Media  Foreign Affairs and National Security  2018.11.13

Seoul moves the goalposts yet again

the japan times on November 6, 2018

I am writing this piece on an ANA flight from Washington to Narita. My uncontrollable curiosity about what's happening in the United States made this trip my third in the last six months. What I found this time, however, was shocking. This city does not represent "real America" -- which only exists outside the Beltway.

Washington is not leading the nation now. It is the "real America," especially outside the big cities, that is transforming this nation's capital. It was a shock but no surprise, since I wrote as early as 1994 that if you want to know about real America, leave D.C. and visit rural areas in other states. I was a young diplomat but was not mistaken.

This, however, is not the only "shock but no surprise" recently. To name a few, 11 Jewish Americans were brutally killed inside a synagogue in Pittsburgh. A New York Times article wrote it was "a shock but not a surprise." I agree with my deepest condolences. It had been feared and must have been just a matter of time.

Another shock but no surprise was the announcement by Angela Merkel of Germany that she would quit as head of the ruling Christian Democratic Union and not seek re-election as chancellor in 2021. She was the mother of stability not only in her country but also for all of Europe. Her election defeat and her decision to quit had been predicted by many people. In a sense, so too was the murder of Jamal Khashoggi in the Saudi consulate in Istanbul.

The "most shocking but no surprise" event to me, however, was the ruling by South Korea's Supreme Court on Oct. 30. It ordered a major Japanese steel maker to compensate the "victims of forced labor" during the period when Japan controlled the Korean Peninsula.

Tokyo's reaction was unprecedented. Prime Minister Shinzo Abe said Japan will respond "resolutely" and the ruling was "impossible in light of international law." Foreign Minister Taro Kono said the judgment "has one-sidedly and fundamentally damaged the legal foundation of Japan-South Korea relations." They are not bluffing.

Kono said in his statement that the "decision is extremely regrettable and totally unacceptable" and "clearly violates Article II of the bilateral agreement signed in 1965, inflicts unjustifiable damages and costs on the Japanese company and completely overthrows the legal foundation of the friendly and cooperative relationship."

The Moon Jae-in administration has not been eloquent on this matter. South Korea's foreign minister reportedly told his Japanese counterpart that his government would "respect the Supreme Court's verdict but would also prepare measures to deal with the ruling after comprehensively considering various factors."

Do you understand what the South Korean foreign minister meant? I don't. Many articles have been written on this issue in the Korean, Japanese and English-language media but few seem to hit the nail on the head. As a former diplomat with some knowledge and experience in international legal matters, the following is my take.

1. This is ultimately a legal issue

When Japan argues that all compensation claims had been "settled completely and finally" by the 1965 bilateral agreement, it means it. The agreement was ratified by the two nations and properly went into effect. It is a legally binding international treaty that South Korea has been committed to so far -- at least until recently.

Article II stipulates, "the problems concerning property, rights and interests of the two countries and their nationals (including juridical persons) as well as concerning claims" between the two countries and their nationals are "settled completely and finally," and "no contention shall be made thereof." Isn't this crystal clear?

2. No "rule of law" in South Korea

Anyone who studied international law comprehends what this means. Many responsible officials in the South Korean government, especially diplomats in the foreign ministry, must be fully aware of this as well. If they keep silent over South Korea's legal obligations and seek political solutions, there is no "rule of law" in South Korea.

3. The judiciary branch of South Korea might be "politicized."

In the 1970s, the Japanese Supreme Court issued a statement that judges were not supposed to join any organization with political inclination because that would undermine the impartiality of the judiciary. The ruling of the South Korean highest court suggests that their judiciary branch might have been unduly politicized.

4. Moving the goal post once again

If you say Japan has not learned a lesson from history and should do more, you are missing the point. I say, "Here they go again, moving the goalposts." This is not the first time for South Korea to break promises or undo agreements. The following is what ordinary Japanese think happened during the past five decades. In 1965, South Korea and Japan, after long serious negotiations, agreed to normalize relations. Since 1995, acknowledging "tremendous damage and suffering to the people of many countries, particularly those of Asia," Japan's prime ministers have expressed their "deep remorse" and "heartfelt apology." Unfortunately, South Korea has never said it accepts Japan's apologies. Moreover, as for the "comfort women" issue, Japan and South Korea agreed at the end of 2015 that "the issue is resolved finally and irreversibly." In 2018, Seoul reviewed the agreement and requested Japan to "apologize more wholeheartedly."

5. Let's take this to the International Court of Justice.

A friend of mine in Washington called the South Koreans "professional victims." If they remain obsessed with the past and do not respect the rule-based international system, they are committing international political suicide. As Kono hinted in his statement, Japan may have to resort to "international adjudication."

Of course, this is not what we really want to do. We don't wish to see the people of our friendly neighbor lose face in the International Court of Justice. What we want to see is for the current administration of South Korea to abide by international law so that it will truly become a member of the civilized international community.