1

A Japan-South Korea Dispute Hundreds of Years in the Making

August 26, 2019 Topic: Security Region: Asia Blog Brand: Korea Watch Tags: JapanSouth KoreaROKHistoryTradeComfort WomenGSOMIA

A Japan-South Korea Dispute Hundreds of Years in the Making

If the United States wishes to see the survival of a strong trilateral alliance in East Asia, Washington needs to take a stronger stance in bringing the two sides to a mutual resolution, even if such a resolution is short-term.

Tensions between Japan and South Korea spiked once more last Thursday when the Blue House announced their intention to step out of the General Security Military Information Agreement (GSOMIA)—a military information-sharing pact that allows Japan and South Korea to share intelligence on matters of mutual security concerns, such as North Korean missile launches.  

The Japan-South Korea dispute initially began to escalate in July, when Japan imposed export controls on Seoul for three chemicals crucial to semiconductors and displays—key components of the South Korean electronics industry. Shortly afterward, Tokyo removed South Korea from its “white-list” of trading partners, ending both preferential treatment and eased trade restrictions with Japan. Seoul responded in turn, slashing Japan from its own preferred trading list and placing the nation in a newly-formulated “third category” trade status.

Tokyo denies expelling Seoul from the white list as a retaliatory measure and instead cited security concerns as the motive for the removal. However, there is reason to believe otherwise. For one, the dispute came just weeks after a historic South Korean Supreme Court decision requiring Japanese companies like Nippon Steel (NSC) and Mitsubishi Heavy Industries (MHI) to pay thousands of dollars in reparations to Korean forced laborers made work for Japan during World War II. Due to further appeals and companies’ unwillingness to pay damages, later court decisions ruled that victims had a right to seize and liquidate the offending companies’ assets in South Korea, sparking outrage from Japan.

However, even if that court case was not the exact spark that set-off this current dispute, South Korea’s decision to leave the GSOMIA is of even greater concern. A rupture in the Japan-South Korea alliance shows signs of disrupting diplomatic relations between two of Washington’s closest allies in East Asia, and could be of grave consequence to regional security. With the United States in an ongoing trade war with China, multiple missile tests by a North Korea increasingly reluctant to negotiate, and massive protests in Hong Kong, the time for a sustainable resolution has never been more pressing.

If the United States wishes to see the survival of a strong trilateral alliance in East Asia, Washington needs to take a stronger stance in bringing the two sides to a mutual resolution, even if such a resolution is short-term. This will not be easy, but it is necessary. Despite the recency of the escalations, many of the core issues in question occurred decades ago and are deeply entrenched in feelings of anger and resentment over Japanese Imperialism. Complete reconciliation will require behavioral changes from Tokyo, and a domestic willingness to forgive the crimes of the past in South Korea. As such, carefully negotiated short-term deals may have to become the life-blood of South Korea-Japan relations in the near future, before a long-term solution is found.

On Normalizing Relations and South Korea’s Perspective: 

The chief disagreement between Tokyo and Seoul lies within the details of the 1965 Treaty on Basic Relations between Japan and the Republic of Korea. Japan has argued that Article II of the treaty bars South Korean individuals from seeking compensation for incidents that occurred before August 15, 1945, but South Korea’s most recent supreme court ruling on forced labor says otherwise.

Indeed, the language of the treaty states that issues between South Korea and Japan are resolved upon its signing. It follows:

1. The Contracting Parties confirm that [the] problem concerning property, rights and interests of the two Contracting Parties and their nationals (including juridical persons) and concerning claims between the Contracting Parties and their nationals, including those provided for in Article IV, paragraph (a) of the Treaty of Peace with Japan signed at the city of San Francisco on September 8, 1951, is settled completely and finally.

However, the language of this treaty leaves out the context of its signing, an aspect that is crucial to understanding why historical grievances have been surfacing in recent years. For instance, during the mid-1960s Japan was in a much stronger position than South Korea economically, which gave it significant leverage in bargaining with its neighbor. Additionally, while the South Koreans periodically brought up issues like forced labor in the negotiation process, some scholars have suggested that the Japanese acted in bad faith by requesting evidence to prove that such labor existed—evidence Tokyo knew that only Japan had.

Notwithstanding the circumstances, it’s important to note that Seoul’s position on the treaty did not change overnight. In fact, up until the mid-2000s, South Korean courts refrained from granting reparations to victims of forced labor and other wartime grievances under the provisions of the 1965 Claims Settlement Agreement, just like Japanese courts did. The major shift came under the Roh Moo-hyun administration, during which Roh authorized the release of thousands of documents leading up to the 1965 agreement. These documents gave South Koreans context and information that they had previously been in the dark about. Additionally, South Korea established a Joint Private-Government Committee on Measures Pursuant to the Publication of Documents on South Korea-Japan Talks in 2005 to ascertain the validity of Japan’s assertion that all wartime disputes have been settled.

That committee found that although some cases of forced labor were settled under the provisions, the same could not be said about issues concerning Korean “comfort women” who were forced into sexual slavery, atomic-bomb victims, and the forced mobilization of Koreans to Sakhalin. The committee’s conclusion lead to a landmark decision by the Constitutional Court of South Korea that Seoul’s passiveness in settling the dispute on behalf of victims was unconstitutional.

The Japanese Perspective:

Japan is largely concerned with the precedent that South Korea’s recent court rulings have set and takes issue with what it perceives are efforts to preserve Tokyo’s position as a perpetual apologist. The case in question was the first in which South Korean clients have successfully used a shift in precedent against a Japanese company and won. Further still, appellate courts have ruled that if companies refuse to pay the victims, they have the right to seize the company’s assets in South Korea. With around a dozen similar lawsuits in courts, it’s no wonder Japan is worried that the tides have been turned in favor of South Korean plaintiffs.

The verdict could open up the floodgates for other victims and their relatives, totaling more than 220,000 individuals who could potentially file lawsuits against approximately 300 Japanese companies. The reparation cost could swell to $20 billion or more. And, because South Korea’s highest court ruled to disregard an international treaty, it has opened the door for similar cases to arise in other countries occupied by Japan, such as China and the Philippines.

In statements regarding the conflict, Japan has brought up the 1965 treaty (and normalization of relations) with South Korea, citing that in signing the agreement, South Korea relinquished its citizens of the right to sue for damages incurred before August 15, 1945. In fact, after the final appeal by Nippon Steel was rejected this July, Japan extended an offer for third-party arbitration at an international court, an offer that was denied by South Korean officials.

Therefore, for Tokyo, the move to remove South Korea from its white list was a point of principle. Japan feels as though South Korea is targeting it for issues that were resolved during the 1965 agreement, and fears reparations cases that could hurt its companies and economy. Furthermore, there is a sentiment in Japan that future generations should not have to pay for the sins of their ancestors.

A Controversial Ruling: 

Cases similar to the ones for which Nippon Steel and Mitsubishi were indicted were first brought to trial in Japan in 1995. Though most of these cases were later dismissed, the intricacies of the appeals processes are much more complicated. For instance, despite losing the trial against Nippon Steel in 1997, negotiations with plaintiffs outside of the courtroom were held in September of the same year. During these negotiations, Nippon Steel settled with the families of victims by paying them consolation money and even arranging funeral processions for the deceased workers.

South Korea’s high court upheld the lower court’s decisions for a few reasons. First, the Claims Agreement does not explicitly reference the innate illegality of Japan’s colonial rule in Korea, therefore an individual’s right for compensation for forced labor is not waived under 1965 Basic Treaty. Second, “a defense based on the expiration of the statute of limitations amounted to an abuse of right because the factual circumstances would bar the plaintiffs ... from exercising their right to seek compensation.”

A Question of Sincerity: 

While Japan has issued multiple apologies for its wartime atrocities in South Korea since the 1960s, some of Tokyo’s actions make it difficult to assess sincerity, creating rifts between formal apologies. For instance, despite former Minister of Foreign Affairs Fumio Kishida’s 2015 joint statement with former South Korean Foreign Minister Yun Byung-se condemning Japan’s wartime actions as a “grave affront to the honor and dignity of large numbers of women,” the Japanese government refused to further negotiate and take additional reconciliatory measures when surviving comfort women criticized the apology. They believed that the issue was “irreversibly resolved” after a 1 billion yen fund had been established to help the victims.

Similar actions have been taken by Japanese provincial governments when the comfort women issue has resurfaced. In 2018, following a move by San Francisco to declare a statue of comfort women from Korea, China, and the Philippines as a public monument, Osaka’s mayor stripped the city of its sister city status, stating that the “Japanese Government holds a distinctive standpoint on perceiving history” and there is “disagreement among historians when regarding the historical facts such as the number of ‘comfort women,’ the degree to which the former Japanese Army was involved, and the extent of the wartime harm.”

Indeed, Japanese Prime Minister Shinzo Abe’s remarks on the seventieth anniversary of Japan’s defeat—noticeably different in tone from previous apologies—appeared to worsen worries among some that Japan’s war crimes are over time, being pushed aside. Abe stated, “We must not let our children, grandchildren, and even further generations to come, who have nothing to do with that war, be predestined to apologize,” Abe stated.

History Wars, Without End: 

Though the current dispute hinges solely on the issue of forced laborers, diplomatic rows between Seoul and Tokyo concerning Japanese war crimes have been around for decades. Of these disputes, one that has gained a significant amount of traction is the issue of “comfort women.” While the Japanese government has claimed that the 1965 Treaty on Basic Relations signed by the Park Chung-hee administration also settled all individual legal claims surrounding the comfort women issue, such statements do little to frame the context of the agreement’s signing and the reforms that occurred in South Korea in the following decades. The Japanese government also maintains that the treaty settled all war debts, and any future disputes would be resolved bilaterally.

The 1965 agreement entailed $800 million ($6.5 billion adjusted for inflation) in economic aid from Japan to South Korea. $300 million of those funds were were outright grants and the total aid added up to over a quarter of South Korea’s GDP at the time. Nevertheless, many Koreans believe that the treaty is invalid due to the fact that the funds that were supposed to be used to compensate victims directly were instead spent on investing the capital into the South Korean economy.

Although the funds provided the very foundation for South Korea’s economic development in the 1960s, many people in South Korea still believe that it was more of a government-to-government agreement which did not properly compensate the victims due to the Park Chung-hee administration’s authoritarianism and lack of transparency. Another concern is that the treaty was reached during a time when South Korea was still undergoing an economic recovery that left it with less bargaining power than Japan. Furthermore, the treaty contained broad language that did not specifically state that the funds were payment for the atrocities committed by the Japanese during the colonial era, casting doubt about its validity.

Following democratization processes in the 1990s, more South Koreans found a willingness to voice criticisms concerning comfort women and the lead-up to the 1965 Claims Agreement. Such vocalizations were not allowed under the Park administration, which regularly cracked down on dissidents. As a result of South Korea’s eventual newfound openness, lawsuits were filed against the Japanese government and former comfort women were able to find platforms to share their stories.

Meanwhile, the Japanese government still asserts that the 2015 agreement between the two countries is a “final and irreversible solution” to the comfort women dispute. This is because Tokyo believes that agreement consisted of a more direct apology when one was lacking during the previous decades. The agreement even led to the establishment of the Reconciliation and Healing Foundation which was funded by the Japanese government to support the Korean victims. The foundation’s official responsibilities were first implemented in July 2016 using the $8.8 million budget provided by Tokyo—about half of which was given to thirty-four survivors and the families of those who had passed away. 

Taking such information into account, Japan surely has a valid point. However, what angered the Korean people was the fact that the deal was still a heavily government-to-government affair that set aside public opinion as another matter. What seemed to have been more urgent for the South Korean government was the short-term diplomatic and geopolitical gain from Japan in the face of a rising North Korean threat and growing concerns over China—not addressing each victim’s lost dignity. This anger was reflected in a poll released in December 2016 that indicated that a majority of South Koreans still saw the agreement as invalid. Clearly, the deal lacked public support and in the minds of South Koreans, it was not “a final and irreversible resolution” after all. South Korean President Moon Jae-in, a former human rights lawyer, strongly supported this shared sentiment which led to the dissolution of the Reconciliation and Healing Foundation in November 2018.

The Apology Paradox: 

The root of the Reconciliation and Healing Foundation’s dissolution lies in a particular point of principle that is highly contentious in both South Korea and Japan: apologies. One of the major requests that comfort women have made since the issue surfaced is a formal apology from the Japanese government recognizing the pain and suffering that these women and around 200,000 like them had gone through. 

This is where the situation gets more complicated, as Japan has issued multiple formal apologies for comfort women, including the aforementioned apology issued by Japanese foreign minister Fumio Kishida under the provisions of the 2015 agreement. However, surviving comfort women want a specific type of apology: one addressed to them individually, from the Japanese government. If not individual apologies, victims have cited that at the very least they need an apology that acknowledges the government’s role in the creation of comfort women. For instance, Tokyo has so far danced around formally stating that the Japanese Imperial Army had a role in creating “comfort stations.”

Unfortunately, such requests for apologies have been routinely denied by Japanese courts since the 1990s. Herein lies the problem: for many victims, monetary compensation is far second to a restoration of their dignity. When the Abe administration undertakes such actions as formally investigating the veracity the Kono Statement, a landmark apology by former Japanese chief cabinet secretary, they undermine the purpose of an apology in the first place.

The Consequences: 

In removing South Korea from its white-list, Japanese companies must now apply for permits to export essential material like fluorinated polyamide—a common material in high-temperature fuel cells and electronic displays—of which Japan produces 90 percent of the world’s supply. On the one hand, companies like Samsung have stockpiled around one to three months worth of supplies and Japan has authorized its first shipment of high-tech chemicals since removing South Korea from its list. But, on the other hand, worldwide consumers can expect a major hike in the price of electronics if tensions escalate in the future and permits are not granted on time.

South Koreans’ boycotts on Japanese products and travel to Japan are also starting to show tangible impacts on the Japanese economy. Tourists arriving in Japan from South Korea have dropped around 7.6% in July alone, and sales of Japanese beers at some of South Korea’s most popular convenience stores have plummeted more than 21% since the first week of July.

Furthermore, “travel warnings” on Seoul have been recently issued by Japan. In response, on August 5, South Korea has stated that they are also considering putting a travel warning on Tokyo due to higher radiation levels in Tokyo following the Fukushima disaster. Though Seoul has since stood down on decisions to issue travel warnings to Tokyo, South Korean officials have announced plans to run a separate cafeteria exclusively for South Korean athletes in an effort to prevent them from consuming products from Fukushima.

Not only will this quarrel affect the global electronics sector, but also the stability of North East Asia. U.S. Secretary of State Mike Pompeo tweeted after the recent ASEAN meeting that the trilateral relationship is “strong and will be critical” to the denuclearization of North Korea. If all three countries are to get along to play such a crucial role, a solution to the South Korean-Japanese dispute is vital.

A Path Forward: 

Although both Japan and South Korea have taken actions that have escalated tensions, it is important to note that the Japanese government took the initial step in bringing the conflict into the realm of national security. And, though Tokyo has denied a link between the South Korean court rulings and Japan’s decision to scrap Seoul’s place in its white list, there is little evidence to support the Japanese government’s claims that South Korea doesn’t properly manage its strategic materials. While South Korea’s choice not to renew the GSOMIA may be motivated by tension with Japan, any actions by the United States to resolve conflict in the region must be informed by the context in which the decisions of its allies were made.

Though the dispute is clearly based on specific historical grievances between Japan and South Korea, it would be a misstep for the United States to evade the dispute altogether and leave the two nations to sort things out on their own. In fact, it is a grave error to dismiss Washington’s potential role in mediating as a form of “babysitting,” as doing so would be overlooking the significant role Washington had in brokering the initial agreement between Seoul and Tokyo.

Considering all of the various potential challenges confronting the Trump Administration in East Asia—U.S.-China trade tensions, North Korea’s nuclear program, tensions over the South China Sea and Taiwan—Washington can ill afford its two most critical allies in Asia at loggerheads. Now is the time for America to get involved. Whether behind the scenes or publically, Washington must help bring both sides together, cool tensions and at least help formulate an agreed framework to work out solutions for both sides. That is the only way to avoid further damaging to South Korean-Japanese relations that could take years to fix. The alternative is to let two of Washington’s allies drift further apart with only Beijing and Pyongyang benefiting.

Harry J. Kazianis (@Grecianformula) serves as Senior Director of Korean Studies at the Center for the National Interest. John Grover (@JohnDaleGrover) is a Korean Studies Fellow at the Center. Adriana Nazarko and Dong Geon Lim are Korean Studies Summer Research Assistants.

Image: Reuters .