of today makes it clear through the preamble of its Constitution and other state practices that it identifies as a successor of the Republic of Korea established in 1919. There is no specific provision in the Korean Constitution mentioning the continuity between the Republic of Korea and the Korean Empire.
Despite this, Korea consistently asserts the invalidity of the annexation treaty of 1910, and this attitude has been maintained during the talks for the establishment of diplomatic relations between Korea and Japan. Thus, it can be understood that Korea takes a position that the Republic of Korea is identified as a successor of the Korean Empire.
The Korean government regards the following practices of international community as recognizing the continuity between the Republic of Korea and the Korean Empire. First of all, the secretariat of the Universal Postal Union, which the Korean Empire joined on January 1, 1900, notified the Republic of Korea of the restoration of its membership of the Universal Postal Union as of December 17, 1949.
Secondly, in 1903, the Korean Empire joined the first Red Cross Convention adopted on August 22, 1864. Switzerland, as a depository, viewed that Geneva Convention of 1864 was being applied to Korea with other signatories until 1966 when Republic of Korea joined the first Geneva Convention of 1949.
The Korean government took a measure of confirming that the following three treaties to which the Korean Empire was a signatory in 1987 are effective for the Republic of Korea: Convention for the Exemption of Hospital Ships, in Time of War, from the Payment of All Dues and Taxes Imposed for the Benefit of the State, Convention with Respect to the Laws and Customs of War on Land (Hague II), and Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864 (Hague III). In relation to this, the Dutch government, the depository of the first two treaties aforementioned, treated the Republic of Korea as signatory by informing it of the treaty amendments in February, 1986.
3.6 From the Wartime Declarations to the 1951 San Francisco Peace Treaty
3.6.1 The Wartime Declarations
There was general agreement that the San Francisco Peace Treaty could only endorse the territorial agreements made at Cairo, Yalta, and Potsdam. In fact, the territorial dispositions of the San Francisco Peace Treaty followed the terms of these agreements and US studies and policy decisions relating to the implementation of these agreements.
The pertinent provisions of these agreements are: “Japan will … be expelled from all other territories which she has taken by violence and greed” in the Cairo Declaration on December 1, 1943; “The Kuril islands shall be handed over to the Soviet Union” in the Yalta Agreement of February 11, 1945; “Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and such minor islands as we determine” in the Potsdam Proclamation of July 26, 1945; and “[Japan] … accepts the provisions set forth in the [Potsdam Proclamation]” in the Japanese government’s statement accepting US terms of surrender, dated August 14, 1945.
The Cairo Declaration referred specifically only to “the territories Japan has stolen from the Chinese, such as Manchuria, Formosa and the Pescadores,” although it did add “Japan will also be expelled from all other territories which she has taken by violence and greed.” As to the words of the Cairo Declaration, there were harsh responses from Japan, for example, “the expulsion of Japan from the territory which she took by violence and greed is difficult for the Japanese to understand, since all countries have acquired additional territory in such a way.”
3.6.2 Interpretation of the Supreme Commander for the Allied Powers’ Instructions
The General Headquarters of the Supreme Commander for the Allied Powers gave an instruction No. 677 entitled “Governmental and Administrative Separation of Certain Outlying Areas from Japan” on January 29, 1946, which stated, “The Imperial Japanese Government is directed to cease exercising, or attempting to exercise, governmental or administrative authority over any area outside of Japan, or over any government officials and employees or any other persons within such areas.” It further stated, “For the purpose of this directive, Japan is defined to include the four main islands of Japan (Hokkaido, Honshu, Kyushu and Shikoku) and the approximately 1000 smaller adjacent islands … and excluding … (c) the Kurile (Chishima) Islands, the Habomai (Hapomaze) Island Group (including Suisho, Yuri, Aki-yuri, Shibotsu and Taraku Islands) and Shikotan Island.”
This instruction has been considered one of the significant legal instruments deciding the destiny of the Kurile Islands especially favoring Russia. Russia continuously maintains that SCAPIN 677 decreed the cessation of Japanese administration over various non-adjacent territories, including the Kurile Islands, and this is a strong indication of what the Allied Powers desired. In response to this Russian claim, Japan argues that SCAPIN 677 suspended only Japanese administration of various island areas, including the Kurile Islands, and it did not preclude Japan from exercising sovereignty over this area permanently.
The United States recognized that the question of international sovereignty was outside SCAP’s authority. As SCAPIN 677 itself stated, “Nothing in this directive shall be construed as an indication of Allied policy relating to the ultimate determination of the minor islands referred to in Article 8 of the Potsdam Declaration.” The United States also pointed out that in all SCAPINs to the Japanese Government regarding authorization of areas for Japanese fishing and whaling which were established under SCAP, there appeared a statement providing essentially that “the present authorization is not an expression of Allied policy relative to ultimate determination of national jurisdiction, international boundaries or fishing rights in the area concerned or in any other area.”
Therefore, it was the US position that SCAPIN 677 was an operational directive to the Japanese Government tentative in character and that specifically stated it was not an Allied policy determination of Japanese territory. In the same vein, the SCAP General Order No. 1 merely stated that Japanese troops in Sakhalin and the Kurile Archipelago should surrender to the Commander of the Soviet Forces Far East, and it did not and was not intended to touch upon the final disposition of these islands.
There is also, however, a report, titled “Summaries of FEC Policy Statements and Certain SCAP Directives to the Japanese Government, with Proposals for Disposition in the Peace Settlement with Japan,” regarding the relationship between territorial questions and SCAPIN 677, which “defines present area of Japanese jurisdiction and provides a starting point for decisions on details of territorial adjustments.”
SCAPIN 677 further stated, “For the purpose of this directive, Japan is defined to include the four main islands of Japan … and the approximately 1,000 smaller adjacent islands … and excluding … Liancourt Rocks….” This instruction is also considered one of the significant legal instruments that could decide the destiny of the Dokdo in favor of Korea. Korea continuously maintains that SCAPIN 677 decreed the cessation of Japanese administration over various non-adjacent territories, including the Dokdo, and this is a strong indication of what the Allied Powers desired to remove from Japanese jurisdiction. In response to this Korean claim, Japan argues that SCAPIN 677 suspended only Japanese administration of the various island areas, including the Dokdo, and it did not preclude Japan from exercising sovereignty over this area permanently, as the United States also opined in the same vein.
A later instruction, SCAPIN 1778 of September 16, 1947, designated the islets as a bombing range for the Far East Air Force and further provided that use of the range would be made only after notification through Japanese civil authorities to the inhabitants of the Oki Islands and certain ports on Western Honshu. The action of the US-Japan Joint Committee in designating these rocks as a facility of the Japanese Government is therefore justified according to Japanese interpretation. Again, SCAPIN 677 did not purport to express Allied policy as to the “ultimate determination of national jurisdiction, international boundaries or fishing rights in the area concerned or in any other area.” SCAPIN 1033 of June 22, 1946, also provided that “Japanese vessels or personnel thereof will not approach closer than twelve (12) miles to Takeshima (37 [degrees] 15<prime> North Latitude, 131 [degrees] 53<prime> East Longitude) nor have any contact with said island…. The present authorization is not an expression of allied policy relative to ultimate determination of national jurisdiction, international boundaries or fishing rights in the area concerned or in any other area.”
3.6.3 The 1951 San Francisco Peace Treaty
The San Francisco Peace Treaty, signed on 8 September 1951, provided the terms for terminating the state of war between Japan and the Allied Powers, to “settle questions still outstanding as a result of the existence of a state of war between them,” such as the status of the minor islands that were under Japanese sovereignty at the end of the war. In Article 2(a), “Japan, recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet [Ullungdo].” Dokdo was not mentioned in the Treaty, but Korean commentators are quick to point out that “while the Peace Treaty only specified three among the total of 3,215 islands [belonging to Korea], they were listed merely to illustrate the status of the remaining outlying islands.” Many other Korean islands are also not explicitly mentioned.
The intensity of the Korean War fighting helps explain why recognizing Korea’s sovereignty over Dokdo might have seemed to be inconsistent with the strategic interests of the United States, but it is less clear why the United States declined to recognize the sovereignty of Japan over the islets. Why did the drafters of the San Francisco Peace Treaty choose to omit any reference to Dokdo when the inevitable result would be decades of international dispute between Korea and Japan?
Despite numerous attempts made during the drafting process to convince the United States to define Dokdo as Korean territory, US diplomats ultimately declined Korea’s request. US leaders also excluded Korean delegates from the Peace Treaty signing ceremony in San Francisco in 1951, thus depriving Korea of its final chance to argue its position.
The United States had originally intended to invite Korea to the signing ceremony as a means of extending international legitimacy to the newly created Republic of Korea, but on 19 July 1951, Dulles met the Korean ambassador to the United States and reversed his position. Dulles claimed that Korea could not be a signatory to the treaty because “only those nations in a state of war with Japan and which were signatories of the United Nations Declaration of 1942 would sign the treaty.”
Dulles probably had some other motive for excluding Korea, because Vietnam, Laos and other nations that were not signatories of the 1942 UN Declaration were included in the ceremony. John Price has suggested that the United States wanted to exclude Koreans living in Japan from the property benefits that allied civilians would receive under the treaty, explaining that “Dulles suggested that many of these Koreans were undesirables, being in many cases from North Korea and constituting a center for Communist agitation in Japan.” Because of their desire to expel these Koreans from Japan, the United States and Japan agreed to prevent Korean delegates from signing the treaty.
A review of this early Cold War history reveals that the US approach towards Dokdo’s sovereignty was based on geopolitical considerations rather than on an examination of Dokdo’s history. US diplomats did not want to shut the door on the possibility of using Dokdo for US military needs and had a substantial interest in having the San Francisco Peace Treaty signed quickly, to limit the possibility that Japan or Korea might fall under the Communist sphere of influence. These diplomats may also have realized the value of creating a buffer zone as well as a wedge issue between Japan and Korea, for insurance in the event of the collapse of the Korean government.
The decision to exclude any reference to Dokdo in the territorial clause of the San Francisco Peace Treaty was not based on an assessment of historical claims to Dokdo, but rather on the dynamics and tension of the emerging Cold War. Because these geopolitical considerations dominated the drafting of the ultimate text of the Treaty, and because the final Treaty text makes no reference to Dokdo, the Treaty cannot be viewed as a factor in determining sovereignty over Dokdo.
Also significant is the recognition that the final text of the Treaty was not designed to be comprehensive, and was not intended to resolve all disputes, but was written in a short form in order to enable Japan to consolidate itself against Communist threats, and to allow the United States to focus on the defense of the Korean peninsula from the Communist military activity. The omission of any reference to Dokdo cannot, therefore, be viewed as creating an ambiguity, because the Treaty did not purport to address all controversies.
3.7 Events Subsequent to the 1951 San Francisco Peace Treaty
Because the textual clause of the Peace Treaty makes no mention of Dokdo, the events that followed in the years after its signing are not “interpretive” evidence under Articles 32 and 33 of the Vienna Convention on the Law of Treaties. But these subsequent events are still of interest with regard to Dokdo’s sovereignty, and the decisive and consistent actions taken by Korea to consolidate its possession of Dokdo certainly support Korea’s claim of sovereignty over these islets.
The status of Dokdo remained controversial after the Peace Treaty was signed in September 1951. Five months later, on 18 January 1952, Korean President Syngman Rhee issued a presidential proclamation that created the “Peace Line,” a territorial boundary averaging 60 miles off the coast of Korea, which explicitly identified Dokdo as a Korean territory. Japan protested this Peace Line and declared that it did not recognize Korea’s claim to Dokdo.
Several months later, Japan issued a tacit protest through the US-Japan Security Treaty, which had designated Dokdo as an area for US military training. After receiving a similar protest from the Korean government, the US military announced on 27 February 1953 that Dokdo would be excluded from its training area. The United States sought to avoid any direct involvement in this issue, but did publicize Dean Rusk’s 10 August 1951 Note to the Korean Ambassador in Washington, DC, when the question was raised in 1953, and stated then that “[w]e have publicly declared our view that this Island belongs to Japan, but no one in Japan or elsewhere seriously expects US to take military action under the [US-Japan] Security Treaty to reclaim this Island for Japan.” In May 1954, citizens of both Japan and Korea, under the protection of patrol boats from their respective governments, landed on Dokdo and proceeded to erect signs claiming sovereignty while dismantling the signs erected by the other nation.
3.7.1 1954–1965
After Korea erected a lighthouse on Dokdo in August 1954, the nature of the situation changed. With Korea physically possessing the island, Japan increased its mode of protest and in September 1954 proposed that the matter be submitted to the “authoritative” International Court of Justice (ICJ), but Korea rejected this proposal.
Between 1952 and 1960, Japan sent 24 notes to Korea on the Dokdo matter and Korea responded with 18 notes back to Japan. The matter was also raised again through diplomatic channels during the protracted negotiations that led to the signing of the 1965 Korea-Japan Treaty, but because of Korean resistance on this issue, from 1957 when the talks were resumed until the signing in 1965, the Dokdo problem was never adopted as an official agenda item, to be recorded in the minutes. There is absolutely no direct reference to Dokdo in the various documents of the Korea-Japan Treaty signed in 1965. Originally, Japan thought of writing down the problem in the Treaty or failing that, as planned in advance, in the instruments to be exchanged agreeing to take the case to the ICJ. However, the Korean side rejected both plans by arguing that Dokdo could not become an agenda item as it was Korea’s inherent territory.
Korean Ambassador Jae-hee Oh, who was involved in these negotiations, explained that on the day scheduled for the signing of the 1965 Normalization Treaty, Japan offered language to be inserted in the dispute-resolution protocol that would say “Disputes such as Dokdo/Takeshima shall be resolved through a conciliation procedure.” The Korean negotiators refused to consider this insertion. After an awkward hour had passed, the Japanese Prime Minister agreed to take out the reference to Dokdo, and the treaty was then signed.
According to the Japanese view of the negotiations, the general language that remained in the agreement covering all disputes, which says that they are to be resolved “through arbitration in accordance with the procedure agreeable to both countries,” preserves their position on Dokdo. But Korea has rejected the idea that Dokdo is covered by this side agreement, referring to this notion as “a far-fetched construction of the instruments,” with Korean Foreign Minister Lee Dong-won stating that “since Takeshima/Tokdo was not an object of dispute, it could not be covered by the exchange document.” Korea’s position has always been that Dokdo is inherent Korean territory, and thus that the island cannot be viewed as an issue either in the treaty or before the ICJ.
3.7.2 Since 1965
In the decades that followed the 1965 Normalization Treaty, “Korea and Japan sought to avoid the controversial issue of Dokdo, with each side maintaining its own position on the matter.” Japan stepped up its rhetoric in the mid-1990s, claiming an exclusive economic zone in 1996 and asserting its claim to Dokdo repeatedly. In 1999, Korea and Japan established a provisional fishing zone in the East Sea, which includes Dokdo, but this agreement was unpopular in Korea, and the Korean government “has unilaterally refused to promote the joint regulatory measures that had been agreed upon.” On 26 February 2005, Japan’s Shimane Prefecture promulgated “Takeshima Day,” further exacerbating relations between the two countries. But Korea’s possession of Dokdo has continued and has been unchallenged except through verbal protests. This long period of effective occupation, especially when coupled with Korea’s strong historical claim to Dokdo, provides substantial support for Korea’s claim of sovereignty over these islets.
Article 32 of the Vienna Convention on the Law of Treaties discourages the use of the negotiating history (travaux preparatoires) of a treaty to provide meaning to the Treaty unless the treaty’s language “(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable,” but Article 31(3) allows evidence of the subsequent actions and agreements of the parties to be examined to provide guidance regarding the understanding of the treaty’s terms. Relevant subsequent activities would seem to include the actions of Korea in gaining possession of Dokdo by 1954, the protests of Japan since then and the events surrounding the 1965 Normalization Treaty. The consistent approach of the ICJ and other international tribunals examining sovereignty disputes has been to focus on actual demonstrations of effective control, particularly in the past century. Korea’s possession since the early 1950s would provide substantial support for Korea’s claim to sovereignty to Dokdo. Japan’s protests provide some support for Japan’s claim, but a tribunal adjudicating this matter would have to determine whether they are adequate. Japan’s willingness to enter into the 1965 Normalization Treaty with Korea without any reference to Dokdo would serve to undercut Japan’s claim and could be viewed as having acquiesced to Korea’s sovereignty, particularly if a tribunal were to contrast this action by Japan with its refusal to normalize relations with Russia until the Northern Territories dispute is resolved.
The formal rules of interpretation found in Articles 31 and 32 of the Vienna Convention on the Law of Treaties thus appear to support Korea’s position on Dokdo. The 1951 San Francisco Peace Treaty makes no mention of Dokdo, and so an international tribunal would likely take that on face value, and conclude that the Peace Treaty has no relevance to Dokdo. If, on the other hand, the tribunal were to conclude that the Peace Treaty’s failure to mention Dokdo creates an “ambiguity,” then the tribunal could examine the travaux preparatoires, in which case it would find further ambiguity in the conflicting drafts and notes pointing in different directions. Perhaps the most important pre-1951 document is SCAPIN No. 677, which separated Dokdo from Japan, as well as SCAPIN No. 1778, authorizing bombing operations in and around the island. As one Korean scholar has explained, “because SCAPIN No. 677 specified that Dokdo was Korean territory, the Treaty of Peace with Japan would have had to explicitly overturn this stipulation in order to supersede the original designation.”
If a tribunal were then to look at the subsequent events, as it is authorized to do under Article 31(3), it would probably focus on the actual Korean occupation of Dokdo and the Japanese acceptance of the 1965 Normalization Treaty without any reference to Dokdo, both of which provide support for Korea’s position. Japan’s protests are not irrelevant, but they would probably not be viewed as sufficient to overcome the acquiescence evidenced by the 1965 Treaty and Korea’s continued occupation of the island.
4 International Legal Issues Arising from a Divided Nation
4.1 Introduction
Though Korea was liberated from Japanese colonialism at the conclusion of World War II, the Korean peninsula was in a precipitous state which eventually saw the division of the country. The immediate post World War II environment saw the rise of the Cold War period which pitted the Soviet Union and China against the United States in Northeast Asia. Following Japan’s retreat, the US occupied Korea from 1945–1948, with objectives of “imposing their own vision of modernity … based on democratic principles, promoting Korean culture and nationalist ideology, and, most important, establishing a Korean political system compatible with the pursuit of America’s international objectives.” Finally, in August 1948, the Republic of Korea was established; and although US troops were originally scheduled to depart in mid-1949, Korea ended up under US military influence following the Korean War.
While the Korean War was technically a civil war, not only was it fought out with foreign participation on both sides but it was also the first war fought under the flag of the United Nations. Estimated casualty for Korea is some 46,000 deaths and 100,000 wounded, while the figure for North Korea ranges around 215,000 killed, 303,000 wounded and over 101,000 captured or missing. The Chinese are estimated to have lost 400,000, 486,000 wounded, and over 21,000 captured. Still many more from other countries were killed, wounded or missing. Beyond these military casualties, the Korean War was one with the highest percentage of civilian death in any wars of the twentieth century with the lowest estimate at above two million. The war ended on July 27, 1953 with the signing of the armistice by the military commanders of both sides which sought to “insure a complete cessation of hostilities and of all acts of armed force in Korea until a final peaceful settlement is achieved …” That settlement has yet to be achieved. This armistice agreement recognized a Demilitarized Zone separating the two states at roughly the same shared boundary that had existed prior to the war.
Little progress has been made in negotiating future status between the two Koreas, because they are still technically at war and are deeply divided about many topics. Because many Koreans view reunification as inevitable, and thus do not accept the legitimacy of “two Koreas,” it is difficult to examine the border from a dispassionate objective stance. But the Korean people have been divided into separate kingdoms and competing regions during many historical epochs, and it is possible that the current division of the Korean peninsula will continue. It is useful, therefore, to examine the international legal issues arising from a divided nation as means of reducing one area of tension between the North and South.
Is North Korea now a legitimate “state” or a rogue entity without international status? The constitutions of both North and South Korea each stipulates that it is the sole legitimate government for the entire Korean peninsula, and each has tried to envelop the other. The South’s strategy in recent years has been to achieve unification gradually, by a policy of “construction first and unification later.” By developing faster than the North, the South sought to become strategically more important to the world. The North, on the other hand, has proposed a confederated government, but the confederation “hinged on the complete change of the political and legal order of the ROK [Republic of Korea], which was tantamount to calling for the surrender of the ROK.” These diplomatic strategies were reflected in the North and South’s respective attempts to become members of the United Nations. The South wanted its own seat, while the North wanted a rotating seat shared by each nation. Neither country supported the other’s proposal, and each application was vetoed year after year by the ally of the other Korea on the Security Council. Finally, when it became clear that Korea was going to pursue a UN seat on its own, North Korea acquiesced and applied for separate membership to the United Nations as well, and on September 17, 1991, both North and South Korea were accepted separately as member nations of the United Nations.
Following UN admission, President Roh, Tae-Woo orchestrated North-South High-Level Talks and signed the Basic Agreement on Reconciliation, Non-Aggression, and Cooperation of Exchanges. In that agreement, signed December 13, 1991, the two parties recognized the existence of each other’s governing bodies, acknowledged each other’s different systems, and recognized each side’s autonomy in domestic affairs, without recognizing each other as independent states.
Later, during the Sunshine Policy of President Kim, Dae-Jung, who was elected on December 18, 1997, the Korean government encouraged other nations to establish diplomatic ties with both North and South Korea, and today most countries have diplomatic relations with both Koreas. Realistically, therefore, the two Koreas have to be treated as separate international “states.”
4.2 International Law Issues Related to ‘Korean War’
4.2.1 UN Security Council Resolutions
On June 25, 1950, an armed conflict occurred on the Korean Peninsula when North Korea launched an armed attack against South Korea. When armed conflicts broke out, the United Nations, by immediately calling the Security Council, determined that the North Korean armed attack by forces on the Republic of Korea constituted a breach of the peace (UNSC Res. 82 (1950)) and adopted a resolution to recommend all members to furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area (UNSC Res.83 (1950)).
In particular, the UN Security Council resolution adopted on July 7, 1950 (UNSC Res.84) further recommended that all members provide military forces and other assistance to make them available to Unified Command under the United States of America. In accordance with this resolution, 16 member states dispatched assistance armed forces and 5 member states sent medical support units. As the North was driven back over the 38th Parallel by the Allied forces with Korean and US troops which reached Yalu River, Chinese forces crossed the border between China and North Korea and engaged in combat with a massive force in October 1950.
This armed conflict addresses various legal issues under international law. One of the important and fundamental legal issues under international law is related to the legal characteristic of the armed conflict. This armed conflict is often called the ‘Korean War,’ however, there are different views about its legal characteristic. While some regard it as an inter-state war under international law, while others refer to the armed conflict as a civil war because they do not view the relation between South Korea and North Korea as two separate states.
The latter view was argued by North Korea whose intention was to make the intervention of the UN illegal. The member states, which entered the war based on the UN resolutions view their acts as part of enforcement measures taken by the UN to repel North Korea’s aggression. Also, there is another view that it was a civil war until the UN Allies and the Chinese forces joined, however it escalated to a war at the international level with the intervention from outside.
The applicability of the rules of engagement depends on how the armed conflict is to be legally defined. In case of a civil war, the law of war under international law basically does not apply, and the captured soldiers during the armed conflicts of the member states that participated based on the UN resolution are not deemed as prisoners of war (POWs), but criminals under domestic laws.
When the armed conflicts broke out, South Korea and the North Korea were not parties to the four Geneva Conventions of 1949. The two Koreas, however, recognized applicability of the Geneva Convention relative to the Treatment of Prisoners of War to the armed conflict. Moreover, the two Koreas mutually recognized the applicability of the Convention (IV) respecting the Laws and Customs of War on Land of 1907, which is generally known as the “Hague Law.”
This armed conflict came to be ceased on July 27, 1953 by the Armistice Agreement (“Korean Armistice Agreement between the Commander-in-Chief, United Nations Command, on one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other hand, Concerning a Military Armistice in Korea”).
This Agreement was signed by US General Mark W. Clark as Commander-in-Chief of the United Nations Command, the North General Commander, Kim, IL Sung and Chinese General Commander Peng Dehuai. This Agreement was drawn up equally in English, Korean, and Chinese all as authentic texts. The title of the Agreement in Korean is truce agreement whereas the title in English is armistice agreement. While opinions are divided over the legal characteristic of this agreement, it is generally understood as truce agreement in view of its substantive contents.
The question of identifying contracting parties to the agreement is also an important legal issue. North Korea contends that only North Korea and the US are the actual parties to the agreement on the grounds that it was signed by the US General and the UN forces that were actually made up of the US military. This contention is understood as a political intention to limit North Korea and the US the concerned parties in the course of converting armistice agreement to peace agreement.
The prevailing scholarly view in Korea holds that the parties to the agreement include Korea and the 16 UN Member States along with China and North Korea as the US General’s signed the agreement in a representative capacity of all 16 member states that participated in the armed conflict based on the resolution adopted by the UN Security Council. Others views on the matter include the UN, North Korea and China as the only contracting parties or otherwise, to include the UN, North Korea, China, and South Korea as the contracting parties.
The so-called ‘Korean War’ still poses many other legal issues such as its effect to the status as a traditional neutral state, legal meaning of a longstanding ceasefire, that is, whether the war (if it was a ‘war’) was terminated without the conventional peace treaty or whether the peace treaty is needed to terminate the war, repatriation of prisoners of war, responsibilities under international humanitarian law on civilian massacre committed during armed conflicts, excavation and transfer of remains of war dead.
4.2.2 Korean Armistice Agreement
When North Korea invaded South Korea on June 25, 1950, it was clear from a legal standpoint that a war had begun between the two nations. Large-scale hostilities in the peninsula lasted for three years and ended when the Korean Armistice Agreement was signed in 1953. The parties agreed to hold another conference at a later date to finalize a peace agreement and to abide until that time by the terms of the Armistice. Since the parties have thus far failed to finalize a peace settlement, the effect of the Armistice on the legal status of the conflict, and the applicability of the laws of war, are ambiguous.
The title of this agreement is “The Armistice,” but many documents used the term “truce” and “cease-fire” as well throughout the negotiation. For example, a United Nations document written in a meeting in July 1951 used the expression “concrete arrangements for a cease-fire and armistice in Korea.” The document named “Memorandum by the counselor Bohlen to the Secretary of State” written in October 1951 used the expression “truce talks.” The Commander in Chief of United Nations Matthew B. Ridgway even used those three words without distinction. It is difficult to distinguish among those three terms and especially truce and armistice are almost used as a synonym.
Armistice is stipulated in Law and Customs of War on Land 1907 and Regulations concerning the Laws and Customs of War. Regulation Chapter 3 (Flags of Truce) utilized truce as the procedure to initiate negotiation while Regulation Chapter 5 (Armistices) utilized the armistice as the actual commitment of suspending the hostilities. Armistice, therefore, traditionally means suspending hostilities temporarily and provisionally, so that it cannot have an effect to put a termination to the war itself. Actually, the aforementioned treaties have the implications of a possible resumption of hostilities. Many scholars have defined the legal status – at war – of the Korean Peninsula based on this traditional approach of the armistice.
The Commander in Chief of the United Nations, Matthew B. Ridgway, sent a message about peace talks on June 30th in 1951. China and North Korea promptly replied that the central party allowed the suspension of the hostilities to occur and held a peace-making negotiation. This is an example of China and North Korea intentionally interpreting such an agreement to exceed the spectrum of the traditional approach of the armistice.
The preamble sent from the Commander in Chief, Ridgway to Chairman of the Joint of staffs of the United States stated, “A mutually agreeable agreement may be reached on the military terms for terminating the armed conflict in Korea.” The objective of United Nations forces stipulated “a cessation of hostilities in Korea, an assurance against the resumption of fighting.”
Also, the draft statement of policy proposed by the National Security Council on United States Objectives and Courses of Action in Korea stipulates that the United States objected to “terminate hostilities under appropriate armistice arrangements.” Security Council also mentioned that it “Notes with approval the conclusion of an armistice in Korea and expresses its profound satisfaction that hostilities have been brought to an end on terms acceptable to the UN.” Therefore, the Korean Armistice Agreement aims to complete the suspension of hostilities and arms conflict in Korea.
This is the point that can be distinguished from the traditional approach of the armistice. In other words, armistice perceived in traditional approach provides the room where hostilities may under certain prerequisites resume, whilst emerging views do not. The United Nations may have thought a completely new war be waged if the Communist Chinese army got a large-scale attack in violation of the armistice.
Furthermore, article 2(6) of South Korean criminal law stipulates that time at war is the duration of the declaration of war or taking hostilities against counterpart until the establishment of truce. Article 77 of the Constitution stipulates that President can declare martial law in cases of national emergency, but the previous presidents of many generations have not done so on usual circumstances. Consequently, it is not clear whether the current legal status of the Korean Peninsula is in a state of war or not. Anyhow, continuous tension in the Korean Peninsula has interfered with building peace regime.
4.2.3 The Inter-Korean Basic Agreement
It is unparalleled in history that the status which neither war nor peace continued for more than 60 years. The Korean Armistice Agreement in 1953 had made the war ended and then the Inter-Korean Basic Agreement on Reconciliation, non-Aggression, and exchanges and cooperation between the North and South in 1991 intended the peacebuilding in Korean Peninsula.
A joint declaration by North and South Korea in 1974 stated that Korea should pursue peaceful reunification and democratic system without interference by the third party. Inter-Korean Basic Agreement is the process towards peaceful reunification which is accomplishing the ethnic reconciliation through removing the state of political and military confrontation, avoiding armed aggression and hostilities, reducing tension, and ensuring peace.
The 25 clauses of the Inter-Korean Basic Agreement are subject to three categories that are reconciliation, non-aggression and exchanges and cooperation between two Koreas: firstly regarding reconciliation, to recognize and respect each other’s system, not to interfere in each other’s internal affairs and to transform the present state of armistice into a solid state of peace, and secondly regarding non-aggression, not to use force against each other and to resolve disputes peacefully through dialogue and negotiation and lastly regarding exchanges and cooperation, to promote free intra-Korean travel and contacts and to reconnect railroads and roads.
The way the agreement was adopted towards peaceful reunification is evident in the term “special interim relationship” of the Preamble in the Inter-Korean Basic Agreement. It means that the Korean questions are distinguished from other international relations issues in terms of ethnic unity and reunification.
But so far, the Supreme Court and Constitutional Court of South Korea have consistently denied the legally binding force of the Inter-Korean Basic Agreement with many reasons, for example, as a gentleman’s agreement, intentional prevention of binding force upon draft, or the lack of domestic process for ratification.
North Korea also changed its approach to the agreement by denying the agreement’s legally binding force. North Korea made a declaration nullifying the Inter-Korean Basic Agreement and its annex agreement related to NLL. It claimed that South Korea did not implement the June 15th declaration and October 4th declaration properly. It is unorthodox for the North and South to maintain the denial of the document’s legal force while both Koreas had agreed on the form of a document about rights and obligations toward peaceful reunification.
Also, there are arguments that the Inter-Korean Basic Agreement needs to be ratified under the Constitution of South Korea article 60, paragraph 1. An agreement of ratification in the National Assembly should be distinguished with the legally binding force of the Inter-Korean Basic Agreement. Even if the Inter-Korean Basic Agreement needs to be ratified in the National Assembly, reporting it in National Assembly makes it effective based on practice. Some argue that the Inter-Korean Basic Agreement is more likely an agreement in a simplified form such as an executive agreement in the United States.
Overall, both Koreas recognize each other as the enemy and special interim relationship at the same time. Therefore, atmospheres in Korea have frequently changed from intention to friendship and vice versa.
4.3 International Law Issues Related to Reunification of Korea
4.3.1 North Korea’s Legal Status in the Republic of Korea
North Korea seems to fulfill four criteria for statehood stipulated in Article 1 of Convention on Rights and Duties of States of 1933, commonly known as Montevideo Convention. Also, North Korea joined international organizations such as the United Nations which confines its membership only to a state. As North Korea establishes diplomatic relations and concludes treaties with other states, it undoubtedly exists as a state under international law. However, the domestic law of the Republic of Korea does not recognize North Korea as a state within the meaning of international law.
The Korean Constitution stipulates in Article 3 that the territory of the Republic of Korea shall consist of the whole Korean peninsula, thereby including North Korea. This provision reflects the legal position of South Korea that only one state exists on the Korean peninsula. From the perspective of South Korea, it succeeded its legitimacy as a state from the Provisional Government of the Republic of Korea and there exists only one state in the whole peninsula of Korea.
Therefore, according to the Korea’s jurisprudence, “no governmental organization that is in conflict with the sovereignty of the Republic of Korea shall be recognized” (Supreme Court’s Ruling, September 28, 1961). From this perspective, North Korea is considered to be an anti-government organization or insurrection group. Several court cases confirmed such status of North Korea under Korean domestic law.
This legal position that North Korea is merely an anti-government organization and that the entire area of North Korea belongs to a territory of the Republic of Korea leads to following logical consequences: first, while the laws of the Republic of Korea obviously have the effect over North Korea, they are merely not applicable or executable at the moment; second, the North’s aggression on June 25, 1950 is just a local riot, thereby leaving no room for the law of war to be applied; third, North Korean soldiers are not combatants of enemy states so that they cannot be treated as prisoners of war, rather they should be punished in accordance with the domestic criminal law; forth, North Koreans are obviously people of the Republic of Korea, so those who come to the South are recognized as Korean nationals without the naturalization process; fifth, literary works created in North Korea are protected by the copyright law of the Republic of Korea. These are all confirmed by the court cases of the Republic of Korea.
South Korea and North Korea respectively became a member state of the United Nations at the same time in September, 1991. This fact raised a legal question of whether the Republic of Korea recognized North Korea as a state because only a state is qualified to become a member of the UN. In addition, South Korea and North Korea signed the ‘Agreement on Reconciliation, Non-aggression, and Exchanges and Cooperation between the South and the North’ (Inter-Korean Basic Agreement) on December 13, 1999.
As this Agreement is similar with a treaty in terms of its formality, some argue that the agreement is legally binding as a treaty. If the Republic of Korea does recognize the North’s capacity to conclude a treaty, an issue will arise as to whether such recognition is equivalent to the recognition of North Korea as a state. Since then, the two Koreas held a summit meeting and adopted the joint communiqué along with the four addenda on economy. Furthermore, a great number of agreements were adopted between the South and the North including the Inter-Korean Shipping Agreement of 2004.
The domestic court decisions of the Republic of Korea confirm that the simultaneous joining of the multilateral treaty such as the UN Charter does not mean the South’s recognition on the status of the North as a state. It is also inferred from the court cases that agreements made between the South and the North are not treaties, but rather have a character equivalent of communiqué or gentlemen’s agreement, having no effect on the legal definition on the status of North Korea as anti-government organization as defined in Korean legal system.
The Korean Constitution stipulates in Article 4 that the Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the principles of freedom and democracy.
Cooperation with the North is indispensable to peaceful unification. In Inter-Korean Basic Agreement of 1991, the two Koreas defined the South-North relation, “not as one that is between the two nations, but rather as a special one that has been formulated during the process aiming at unification,” and pledged to “jointly press ahead with achieving peaceful unification.” Reflecting this situation, the recent decisions of the Supreme Court or the Constitutional Court of Korea recognize the double status of North Korea both as a partner for dialogue and cooperation for the peaceful unification of the country as well as an anti-government organization aiming to subvert the Republic of Korea.
4.3.2 The Two Korea’s Joining the UN and the Issue of State Succession
Both South and North Korea tried to join the United Nations for a long time, but it was not realized due to vetoes by the Security Council member nations that support South Korea and North Korea respectively. With the end of the Cold War by the collapse of the Soviet Union, both South and North Koreas finally became member states at the same time of the UN on September 18, 1991.
According to Article 4(1) of the UN Charter, it limited its members to peace-loving ‘states.’ Thus, it raises the question of whether a certain country’s being a member of the UN means the collective recognition of a state by the UN member states. The Republic of Korea does not recognize North Korea as a State, but rather sees it as an anti-government organization under the Korean domestic law. Also, there are UN member states including the US and Japan that do not recognize North Korea as a State. Conversely, North Korea does not recognize the Republic of Korea as a State, either. Thus, the issues of the status of the UN member states and recognition of a state were raised again by the simultaneous joining of the UN by both Koreas.
With regards to this question, there is a view that, theoretically, joining the UN effects recognition of states by all UN member states (for example, Kelsen). However, the practice under international law does not seem to be working in that way. In other words, recognition of states is a unilateral act of granting it by each state considering its own political situation, and so joining an international organization itself does not mean collective recognition of a state by all its member states, unless there is a special reason for it.
But, an argument that the member states who voted in favor impliedly gave recognition of a state unless they explicitly express reservations is being accepted as a convincing argument, and in fact, there are states that were recognized in that way (Japan’s vote in favor for Mongolia and the Kingdom of Bhutan to join the UN). The two Korea’s joining was unanimously approved by all 159 UN member states at that time without a vote at a general meeting of the UN, which means the US and Japan did not specifically express opposition to the North’s joining and did not make reservation on the matter of recognition of a state, either.
This can raise a question of implied recognition of a state. However, it seems that the US and Japan do not treat North Korea as a state even after it joined the UN In that sense, it is difficult to say that the US or Japan recognized North Korea as a state by its UN membership. South Korea was not a member state to the UN at that time, and it did not have an opportunity to vote for or against it. Even after the two Koreas’ UN membership, South Korea’s consistent practice shows that it did not recognize North Korea as a state, and vice versa.
4.3.3 Issues Related to Reunification of Korea
The most essential issue under international law relating to reunification of two Koreas is state succession. In particular, the succession of territorial border treaties that North Korea concluded with China and Russia is considered as important matters that act as a key variable in Northeast Asian security in the possible post-reunification era.
These matters are directly influenced by the process and the form of the unification. Solutions on various legal issues under international law will depend on answers to questions of whether unification would bring armed conflicts or it would be carried out by a peaceful means, and whether, in case of a peaceful unification, two Koreas would agree upon reunification on an equal footing or one side will absorb the other.
In case the two Koreas achieve reunification through a peaceful means on an equal footing, the matter of state succession would fall into the case of ‘Uniting of States’ in Article 31 of Vienna Convention on Succession of States in respect of Treaties of 1978 and Article 16, 29 and 39 of Vienna Convention on Succession of States in respect of State Property, Archives and Debts of 1983. South and North Koreas are not state parties to the Vienna Convention of 1978 and the Convention of 1983 is not in force. Also, there is a question regarding whether the provisions of these Conventions are established as customary international law. These provisions, however, will play a guiding role in state succession issues after reunification.
According to the Vienna Convention of 1978, South and North Korea respectively agreed to continue their commitments to the treaty even when they unify into one nation (Article 31(1)). Therefore, multilateral treaties to which the two Koreas are state parties and a number of bilateral treaties that both Koreas respectively concluded will continue in force in the unified Korea. However, when the unified Korea and other State parties otherwise agree, such treaties can be excluded in state succession (Article 31(1)(a)). Furthermore, in cases wherein it is apparent from the treaty that treaty application would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation, unified Korea may choose not to uphold treaties that each Korea concluded (Article 31(1)(b)). Treaties of a political nature, especially treaties of alliance, that South and North Koreas concluded are the examples of this provision, and it is highly probable that these treaties will not be succeeded. In case of state properties, archives, and debts, both South and North’s state properties, archives and debts deemed to pass to unified Korea in accordance with the provision of the Vienna Convention of 1983.
In case the South is absorbed to the North, or as a more probable assumption, the North is absorbed to the South, the German unification of 1990 can be one of the precedents and be referred to. The way applied to German unification, however, has not been established as customary international law. First of all, the framers of the Convention of 1978 viewed that Article 31 could also be applied to the case of absorption unification. However, the prevailing view is that this provision may not be applied to the absorption case for unification.
For an absorption unification, it is strongly argued that as far as treaties are concerned, the succession of treaties should be dealt with by applying the ‘Principle of Moving Treaty Boundaries’ prescribed by Article 15 of the Convention of 1978 as customary international law.
According to this view, the effect of North Korean treaties will be naturally extinguished and the South Korean treaties will be expanded to the territory of North Korea to take effect. However, treaty succession issues will not occur if, before the unification, North Korea decides to terminate its treaties. Similarly, there would be no issues if the other state parties in relation to North Korea decide to terminate their agreements. It is also possible for the unified Korea to discuss treaty succession issues with state parties that concluded treaties with North Korea and whether those treaties shall be succeeded or terminated.
For state properties, archives and debt, however, the provisions of the Uniting of States should be applied, rather than those of ‘Transfer of part of the territory of a State’ under the Convention of 1983 (Article 14, 27, and 37), since the whole territory of North Korea is to be absorbed into the Unified Korea.
Concerning boundary agreements, South Korea expressed its concerns regarding North Korea’s boundary treaties with China and Russia and is contending that, after reunification, the Unified Korea should discuss the boundary issues of Baekdusan (Mt. Baekdu) with China. Similarly, South Korea proposes a discourse regarding the Gando Convention with Russia on the issue of Noktundo.
According to Article 11 of the Convention of 1978, however, it should be viewed in the way that the Unified Korea cannot disregard the treaties that North Korea has already concluded. Likewise, the Unified Korea has a succession obligation of territorial treaties that North Korea made with China and Russia regarding the use of the Yalu River (Amnokgang) or the Tumen River (Doomangang).
In case the two Koreas are reunified through a peaceful means on an equal footing, the Unified Korea is theoretically a new State. As such, it is deemed to be a new entity when joining international organizations. However, considering the practice of the United Nations that the membership continues in such a case without a new membership in the organization, it is highly probable that the UN membership of the Unified Korea will be recognized in the same way as before.
In case of an absorption unification, the membership of all international organizations to which South Korea is a signatory will be maintained, but the membership of international organizations to which North Korea is a signatory should be specially dealt with: for example, North Korea can leave the organizations of its membership, South Korean may succeed North Korea’s membership status through consultation with international organizations, and such. Since South Korea mostly joined the international organizations in which North Korea has membership, this issue is not considered a great concern.
4.4 Human Rights Situations in North Korea
4.4.1 From the Perspective of International Human Rights Law
It is difficult to get accurate information regarding the human rights situation in North Korea since it is a closed society. There are various sources, however, that provide reports of human rights violations in North Korea. According to the Annual Report of Amnesty International in 2012, North Koreans continue to suffer violations covering nearly the entire spectrum of their human rights. The biggest concern relating to North Korea’s economic situation is the right to sustenance.
North Koreans are exposed to the danger of death by famine due to food shortages. Limited food is discriminately distributed according to social classes and regions. The right to adequate standard of living is also being infringed upon due to shortages of water and sanitary facilities. Additionally, the collapse of the North Korean medical system is causing a great predicament to the right of North Koreans to healthcare.
Individual freedom is seriously violated in all areas such as thought, conscience, religion, association, and expression. The North Korean government controls the flow of information and does not recognize free speech and expression. The nation infringes on rights on political freedom and censors the people’s thoughts by operating many political prison camps. In these camps, human rights violations such as torture and forced labor are being committed on a daily basis. Capital punishment, which is related to the right to life, is also being conducted and public execution is carried out as well. North Koreans do not have a right to residence and movement and a private life is not protected. As to a personal liberty, the North Korean criminal procedure provides rules on arrest, imprisonment, and search and seizure, but there is no previous warrant system and laws and regulations are not generally observed.
The most serious problem concerning a right to equality among North Korea human rights issues is a classification system of North Koreans and discrimination in accordance with it. The people could be classified into three political groups: a “core class,” a “wavering class,” and a “hostile class” based on their origins and social status. The hostile class is poorly treated in every area of life including employment, education, residence and medical service. Cases of discrimination on the disabled proved to be serious, where their right to residence is restricted, and in particular, dwarves go through forced vasectomy and are separated from the public. There are many other human rights issues, such as severe punishment towards defectors, North Korean and Japanese abductees. There are also cases wherein South Korean Prisoners of Wars were not safely returned to South Korea.
Currently, North Korea is a state party to several important international human rights treaties including International Covenant on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR), on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child, and Convention on the Prevention and Punishment of the Crime of Genocide. It is needless to say that a system to implement these treaties will be an important means under international law to improve North Korean human rights situation. For example, North Korea submits reports required by each treaty to conform to a reporting system of these treaties.
North Korea once informed the UN Secretary-General of its withdrawal from the International Covenant on Civil and Political Rights on August 27, 1997. However, the nation went against its own withdrawal by submitting a regular report of ICCPR in March 2000. These reporting systems can have an effect on indirectly pressuring North Korea regarding its observance of human rights treaties.
However, North Korea did not accept the state-to-state Complaint of ICCPR (Article 4) and is not a party to the Optional Protocol to the International Covenant on Civil and Political Rights that prescribes the system of Individual Complaint of ICCPR. Furthermore, North Korea is not a state party to core treaties for the protection of human rights including International Convention on the Elimination of All Forms of Racial Discrimination (CEDAW), Second Optional Protocol to ICCPR, aiming at the abolition of the death penalty, Optional Protocol to CEDAW, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Optional Protocol to CAT, Optional Protocol to CRC on the involvement of children in armed conflict, Optional Protocol to CRC on the Sale of Children, Child Prostitution and Child Pornography, Convention on the Rights of Persons with Disabilities (CRPD), Optional Protocol to CRPD, International Convention for the Protection of All Persons from Enforced Disappearance. This is a major factor limiting the improvement of North Korean human rights through international human rights treaties.
Since North Korea is a member state of the UN, its mechanisms for human rights protection can be useful means to improve North Korea’s human rights situation. The UN Commission on Human Rights (UNCHR), a subsidiary body of the UN Economic and Social Council, which substituted the Human Rights Council, has been passing a resolution every year on North Korean human rights since 2003 when it first adopted a resolution on it. Also, the UNCHR passed a resolution in March 2012 with the title “Human Rights Situation in the Democratic People’s Republic of Korea,” which contains determination, urging, and a request (A/HRC/RES/19/13, 3 April 2012).
In addition, the UNCHR appointed Vitit Muntarbhorn as Special Rapporteur on the situation of North Korean human rights. He submitted reports twice to the UNCHR which functioned as a basis for resolution on North Korean human rights in General Assembly of the UN.
A national report system for the universal periodic review of the UN Human Rights Council can certainly contribute to the improvement of the human rights situation of North Korea. By submitting a report on human rights, North Korea may put effort into improving its human rights conditions. Also, through the mechanism of the universal periodic review, other countries can raise questions on North Korean human rights conditions, which can indirectly lead to North Korean efforts in improving human rights conditions.
Since 2005, the UN General Assembly has brought up an agenda on the North Korean human rights issue and adopted a resolution by voting. The resolution adopted most recently expresses serious concern at the persistence of continuing reports of systematic, widespread and grave violations of civil, political, economic, social and cultural rights in the Democratic People’s Republic of Korea, and passed a resolution urging an immediate end to human rights violation, protection of its people and punishment of the person in charge of human rights violation, implementation of human rights related recommendations by the UN, in cooperation with the international community for human rights improvement and consideration for joining Conventions relating to human rights.
These resolutions reflect international communities’ interests and concerns towards the North Korean human rights condition and can amount to pressure towards the North Korean authorities. North Korea, however, is responding with criticism to resolutions related to North Korean human rights passed by Human Rights Council or the UN General Assembly. The State remains uncooperative in activities of the Special Rapporteur or Office of the High Commissioner for Human Rights.
4.4.2 North Korean Human Rights Act
Under Article 3 of the Constitution, it is possible to construe North Korean residents as natural citizens of South Korea, and the position of judicial precedents is concurrent. According to the reports submitted by international organizations including United Nations and other related transnational civil society groups on the human rights situation in North Korea, North Koreans are systemically repressed of their basic rights including civil and political rights as well as economic and social rights such as access to food, medicine, and other necessities.
Ironically, North Korea is a signatory state of five major international human rights treaties: the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD).
However, the signing of treaties remained as a mere ritual without sincere motivations or concrete actions. The implementation of the five treaties in North Korea is still open to question. So far, the results of tangible domestic practices have been vague. Furthermore, while North Korea has adopted or amended a number of domestic legislation consistent with the ratified human rights conventions especially in the areas of criminal law, criminal procedure and gender equality, it would appear to be on paper rather than in practice.
For over ten years, the United Nations General Assembly and the Human Rights Council have adopted resolutions aimed at addressing North Korea’s gross human rights violations. The UN Special Rapporteurs, appointed to examine the situation of human rights in North Korea, have also called for the international community to pay greater attention to the worsening human rights conditions in the region. Despite the efforts made by the international community, the North Korean regime has been refusing to comply with the UN human rights mechanisms. It is argued that the North Korean case is one of the few that remains as an affront to the accountability norm. However, with the exception of North Korea, holding states accountable and punishing individuals responsible for massive human rights violations have become the rule in the international community with the development of international criminal law.
In this respect, it is noteworthy that there has been dramatic progress since the Commission of Inquiry was established by the Human Rights Council based on the recent resolution adopted in March 2013. The Commission intensively investigated the situation in the region, with a view to ensuring full accountability in particular for violations that may amount to crimes against humanity. The COI completed its mandate by presenting a 400-page final report to the HRC in March 2014. The Commission confirmed that most of the human rights violations committed in the North and those that continue to take place in North Korea amount to crimes against humanity and recommends the international community to address the human rights situation in North Korea by taking actions based on the principle of Responsibility to Protect, including Security Council’s referral of the case to the International Criminal Court or the establishment of an ad hoc international criminal tribunal.
In the same vein, South Korea adopted the North Korean Human Rights Act on March 3, 2016, and enforced on September 4, the same year. The Act intends to protect and promote the full enjoyment of human rights and fundamental freedoms of North Koreans by laying the institutional foundation to draw up and carry out consistent and systematic North Korean human rights policies. Overall, the purpose of this Act is to contribute to the protection and improvement of human rights of North Koreans by pursuing the right to liberty and right to life prescribed in the Universal Declaration of Human Rights and other international conventions on human rights as stipulated in Article 1 of the Act.
In addition to efforts to protect and promote the human rights of North Koreans, this Act highlights that the State shall also endeavor to improve North-South relations and to establish peace on the Korean Peninsula. At the same time, the Government shall promote inter-Korean human rights dialogue on important matters for the improvement of human rights in North Korea based on Article 7. In order to provide advice on policies related to the improvement of human rights in North Korea, there is hereby established a North Korean Human Rights Advisory Committee in the Ministry of Unification.
In providing North Korean authorities or agencies with any humanitarian assistance for North Koreans to promote human rights in North Korea, the State shall endeavor to ensure that the following matters are complied with, firstly assistance shall be delivered transparently under internationally recognized delivery standards and secondly, assistance shall be provided preferentially for vulnerable social groups, such as pregnant women and infants.
Furthermore, to investigate the actual status of human rights in North Korea and to engage in research, policy development, etc. related to the improvement of human rights in North Korea, including inter-Korean dialogue on human rights and humanitarian assistance, the Government shall establish a North Korean Human Rights Foundation based on this Act. It, however, has not been set-up until today. Lastly, to collect and record information on the status of North Korean human rights and information for the improvement of human rights in North Korea, there is hereby a Center for North Korean Human Rights Records in the Ministry of Unification based on Article 13.
4.5 Maritime Order with North Korea
4.5.1 Northern Limit Line
The United Nations Command and the North Korean army established a Military Demarcation Line on land at the time they signed the Inter-Korean Armistice Agreement on May 27, 1953, but did not extend it into maritime areas. The seaward extension, which became known as the Northern Limit Line (NLL), was drawn by UN Commander General Mark Clarke on August 3, 1958, and is a line that is roughly equidistant between the North Korean coastline and five tiny South Korean islands (Paengnyongdo, Taechongdo, Sochongdo, Yongpyo-Yolto, and Udo, which, taken together, contain five square miles of land) that hug the North Korean coast but are controlled by and claimed by South Korea.
Its purpose was to prevent a clash between military vessels and aircraft of both sides, and seems originally to have been designed to prevent South Korean naval vessels and aircraft from going north. It has been challenged by North Korea ever since, because it was declared unilaterally and because North Korea views the line as an infringement on its sovereignty and its legitimate access to the sea. Because the NLL is not mentioned in the Armistice Agreement itself, its status and that of the waters around it remain contentious.
South Korea acknowledges that the NLL declaration was not officially part of the agreement that marked the cessation of hostilities between the two countries, but argues that the NLL has become the de facto border because (1) North Korea did not object to the NLL until October 1973; (2) North Korea implicitly recognized the NLL several times; and (3) the 1991 Basic Agreement stipulates (in Article 11) that “the South-North demarcation line and areas for non-aggression shall be identical with areas that have been under the jurisdiction of each side until the present time” and that the Protocol on Non-Aggression states (in Article 10) that “the South-North sea non-aggression demarcation line shall continue to be discussed in the future. Until the sea non-aggression demarcation has been settled, the sea non-aggression zones shall be identical with those that have been under the jurisdiction of each side until the present time.”
South Korea thus argues that the NLL cannot be unilaterally challenged or discussed except in a comprehensive agreement to bring permanent peace to the Korean peninsula, and South Korean conservatives view alterations to the NLL as a violation of the Korean Constitution which requires the government to maintain the integrity of the nation’s borders.
South Korean resistance to creating a joint development zone encompassing territory on both sides of the NLL is based partially on the concern that such an agreement would nullify the line and cede territory to North Korea. The United States concurs that the 1992 Basic Agreement between North and South Korea stipulates that both Koreas must respect the line until a new agreement can be reached.
North Korea counters that when the NLL was drawn, the UN command did not inform Pyongyang, which neither acknowledged nor accepted it. It argues that the NLL illegally restricts its access to the open sea and should be redrawn further to the south to more closely reflect the land demarcation between the two countries.
North Korea asserts that it has challenged the line on many occasions during the past 55 years, particularly as the value of the blue crab catch in the area has become more apparent. It also argues that its vessels have regularly fished in the waters claimed by the South, and that since March 1955 it has claimed under customary international law a 12-nautical-mile territorial sea from its coast, which extends well south of the NLL. Because the NLL hugs the North Korean coastline, Pyongyang claims that it unfairly gives too much ocean space to South Korea.
4.5.2 The Armistice Agreement and International Maritime Law
To properly understand the waters of the Five Islands in the West Sea, one must re-recognize the Korea Armistice Agreement. The Armistice Agreement which regulates war and peace on the Korean Peninsula, is a product of the Korean War, but it is the way to end the war and move towards peace. The basic purpose of the Agreement is to prevent hostile acts and promote peace. It is stipulated in the Agreement that the Five Islands in the West Sea and the Han River estuary, unlike the Demilitarized Zone on land, are open for public access. We tend to forget this point.
The Armistice Agreement divides the border between the two Koreas into three zones: the DMZ, the Han River Estuary, and the Five Islands in the West Sea. The DMZ, defined as a military buffer zone that strictly controls civilian access and traffic, is facing directly against the Military Demarcation Line. On the other hand, the Han River Estuary does not have a Military Demarcation Line but is open to navigation by private vessels from both South and North Korea. However, the Military Armistice Commission and the UN Command have jurisdiction over ship registration and civil administration.
Moreover, the Five Islands in the West Sea have no military demarcation line or designated waters under the jurisdiction of UN Command. South and North Korea have only declared the principle of respect for territorial waters. Therefore, in principle, vessels from third countries are allowed to use the waters in accordance with international maritime law unless they intrude upon territorial waters.
In principle then, just as South Korean fishing vessels can sail through the Yangtze River basin in China, it is also possible to enter the offshore area of the Nampo Sea of North Korea. Likewise, North Korean fishing vessels can also carry out fishing activities in Gyeonggi Bay of South Korea. According to the Armistice Agreement, South and North Korean fishing vessels can freely sail up and down and operate as long as they do not intrude the adjacent coasts. No one including UN Command, can interfere with such practice. The idea that a military demarcation line should be drawn in waters as it does on land, merely reflects the unconsciousness of national division. At the time the Armistice Agreement was concluded, the principle of freedom of the high seas (“mare liberum”) was established under international law. Also, the UN Convention on the Law of the Sea, which stipulates 12 nautical miles of territorial waters and 200 nautical miles of the Exclusive Economic Zone (EEZ), was not in existence then. Therefore, it was impossible to even think of drawing a ‘cease-fire line’ separating the sea from the North and South.
However, North Korea, with its weak naval power, was not satisfied with the said principle of ‘freedom of the high seas’ and a ‘3 nautical mile’ territorial waters. North Korea referred to a maritime military demarcation line from the beginning of the Armistice talks. After the Armistice Agreement was signed, the Military Armistice Commission also claimed an extension of the land military demarcation line or an extension of the Yellow Sea and Gyeonggi Islands as the maritime military demarcation line.
Since then, as the development of the international maritime law has led to the claim of a 12 nautical mile of territorial sea as well as a 200 nautical mile EEZ, North Korea has declared its Military Sea Boundary as well as a maritime border in the waters of the Five Islands in the West Sea. In response, South Korea also declared a 12 nautical mile territorial sea and a 200 nautical mile EEZ. South Korea has secured the Northern Limit Line as a maritime military demarcation line.
Thus, the waters of the Five Islands in the West Sea that overlaps the EEZ of the two Koreas have become an area of conflict and hostility. The original spirit of the Armistice Agreement, which incorporated the principle of the freedom of the high seas to be applicable for both South and North Korea to share its waters except for the 3 nautical mile territorial waters has now disappeared. Tensions in the West Sea eventually led to a series of military clashes between the two Koreas, starting with the Battle of Yeonpyong in 1999. We hope that South and North Korea will find a peaceful solution by upholding the spirit of the Armistice Agreement. The solution is to identify a 3 nautical mile EEZ in the contiguous zone of the West Sea, and the seas beyond those areas should be used as shared waters for peace and cooperation by the two Koreas. It will be the first step towards a peace agreement on the Korean Peninsula.
4.5.3 Flexible Approach Needed for Maritime Delimitation of the Five Islands in the West Sea
The UN Convention on the Law of the Sea, signed in 1982, establishes a legal framework for all activities in the ocean, and establishes a maritime zone that can be claimed as territorial. The general rules for determining territorial waters are set out in Article 15, which states that the boundary between two countries is set as the median line. However, the Convention does not specify how the EEZ should be delimited. The delimitation of the EEZ between States with opposite or adjacent coasts is stipulated in Article 74, which states that “the delimitation … shall be effected by agreement on the basis of the international law … in order to achieve an equitable solution.”
Accordingly, the laws and regulations related to the delimitation of a maritime boundary are generally developed and crystallized by the cases decided by international courts. In the case of maritime delimitation of the Black Sea between Romania and Ukraine in 2009, the International Court of Justice applied the so-called “three-step approach” to decide the maritime boundary. This approach is recognized as a common practice in delimitation of maritime boundary through subsequent rulings.
The ‘three-step approach’ consists of the following: first, setting the provisional equidistant and median line; second, considering whether there are factors that require adjustment of the equidistant line or median-line to achieve equitable results; and third, checking to make sure that the adjusted boundary does not produce unequal results due to the serious imbalance between the ratio of the length of each country’s coastline and the ratio of the relevant sea area that will belong to each country.
What then would happen to the final delimitation of the maritime boundary of the Five Islands in the West Sea when applying this three-step approach? While it is not certain as to how the hypothetical medial line in the first step will be changed through the second and third stages and finalized at the end, this issue will be clarified if South and North Korea take the case to an international court. Even if the two Koreas try to resolve the dispute through bilateral negotiations, the three-step approach is likely to be invoked due to the predictability of the outcome.
However, the problem is that the waters of the Five Islands in the West Sea are not just a matter for South and North Korea, but it is an area where the jurisdictions of three countries, Korea, China and Japan overlap to some extent. Any change in the legal status of the maritime order between South and North Korea could affect the establishment of the maritime order between South Korea and China, and North Korea and China, as no agreement on a maritime boundary has been made between these countries. Consequently, it is necessary to take a flexible approach to the traditional approach, which centered on securing jurisdiction and establishing maritime boundaries, and simultaneously seek ways to manage and find proper means of dispute settlement in the waters concerned.
The UN Convention on the Law of the Sea divides the sea into territorial waters, contiguous zones, EEZs, and international waters and functionally confers rights to coastal and non-coastal countries. The waters of the Five Islands in the West under national jurisdiction should be minimized. It is also important to seek ways to manage the water in an integrated manner while coordinating the interests of both South and North Korea.
Furthermore, except the North Continental Shelf Boundary Agreement between Korea and Japan in 1974, the current maritime order, which has no maritime boundary with neighboring countries, should be considered as a product of the dynamic relations between these neighboring maritime powers. In addition, if South Korea is to secure at least some leading position in the Korean Peninsula, it is critical that the maritime order between South and North Korea should be managed in a stable way.
It is necessary to raise awareness of marine spatial planning and utilization in the Five Islands in the West Sea in order to stabilize the maritime order on the Korean Peninsula and establish a peace regime through an accurate understanding of the maritime border as originated from the Armistice Agreement.
4.5.4 West Sea Special Zone for Peace and Cooperation between South Korea and North Korea
The Northern Limit Line (NLL), drawn up in the coastal waters of Incheon since 1953, has caused continuous military confrontations between the two Koreas for more than half a century. To reduce tensions and deter conflict over the NLL, an agreement to create a “Special Peace and Cooperation Zone in the West Sea” (West Sea Special Zone) in the coastal waters of Incheon was reached during the Second Inter-Korean Summit Meeting on October 2007.
Among other things, the Special Zone envisioned the creation of (1) a joint fishing and peace zone, (2) the Haeju special economic zone, (3) joint utilization of Haeju harbor, (4) direct passage for civilian vessels to Haeju through the NLL, and (5) joint use of the Han River estuary. Following the Summit, several high-level meetings were held between the Koreas in order to iron out the details and implement the October 4 agreement.
Numerous mutual benefits were envisioned by the establishment of the West Sea Special Zone. For example, a joint fishing zone in the West Sea would help prevent illegal fishing by Chinese fishing boats, increase the income of fishermen by expanding the fishing grounds, and deter naval conflicts between the South and the North.
It was also expected that the development of Haeju Port would stimulate the Haeju Special Economic Zone and the Gaeseong Industrial Complex (GIC) by establishing a maritime distribution network, and that the mass transport of sand and gravel excavated in the western areas such as the Bay of Haeju would contribute to the stable distribution of domestic resources.
Furthermore, direct passage for civilian vessels to Haeju would dramatically shorten the time it takes to travel to Haeju harbor, reducing maritime distribution costs and thereby encouraging active maritime exchanges between the two Koreas.
Although the project has been in limbo since the change in South Korea’s administration in early 2008 and the subsequent chilling of inter-Korean relations, interest in establishing the West Sea Special Zone has survived. The port city of Incheon, in particular, has a special interest in the establishment of the Special Peace and Cooperation Zone. In addition to being located on the west coast near the NLL, Incheon experienced the bombing of Yeonpyeong Island in 2010 by North Korea. Thus, for Incheon, it is extremely important to prevent further civilian and economic losses due to conflicts over the NLL.
Young-gil Song, ex-mayor of Incheon, stressed in his 2011 New Year’s address that the area around the five small islands near the NLL in the West Sea should be established as the West Sea Special Zone. This declaration by Mayor Song was in line with the provisions agreed to in the Second Inter-Korean Summit in 2007 that addressed the creation of the West Sea Special Zone. The hope is that joint efforts could bring stability, peace, and mutual economic benefit to both Koreas in an area commonly referred to as a “powder keg.”
Furthermore, the ex-President of South Korea, Park, Geun-hye, indicated that she was more open to the possibility of joint economic projects with the North than her predecessor, former President Lee, Myung-bak. President Park’s North Korean “trustpolitik” doctrine and alignment policy aimed to be both “tough” and “flexible,” not giving into North Korean provocations while being open for dialogue. She also viewed joint economic projects and trade between the Koreas as part of the trust-building process. Unfortunately, joint economic projects between the Koreas, such as the GIC and Mount Geumgang tours, were on hold and inter-Korean relations had been especially tense since early 2013 up until new president of South Korea, Moon, Jae-in was elected. The need for establishing a West Sea Special Zone remains and it is in the interest of both Koreas to actively cooperate and resume efforts at creating the Special Zone at the earliest possibility.
4.6 Judicial Decisions
4.6.1 Is the UN Membership of ROK and DPRK a Mutual, Tacit Consent?
Constitutional Court [95 Heon-ga 2] Decision issued October 4, 1996.
Following the decisions of this court in 89 Heon-ga 113 (Decision of April 2, 1990) and 90 Heon-ga 11 (Decision of June 25, 1990), Republic of Korea (Korea) and the Democratic People’s Republic of Korea (North Korea) simultaneously joined the United Nations (UN) on September 17, 1991. The two governments, on December 13 of the same year, signed the Inter-Korean Basic Agreement, which subsequently entered into force. Taking into consideration their effect on the above decisions, the simultaneous membership cannot be deemed to have given effect to the mutual acknowledgement of statehood of South and North Korea. Neither does the conclusion and entry into force of the Inter-Korean Agreement indicate an abandonment on the part of the North of its plans of communist revolution towards the South; and as provocations along these lines continue to this day, the mere situational changes mentioned above do not evidence a fundamental change of logical or realistic circumstances upon which the decisions were reached. Even today, no other changes calling for a different conclusion can be acknowledged.
4.6.2 Legal Nature of the Inter-Korean Basic Agreement
Constitutional Court [89 Heon-ma 240] Decision issued January 16, 1997.
On December 13, 1991, Government officials of South and North Korea signed the Inter-Korean Basic Agreement (Agreement towards Reconciliation, Non-Aggression, Exchange and Cooperation between South and North Korea), which entered into force on February 19, 1992. However, as this Agreement was concluded “[r]ecognizing that their relationship, not being a relationship between states, is a special one constituted temporarily in the process of unification (preamble),” the Agreement has the nature of a Joint Statement or Gentlemen’s Agreement that promises to faithfully carry out the agreements between the authorities of South and North Korea (See Supreme Court [98 Doo 14525] Judgment issued July 23, 1999).
4.6.3 Territorial Clause of the Constitution and the Status of North Korea
Supreme Court [90 Do 1451] Judgment issued September 25, 1990.
Article 3 of the Constitution states, “The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.” Under law, no other state agencies in conflict with the sovereignty of the Republic of Korea can be recognized (Judgment issued by this court on Sept. 28, 1961, 4292 Hyeong-sang 48). Though North Korea exists as an independent sovereign state in international society, and our Government has used the title of North Korean Head of State to propose summit meetings with the North, this is not evidence that North Korea is not an anti-government organization violating the territorial sovereignty of the Republic of Korea …
4.6.4 Status of North Korea’s Military Government
Military Supreme Court [4281 Heong-sang 10] Judgment issued March 24, 1948.
It is obvious that two legal systems cannot exist within the territory of one nation; and even if a part of the territory is temporarily occupied by the military of another state, or that the state in its entirety is occupied by two or more military groups, this does not mean that the country becomes divided into two or more independent states. Therefore, even though our country has been conquered by the US and USSR, and the South and the North now have differing legal systems, this is not evidence that the North is not part of our homeland. Thus it follows that the Soviet army note as forced currency in North Korea is regarded as a banknote under Criminal Act article 149, and the Claimant’s arguments are unacceptable.
5 The Making of International Law in Korea
The development of international law in Korea is traced back to the late 19th century when Korea was confronted with public international law introduced by Western imperial states and further influenced by Japanese colonialization from 1910 to 1945 and US military administration in the southern half of Korea from 1945 to 1948. The Republic of Korea was formally established in 1948 with the adoption of its first Constitution. The history and legacy of Korea play an important role in shaping the contours of Korea’s legal system as well as Korea’s international relations.
The legal system of Korea particularly underwent drastic changes during Japanese colonial rule as the Japanese government tried to apply their civil law system, based on the continental European legal system, to Korea. Such legal changes imposed under colonial rule created challenges because Korea was faced with a conflict between its deep-rooted Confucian traditions and the newly incorporated European-oriented legal principles. After Korea gained its independence in 1948, the issue of reconciling Confucianism and colonialism in Korean law was additionally intertwined with the novel principles of constitutionalism that came about due to the growing influence of the Anglo-American legal system in Korea.
Korea’s approach to international law is explained through the interpretation of its Constitution which stipulates in relevant part that “treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea.”
In accordance with this provision, international law has been generally accepted as Korean domestic law and incorporated into Korea’s domestic legal system. While the Constitution explicitly sets forth that treaties duly concluded are accorded with the same status as the domestic law of Korea, there is no specific mention of customary international law. The term ‘generally recognized rules of international law’ is largely interpreted to mean customary international law. Regarding the status of international law in Korea’s domestic legal system, the prevailing view is that both treaties and customary international law stand equal with domestic legislations. While the treaties ratified with the consent of the National Assembly are deemed to have a status equal to statutes passed by the National Assembly, those simplified treaties without legislative consent are deemed to enjoy the same status as decrees issued by the President and various ministries or enforcement decrees under the statutes.
The tumultuous experiences of the Korean nation in the twentieth century within the context of international relations in Northeast Asia has had a significant impact on Korea’s attitude towards and practice of public international law. Korea has many issues to be settled under international law. Such issues include, but not limited to, territorial disputes with neighboring countries, issues of transitional justice, and issues regarding delimitation of maritime boundaries and fisheries.
As to adjudication as a means of dispute settlement, Korea has not recognized the compulsory jurisdiction of the International Court of Justice (ICJ). However, Korea has accepted the compulsory jurisdiction of the ICJ for disputes arising out of the interpretation or application of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, as well as the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes. Korea, as a party to the UN Convention on the Law of the Sea (UNCLOS), submitted a declaration under UNCLOS Article 298 in 2006. Korea generally remains inactive in employing international adjudication as a means of dispute settlement. Moreover, Korea has not employed non-judicial means of dispute settlement such as inquiry, mediation or conciliation. The only bilateral agreement concluded for the very purpose of dispute settlement is the Exchange of Notes concerning the Settlement of Disputes concluded between Korea and Japan in 1965. One of the possible explanations for Korea’s rather confined choice for dispute settlement is that most issues at stake are delicately related to territorial matters, which can never be easily left for a third-party decision.
As a full-fledged member of international community, Korea has been actively involved in a number of activities at international organizations and conferences. Korea particularly devoted to a multilateral diplomacy at the UN and gradually pursued bilateral diplomacy even in the multilateral forums such as the G20 Summit.
Moreover, Korea utilized its UN diplomacy to extend the scope of its global participation in major global agendas including, but not limited to, human rights, environment, terrorism, and poverty. The hosting of major international forums such as the G-20 Seoul Summit, the 2012 Nuclear Security Summit, and the 4th High-Level Forum on Aid and Effectiveness in 2011 showed Korea’s national capacity to serve not only as a global agenda setter, but more importantly as a bridge builder between developed and development countries. Korea’s engagement with the international community extended to humanitarian and disaster-relief efforts through its participation in the UN peacekeeping missions.
Korea’s experience in international relation is rather unique in the sense that Korea emerged not only from Japanese colonialism, but also from a war-torn country to become an Asian power. Some significant international legal issues including those which resulted from the Japanese occupation of Korea as well as from the Korean War are highlighted as follows:
5.1 The Legacy of Colonialism
This historical fact that Japan ruled and controlled Korea from 1910 to 1945 caused many international law issues, some of which have still not been settled, between Korea and Japan. The most critical and fundamental question, among others, is whether the Japanese ruling over Korea was based on the grounds of international law. In particular, the validity of the two treaties – the treaty of 1905 which deprived Korea of its diplomatic sovereignty and the annexation treaty of 1910 – have been the subject of much controversy.
Upon Korea’s signing the Treaty on Basic Relations with Japan in 1965 to normalize diplomatic relations, the two countries tried to solve unsettled legal issues by concluding additional treaties such as the Agreement on the Settlement of Problem concerning Property and Claims, Agreement concerning Cultural Assets and Cultural Cooperation, and Agreement concerning the Legal Status and Treatment of the Korean Residents in Japan. Without any success, the issue on legality or legitimacy of Japan’s ruling over Korea under international law was never solved and rather ended up with vague provisions in the treaty, which, in turn, raises a matter of interpretation until the present time. Another key issue arising out of the Japanese colonization of Korea is related to Dokdo, a group of small islets in the East Sea because the issue surrounding Dokdo is often raised in the context of Japanese imperialism and expansionism into Korea.
5.2 International Legal Issues Arising from the Korean War and Inter-Korean Relations
Armed conflicts occurred on the Korean Peninsula in the early 1950s has raised a number of important legal issues under international law. The Korean War poses many legal issues especially related to international humanitarian law such as the legal characteristic of the armed conflict, the applicability of the rules of engagement and legal meaning of a longstanding ceasefire.
As North Korea launched an armed attack against South Korea on June 25, 1950, a series of the resolutions were adopted by the UN Security Council (UNSC Res. 82, UNSC Res. 83, UNSC Res. 84, UNSC Res. 85) and it was the first time the UN Security Council had authorized the use of force since its inception in 1945 and members of the United Nations acted collectively to repel aggression. As a veto by then Soviet Union was frequently used to block numerous Security Council initiatives during the Korean War, the UN General Assembly adopted a resolution known as “Uniting for Peace” (UNGA Res 5/377), which stated that if the Security Council fails to exercise its primary responsibility to act as required to maintain international peace and security due to lack of unanimity of the permanent members, the General Assembly should take over to keep the impetus for peace. While a Military Demarcation Line was drawn on land at the time the Inter-Korean Armistice Agreement was signed on May 27, 1953, such Demarcation Line did not extend into maritime areas. The seaward extension, known as the Northern Limit Line (NLL) which was drawn by UN Commander General Mark Clarke in 1958, has remained contentious and caused confrontations between the two Koreas as the NLL was not officially part of the Armistice Agreement.
Some key Inter-Korean issues, among others, include statehood and recognition as well as legal characteristics of the agreements signed by the two Koreas. An issue arises from the provision of the Constitution of the Republic of Korea which stipulates that the territory of the Republic of Korea shall consist of the whole Korean Peninsula while the two Koreas were respectively admitted to the United Nations at the same time.
The UN membership issue raised a legal question as to whether the Republic of Korea recognized North Korea as a state. The issue gets more complicated as a question also arises as to the legal characteristic of the Agreement on Reconciliation, Nonaggression, and Exchanges and Cooperation between the South and the North, (known as the Inter-Korean Basic Agreement) signed in 1991, which recognizes that relationship between the two Koreas is not a relationship as between states, but rather as a special one constituted temporarily in the process of unification.
5.3 Law of the Sea
Situated at the center of the Northeast Asian Seas, the waters that surround three sides of Korea are important for economic, military and strategic concerns. Such concerns embrace a wide range of maritime issues including maritime delimitations and competition for marine resources. Korea has engaged in important legal matters pertaining to the Law of the Sea that are of vital importance especially in relation to maritime delimitation in the zones established by the UN Convention on the Law of the Sea.
There remains the issue of maritime delimitation due to overlapping claims over the continental shelf with the neighboring countries such as between Korea and China in the West Sea and between Korea and Japan in the East Sea. The contribution on the part of Korea in relation to maritime issues includes its active engagement in international efforts to protect marine safety and marine environment. Since Korea joined the Convention on the International Maritime Organization, Korea, as a member of the A category Council with the largest interest in providing international shipping services, has been leading the development of maritime technology such as e-navigation, eco-friendly vessels and autonomous vessels technology.
5.4 Democracy and International Human Rights Law
The development of human rights in Korea is closely related to the development of democracy in Korea achieved through the mass protest against dictatorship and military regime from the 1960s to the 1980s. With the development of democracy in Korea since early 1990s, Korea began to accept major international human rights treaties, ratifying the International Covenant on Civil and Political Rights (ICCPR) and its Protocol in 1990, and the International Covenant on Economic, Social and Cultural Rights in 1990.
Since then, Korea became the party to major international human rights treaties such as the Convention on the Rights of the Child (1991), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1995), the Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in Armed Conflict (2004), and the Convention on the Rights of Persons with Disabilities (2009). In 2001, the National Human Rights Commission was established as a national human rights advocacy institution along with several truth and reconciliation commissions to investigate human rights violations under previous authoritarian regimes. One of the recent human rights issues include the right to conscientious objection to military service. Conscientious objection has been a topic of much debate in Korea for decades, especially in cases involving Jehovah’s Witnesses. The Supreme Court and the Constitutional Court have consistently affirmed the punishment of conscientious objectors under Korea’s Military Service Act. However, in 2018, the Constitutional Court held that the Korean law that did not recognize conscientious objection was not consistent with the Constitution. In the same year, the Supreme Court ruled that conscientious objection was justifiable under Military Service Act.
Acknowledgments
The authors would like to acknowledge Buhm-Suk Baek, Professor of Public International Law at Kyung Hee University, and Seryon Lee, Professor of Law at Jeonbuk National University School of Law, for their contributions to this article from their work in the Encyclopedia of Public International Law in Asia.