Picture the following: A treaty is negotiated and concluded by a duly authorized government representative. The treaty is then applied and implemented for the next five decades. In the interim, the government maintains a shared understanding and expresses a settled position about the meaning of the provisions of the treaty. Diplomacy is conducted and policies formulated therefrom. Five decades later, the judicial branch enters the scene and declares that the government’s interpretation is in fact wrong and replaces it with a new one. What next, then? Should the government press the rewind button to go back to Day 1 and start the diplomatic business all over again? Of course this is theoretically possible, but it is practically infeasible.

Now put the following into the frame. In the now well-known decision of May 2012, the Supreme Court declared that individual claimants are still entitled to compensation from Nippon Steel Corporation and Mitsubishi Heavy Industries for forced labor during the World War II period. Unfortunately, this decision contradicts the government’s long-held stance that this particular issue was resolved by the 1965 Korea-Japan Claims Settlement Agreement. To paraphrase the 2005 report of the Government Task Force on this point: the forced labor issue was covered by the 1965 agreement; those left out of the agreement were only “comfort women” victims, Sakhalin draftees and atomic bomb victims. The decision of the nation’s highest court does discuss the government’s position as such but then disregards it as erroneous.

The judicial branch’s replacing the government’s official interpretation with its own is indeed a rare, if not unprecedented, incident. Obviously, doubts may be raised as to the wisdom of the court’s active intervention in a fundamentally diplomatic issue. It is not uncommon to observe courts in many jurisdictions refrain from rendering decisions on diplomatic issues by dubbing them political questions or something along those lines. Regarding the case at hand, questions are raised as to whether the judicial branch can declare what the underlying intent of a treaty was in the face of the government’s position.

After all, it was the government that negotiated and implemented the treaty for half a century. Should it be a legal issue, the judicial branch can and should declare what the law is in the country. Since the core question concerns the intent of the government in a highly complex diplomatic issue, perhaps the executive branch’s position is entitled to high judicial deference.

On a procedural note, the judicial review here has not been completed yet. After the May 2012 decision, the cases were then remanded to the High Courts (Appeals Court) for new analyses. On remand, the Seoul High Court and the Busan High Court ruled for the plaintiff last July in their respective cases. Mitsubishi and Nippon Steel appealed the High Courts’ decisions and the cases are now back in the Supreme Court docket again, awaiting a final disposition by the court.

Since the original decision was rendered, it has become one of the most frequently discussed topics among practitioners and academics in this field. In fact, the decision is partly attributable to the government’s inaction. While the government’s intent and positions were being discussed in proceedings, submission of an opinion statement or other documentation by the government, which is usually expected in this kind of context, did not take place.

Attention is now turned towards the Supreme Court’s disposition of the issue in its second deliberation. How this issue will be dealt with is not entirely clear. Before the court reaffirms its decision in the second review and issues a treaty interpretation that is not compatible with the government’s long-held position, a thorough discussion of the government records and documents should take place. At least a more detailed and refined analysis than the first one is in order so as to avoid unintended repercussions.

By Lee Jae-min 

Lee Jae-min is an associate professor of law at Seoul National University. ― Ed.