“Much as we may feel for the plight of the (comfort women), the court of the United States simply is not authorized to hear their case.” 

That was the final sentence of the judgment of the U.S. Court of Appeals for the D.C. Circuit in Hwang Geum Joo et al. v. Japan issued in June 2005, which was one of the several litigations pursued in the U.S. courts by former “comfort women,” victims from Korea, Taiwan, the Philippines and China. The case was dismissed as the court decided that it did not have jurisdiction to issue a judgment against a foreign country based on the concept called “sovereign immunity.” The U.S. court did not exonerate Japan’s wartime atrocities, but ruled that a proper forum to address this issue was the state-to-state discussion between Korea and Japan.

The state-to-state discussion has become the newest topic in the Korea-Japan bilateral agenda. On Aug. 30, the Korean Constitutional Court declared it unconstitutional for the government to have failed to pursue the compensation from Japan on behalf of the former comfort women because such inaction had amounted to violation of the constitutional rights of these victims. Pursuant to the mandate from the nation’s highest court, Seoul requested initiation of consultation with Japan on Sept. 15 in accordance with Article 3 of the Claims Settlement Agreement attached to the 1965 Korea-Japan Basic Relations Treaty. The request, however, was promptly rejected by Tokyo.

The request and refusal last week in fact raised a complex legal issue: whether the 1965 Korea-Japan Claims Settlement Agreement settled all claims between the two countries including those held by individual private persons. In fact, Article 2 of the agreement provides that “the problems concerning property, rights and interest of the two Contracting Parties and their nationals … and concerning claims between the Contracting Parties and between their nationals … are settled completely and finally.” Korea takes the position that private persons’ rights were not settled by the agreement, so they can pursue their claims on their own subsequently. Japan’s position is exactly opposite.

The provision is indeed vague in terms of the scope of the settlement. A plausible interpretation, however, seems that both countries agreed to give up state-owned properties and rights in the other’s territory, and the states’ right to seek redress on behalf of their nationals. But the settlement did not include the claims individuals may have possessed vis--vis the other’s government.

As a government’s property and rights and an individual’s property and rights are conceptually distinct, one cannot contract away the other’s property or right without clear consensus or language to that end. Arguably, consensus can hardly be found because this issue of giving up individuals’ rights was not on the negotiating table during the 1965 negotiations. Nor was a clear wording to that effect inserted to the treaty: for instance, the two countries could have said that individuals’ own rights were waived or relinquished.

The limited scope of Article 2 of the Korea-Japan agreement is conspicuous when compared to Article 14 (b) of the 1951 San Francisco Peace Treaty between Japan and the Allied Powers which provides that: “the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any action taken by Japan and its nationals in the course of the prosecution of the war … ” Here, arguably the waiver of individuals’ own rights through the treaty is expressly mentioned.

This is further evidenced by Japan’s position in other treaties. As regards a similar claims settlement issue between Japan and Russia, Japan has taken the position that individual Japanese rights have not been renounced because of the 1956 Japan-USSR Joint Declarations which contains a similar provision.

As the cardinal rule of treaty interpretation accords a significant weight to the parties’ intention when terms of a treaty are ambiguous, both Korea’s and Japan’s positions should be carefully examined to elicit and confirm the intention of the two countries in 1965. Taken as a whole, at least it is not clear whether both countries at that time relinquished the rights of individuals on behalf of them. In the absence of clear language, the presumption should be that the rights of the individuals were not liquidated by the governmental action.
Furthermore, the argument that comfort women’s right to compensation was “completely and finally settled” back in 1965 seems too detached from reality. The factual record itself cries out that “complete and final settlement” has not been achieved yet, at least to the extent this very issue is concerned. The situation where victims going to all levels of courts in Korea, Japan and third countries for help is no way near to “complete and final settlement.” As people say: “It ain’t over till it’s over.” Confronting this issue head on appears to be the only viable way to attain complete and final settlement. 

By Lee Jae-min

Lee Jae-min is a professor of law at the School of Law, Hanyang University, in Seoul. Formerly he practiced law as an associate attorney with Willkie Farr & Gallagher LLP. ― Ed.