Former Director of the Treaties Bureau at the Japanese Foreign Ministry
Japan-ROK relations have soured over issues surrounding the so-called “wartime comfort women” and forced laborers. Regarding the issue of forced labor, the Abe administration insists that “past individual claims have been fully addressed by the Claims Settlement Agreement signed between the two countries in 1965.”
As I served 25 years at the Foreign Ministry, of which 9 years were at the Asia Bureau and Treaties Bureau, I do understand the reasoning put forth by the Japanese administration which believes that this issue has been resolved through the Claims Settlement Agreement in 1965.
At the time, the general international view was that states could settle individual claims on behalf of their nationals, which also served as the basis for claims settlement clauses in the Treaty of San Francisco through which Japan gained independence.
Thus, Japan argues that it addressed the individual claims of former South Korean laborers in 1965 in accordance with the prevailing international view following the Treaty of San Francisco. This argument was not merely supported by Japan alone, but was acknowledged by the international community. However, such view lost ground after the International Human Rights Law was established.
South Korean President Moon Jae-in also stated that “It is hard to understand Japan’s argument especially when we have established concepts of international human rights and humanitarian principles.” These concepts can be referred to in detail in the International Covenant on Civil and Political Rights, or Covenant B.
Japan joined the Covenant in 1978, but I was at the forefront of efforts to secure congressional approval of this Covenant that very year, as I served as the Deputy Chief for International Agreements at the Treaties Bureau. That is why I have a personal attachment to this treaty. Yet, it doesn’t make sense to me that there is no mention of this Covenant when discussing thorny issues between Japan and South Korea.
Article 2 (3) of Covenant B stipulates to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”
When it comes to the issue of “wartime comfort women” and forced laborers, Article 7 and Paragraph 3 (a) of Article 8 holds significance to “persons” whose “rights” and “freedoms” are violated. Article 7 prescribes that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
This is exactly in line with the issue of “wartime comfort women.” Meanwhile, Paragraph 3 (a) of Article 8 stipulates that “No one shall be required to perform forced or compulsory labour.” This clause applies to the issue of forced laborers.
Therefore, it can be clearly stated that former “wartime comfort women” and forced laborers have the right to request the Japanese government to provide effective relief measures. In fact, since the International Human Rights Law was enacted, relief measures have been taken across the globe for victims of past violations of human rights set forth in the International Covenant on Civil and Political Rights.
For instance, the Australian, Canadian, New Zealand, and US government offered official apologies and compensations for the aboriginal people. The American government apologized and paid compensation to Japanese Americans who were sent to internment camps during World War II. Another case in point is the “Remembrance, Responsibility and Future Fund” that Germany created to compensate victims of forced labor during WWII.
Given that countries across the globe took such measures of apology and reparation for state-committed violations following the enactment of the International Human Rights Law, there is no question that Japan should also apologize to South Koreans who were forced to work as “wartime comfort women” and forced laborers.
Another important point to note is that the Japanese government has made it clear that only the individual right to diplomatic protection has been waived by the Claims Settlement Agreement signed with the ROK and the Joint Declaration concluded with the former Soviet Union.
Individual claim itself, on the other hand, does not expire with the agreements. This was reaffirmed by then-Director of the Treaties Bureau at the National Diet of Japan on Aug. 27, 1991. I believe this reflects the change of course the Japanese government decided to take based on the understanding that given the international trend following the International Covenant on Civil and Political Rights, it can no longer cling to the argument and view that it had insisted on when signing the Treaty of San Francisco.
The South Korean Supreme Court ruled in favor of former South Korean forced laborers who demanded that Japanese companies that engaged in forced labor, including Nippon Steel and Mitsubishi Heavy Industries, have their assets seized and take relief measures to compensate for their past human rights violations.
Given the statement made by the Japanese Foreign Ministry at the National Diet of Japan in 1991, this judgement cannot be refuted, and cannot but be recognized. Nevertheless, since this issue came to the fore, the Abe administration has kept its silence. This is deeply unfaithful, and unacceptable.
In any case, provisions in the International Covenant on Civil and Political Rights upends the conventional view that “states can settle individual claims on behalf of their nationals.” This is a significant point. It is truly regretful that everyone stresses the importance of human rights while being ignorant on the International Covenant on Civil and Political Rights. This is the first point that I would like to set forth as evidence.
The Abe administration also stated that it “applied the provision on security exceptions that involve national security interests” when defending its retaliatory measures against the ROK such as removing South Korea from its whitelist of preferred trading partners. It is true that there is a clause on free trade in Article 21 (b) (ii) of the General Agreement on Tariffs and Trade (GATT) which prescribes that “members are able to circumvent the spirit of free trade if it considers necessary for the protection of its essential security interests.”
Yet, “security exceptions” refer to matters that gravely threaten national security interests. What the Abe administration cites to back its claims is that the ROK allegedly exported 3 items that it imported from Japan to North Korea, which is in no way clear evidence.
Furthermore, although the Abe administration claims that it wishes to hold talks with Kim Jong-un without any pre-conditions, it has irritated North Korea by citing security exceptions when sanctioning South Korea, which is another way of saying South Korea “smuggled out items to North Korea.” North Korea would consider that the Abe administration is treating it as an enemy despite all the overtures. This was yet another example of Abe administration’s poor and ill-prepared response.
That given, South Korea makes full sense while Japan ought to take full accountability. Such actions taken by the Abe administration against the Republic of Korea are unacceptable.