Here’s a pair of arti­cles about a long run­ning dis­pute between Japan and South Korea that could end up becom­ing a kind of inter­na­tion­al dis­pute because Japan wants to take it to the UN’s Inter­na­tion­al Court of Jus­tice. It also echoes the issue of the US fed­er­al gov­ern­ment block­ing law­suits by US pris­on­ers of war who tried to sue the gov­ern­ment of Japan in the 90’s which is an impor­tant con­text for this sto­ry, espe­cial­ly because this dis­pute could end up get­ting resolved at the UN:

In 2005, four South Kore­ans sued Nip­pon Steel & Sum­it­o­mo Met­al Cor­po­ra­tion over the forced labor they endured dur­ing the Japan­ese occu­pa­tion of Korea. The suit was filed in South Kore­an courts after the plain­tiffs lost a law­suit filed in Japan. In Octo­ber of 2018, a South Kore­an court ruled in favor of the plain­tiffs.

This set off an uproar in Japan. As the fol­low­ing arti­cle notes, Japan is accus­ing South Korea of try­ing to try­ing to shift South Korea’s respon­si­bil­i­ty over forced labor. How is Japan mak­ing that par­tic­u­lar argu­ment? Well, this is where it gets inter­est­ing an rather grim and might involved the inter­na­tion­al crim­i­nal court. Japan is argu­ing that it resolved all lia­bil­i­ties it had over WWII human rights abus­es in South Korea with the treaty the two coun­tries signed in 1965 that estab­lished a basic diplo­mat­ic rela­tion­ship between the two coun­tries fol­low­ing WWII. Japan argues the treaty addressed its oblig­a­tions to com­pen­sate Korea for the colo­nial peri­od start­ing in 1910 when Japan occu­pied the coun­try. In the treaty, Japan paid $300 mil­lion (about $2.3 bil­lion today) and loaned an addi­tion­al $500 mil­lion to South Korea to set­tle those claims. There­fore, accord­ing to Japan, it’s oblig­a­tions over that wartime peri­od have been resolved accord­ing to inter­na­tion­al law.

South Kore­ans have a very dif­fer­ent take on the mat­ter. For starters, in 1965 South Korea was run by the dic­ta­tor Park Chung-hee who has just come into pow­er two years ear­li­er in a coup. He was also a for­mer impe­r­i­al Japan­ese mil­i­tary offi­cer. The treaty of 1965 was nego­ti­at­ed in pri­vate and mar­tial law had to be declared fol­low­ing the protests after it was signed. So, on the sur­face, the treaty of 1965 had very trou­bling ori­gins.

Plus, it’s not clear the 1965 treaty waive pri­vate claims from indi­vid­u­als. In addi­tion, in the nego­ti­at­ing doc­u­ments for the treaty that were only made pub­lic in 2005, Japan refused to acknowl­edge the ille­git­i­ma­cy of its col­o­niza­tion of Korea.

But there’s a more fun­da­men­tal prin­ci­ple at stake here: Jus cogens, or peremp­to­ry norm. That’s the prin­ci­ple well-estab­lished in inter­na­tion­al law that pro­vides that a state can­not sign away its people’s human rights through a treaty. As the arti­cle notes, if it was­n’t for that inter­na­tion­al prin­ci­ple, a coun­try could the­o­ret­i­cal­ly legal­ly sell part of its pop­u­la­tion into slav­ery.

So those are the con­tours of this legal dis­pute and as we’re going to see in the sec­ond arti­cle Japan has already called for an arbi­tra­tion pan­el to be set up per the terms of the 1965 treaty. This arbi­tra­tion pan­el would include a mem­ber from a third-par­ty coun­try, so the ques­tion of which coun­try that per­son would be cho­sen from would obvi­ous­ly be poten­tial­ly con­tentious. But if South Korea does­n’t agree to an arbi­tra­tion pan­el to set­tle the dis­pute Japan’s for­eign min­istry is talk­ing about tak­ing its case to the U.N.‘s Inter­na­tion­al Court of Jus­tice. South Korea has 30 days to respond to the request for an arbi­tra­tion pan­el which was made last week. So in a few weeks Japan might be push­ing for take this to the U.N. And as one legal observ­er notes, it’s like­ly that the Inter­na­tion­al Crim­i­nal Court will have sym­pa­thy for Japan’s argu­ments.

So a case involv­ing the prin­ci­ple of Jus cogens is poten­tial­ly going to be ruled on by the Inter­na­tion­al Court of Jus­tice, but only if South Korea does­n’t agree to an arbi­tra­tion pan­el involv­ing a yet-to-be-decid­ed third-par­ty coun­try. And that’s all why this case is not just about resolv­ing an old dis­pute and might end up impact­ing the inter­pre­ta­tions of inter­na­tion­al laws on human rights and be decid­ed by the U.N.:

For­eign Pol­i­cy

Tokyo Keeps Defend­ing World War II Atroc­i­ties
Japan’s legal excus­es over slave labor are weak at best.

BY S. NATHAN PARK
MAY 29, 2019, 12:35 PM

Impe­r­i­al Japan annexed the Empire of Korea in 1910 as a crit­i­cal step in the colo­nial project that would even­tu­al­ly lead to its alliance with Nazi Ger­many and fas­cist Italy. Over a mil­lion Kore­ans would be con­script­ed as slave labor for Japan’s war effort—not count­ing the hun­dreds of thou­sands of women forced into sex­u­al slav­ery for the Japan­ese army. Lee Chun-sik, now in his nineties, was one of the many who were forced into slave labor. Lee did gru­el­ing and dan­ger­ous work at a steel mill in Japan, receiv­ing no pay, lit­tle food, and reg­u­lar beat­ings. In 2005, Lee and three oth­er for­mer forced labor­ers sued Nip­pon Steel & Sum­it­o­mo Met­al Cor­po­ra­tion, the suc­ces­sor of the wartime steel mill, in the South Kore­an courts after los­ing an ear­li­er law­suit they filed in Japan. In Octo­ber 2018, after a long legal bat­tle, Lee pre­vailed in the Supreme Court of Korea. After 13 years of lit­i­ga­tion, Lee is the only one of the plain­tiffs still alive.

The suf­fer­ing of Lee and many oth­ers is his­tor­i­cal fact. But if you went by the Japan­ese government’s hys­ter­i­cal reac­tion—accus­ing its neigh­bor of “try­ing to shift South Korea’s respon­si­bil­i­ty” over the wartime forced labor—you might think it was Korea that was the vil­lain of this sto­ry. Fol­low­ing the Supreme Court’s deci­sion, Tokyo has threat­ened to recall its ambas­sador to South Korea, levy sanc­tions against South Kore­an exports to Japan, seize South Kore­an gov­ern­ment prop­er­ty in Japan, and rein­tro­duce visa require­ments for vis­it­ing Kore­an tourists. Japan­ese For­eign Min­is­ter Taro Kono even demanded South Kore­an Pres­i­dent Moon Jae-in inter­vene with the Supreme Court’s decision—a ridicu­lous request to make against a con­sti­tu­tion­al democ­ra­cy that man­dates sep­a­ra­tion of pow­ers.

Japan claims its self-right­eous­ness stems from respect for inter­na­tion­al law, and that South Korea has vio­lat­ed the treaties into which the two coun­tries entered in 1965. The treaty estab­lished a basic diplo­mat­ic rela­tion­ship between the two coun­tries in the after­math of impe­r­i­al Japan’s defeat in World War II and Korea’s inde­pen­dence. Japan has long argued that the 1965 treaties put an end to any oblig­a­tion for Japan to com­pen­sate Korea for its colo­nial­ism and war crimes, as Japan paid $300 mil­lion (the equiv­a­lent of about $2.28 bil­lion today) and loaned an addi­tion­al $500 mil­lion to South Korea to set­tle Korea’s claims.

The South Kore­an pub­lic has lit­tle patience for this argu­ment. After all, it was the dic­ta­tor Park Chung-hee—a for­mer jmpe­r­i­al Japan­ese mil­i­tary offi­cer who came to pow­er by rolling tanks into Seoul to over­throw the demo­c­ra­t­i­cal­ly elect­ed government—who nego­ti­at­ed the treaties, away from the pub­lic view. Imme­di­ate­ly after the 1965 deal was con­clud­ed, Park had to declare mar­tial law over Korea to quell protests against the terms of the treaties.

But even accept­ing the legit­i­ma­cy of the 1965 treaties, Japan’s legal the­o­ry is more ten­den­tious than it lets on. To begin with, it’s far from clear whether the 1965 treaties actu­al­ly waived pri­vate claims held by indi­vid­ual Kore­ans who were vic­tim­ized by impe­r­i­al Japan. The diplo­mat­ic doc­u­ments relat­ed to the nego­ti­a­tion process of the 1965 treaties (which were not made pub­lic until 2005) show that Japan con­sis­tent­ly refused to acknowl­edge it had any lia­bil­i­ty to Korea aris­ing from its colo­nial rule, as Japan refused to acknowl­edge the ille­git­i­ma­cy of its col­o­niza­tion of Korea.

Accord­ing­ly, the 1965 treaties make no ref­er­ence to whether Japan’s colo­nial rule over Korea had any legit­i­ma­cy. If Japan’s nego­tia­tors for the 1965 treaties, rep­re­sent­ing the admin­is­tra­tion led by Prime Min­is­ter Hay­a­to Ike­da, tru­ly believed that Japan owed noth­ing to Korea, and if the treaty’s text makes no ref­er­ence to whether impe­r­i­al Japan com­mit­ted any wrong to Korea for which com­pen­sa­tion is required, it fol­lows that what­ev­er mon­ey Japan paid to Korea pur­suant to the treaties set­tled noth­ing. Indeed, while answer­ing ques­tions about the treaties to Japan’s leg­is­la­ture in 1965, For­eign Min­is­ter Etsus­aburo Shi­ina char­ac­ter­ized the pay­ment not as repa­ra­tions for a wrong, but as a con­grat­u­la­to­ry ges­ture for Korea’s inde­pen­dence. A state can­not bar­gain in a treaty for some­thing it nev­er admit­ted to in the first place.

Even if South Korea and Japan did intend to make such a bar­gain, such agree­ment would be void based on well-estab­lished prin­ci­ples of inter­na­tion­al law. Jus cogens, or peremp­to­ry norm, pro­vides that a state can­not sign away its people’s human rights through a treaty. If it were oth­er­wise, for exam­ple, a coun­try would be able to legal­ly sell a por­tion of its pop­u­la­tion into slav­ery. Accord­ing­ly, Arti­cle 53 of the Vien­na Con­ven­tion on the Law of Treaties states: “A treaty is void if, at the time of its con­clu­sion, it con­flicts with a peremp­to­ry norm of gen­er­al inter­na­tion­al law.”

The man­date of peremp­to­ry norm is so para­mount that, accord­ing to Arti­cle 64 of the Vien­na Con­ven­tion, the emer­gence of a new peremp­to­ry norm voids all exist­ing treaties that con­flict with the new norm. (Both Japan and South Korea are sig­na­to­ries to the Vien­na Con­ven­tion, although a peremp­to­ry norm applies through­out the world with­out ref­er­ence to whether a coun­try signed any spe­cif­ic treaty.)

It is beyond dis­pute that wartime slav­ery vio­lates such norms. In fact, pro­hi­bi­tion of slav­ery is one of the ear­li­est peremp­to­ry norms to be rec­og­nized in mod­ern inter­na­tion­al law, along with pro­hi­bi­tions against tor­ture and mas­sacre of civil­ians. Although a peremp­to­ry norm’s valid­i­ty does not depend on the per­pet­u­a­tors’ under­stand­ing of it as a vio­la­tion at the time, it is also absolute­ly clear that impe­r­i­al Japan rec­og­nized pro­hi­bi­tion of slav­ery as an inter­na­tion­al peremp­to­ry norm, as it was a sig­na­to­ry to treaties pro­hibit­ing slav­ery as ear­ly as 1925. Even if the South Kore­an dic­ta­tor­ship intend­ed to waive indi­vid­ual Kore­ans’ claims aris­ing from impe­r­i­al Japan’s con­scrip­tion for slave labor, such attempts would have no effect.

These legal argu­ments are not any­thing new. They are based on long-stand­ing prin­ci­ples of law that have been con­stant­ly reaf­firmed, includ­ing in the spe­cif­ic con­text of Japan’s colo­nial rule over Korea and the 1965 treaties. For exam­ple, it has been more than two decades since the Unit­ed Nations spe­cial rap­por­teur on vio­lence against women found that Japan had the legal oblig­a­tion to com­pen­sate for­mer mil­i­tary sex slaves. In the 1996 report for the U.N. Com­mis­sion on Human Rights, the spe­cial rap­por­teur reject­ed the Japan­ese government’s posi­tion that the 1965 treaties extin­guished the claims of the for­mer “com­fort women” based on the same prin­ci­ples as above: Claims based on vio­la­tion of fun­da­men­tal human rights can­not be waived via treaty, and at any rate Japan did not bar­gain for the waiv­er of these claims in the 1965 treaties.

...

———–

“Tokyo Keeps Defend­ing World War II Atroc­i­ties” by S. NATHAN PARK; For­eign Pol­i­cy; 05/29/2019

“The suf­fer­ing of Lee and many oth­ers is his­tor­i­cal fact. But if you went by the Japan­ese government’s hys­ter­i­cal reac­tion—accus­ing its neigh­bor of “try­ing to shift South Korea’s respon­si­bil­i­ty” over the wartime forced labor—you might think it was Korea that was the vil­lain of this sto­ry. Fol­low­ing the Supreme Court’s deci­sion, Tokyo has threat­ened to recall its ambas­sador to South Korea, levy sanc­tions against South Kore­an exports to Japan, seize South Kore­an gov­ern­ment prop­er­ty in Japan, and rein­tro­duce visa require­ments for vis­it­ing Kore­an tourists. Japan­ese For­eign Min­is­ter Taro Kono even demanded South Kore­an Pres­i­dent Moon Jae-in inter­vene with the Supreme Court’s decision—a ridicu­lous request to make against a con­sti­tu­tion­al democ­ra­cy that man­dates sep­a­ra­tion of pow­ers.”

Respect for inter­na­tion­al law. That’s how the Japan­ese gov­ern­ment is fram­ing its argu­ment. An argu­ment that is prob­lem­at­ic for a num­ber of rea­sons, includ­ing the fact that the 1965 treaty did­n’t even char­ac­ter­ize the pay­ments to South Korea as repa­ra­tions but instead as “con­grat­u­la­to­ry” ges­ture for South Kore­a’s new inde­pen­dence. The fact that this treaty was signed by a dic­ta­tor who had just seized pow­er two years ear­li­er and was a for­mer offi­cer of Impe­r­i­al Japan does­n’t help:

...
Japan claims its self-right­eous­ness stems from respect for inter­na­tion­al law, and that South Korea has vio­lat­ed the treaties into which the two coun­tries entered in 1965. The treaty estab­lished a basic diplo­mat­ic rela­tion­ship between the two coun­tries in the after­math of impe­r­i­al Japan’s defeat in World War II and Korea’s inde­pen­dence. Japan has long argued that the 1965 treaties put an end to any oblig­a­tion for Japan to com­pen­sate Korea for its colo­nial­ism and war crimes, as Japan paid $300 mil­lion (the equiv­a­lent of about $2.28 bil­lion today) and loaned an addi­tion­al $500 mil­lion to South Korea to set­tle Korea’s claims.

The South Kore­an pub­lic has lit­tle patience for this argu­ment. After all, it was the dic­ta­tor Park Chung-hee—a for­mer jmpe­r­i­al Japan­ese mil­i­tary offi­cer who came to pow­er by rolling tanks into Seoul to over­throw the demo­c­ra­t­i­cal­ly elect­ed gov­ern­ment—who nego­ti­at­ed the treaties, away from the pub­lic view. Imme­di­ate­ly after the 1965 deal was con­clud­ed, Park had to declare mar­tial law over Korea to quell protests against the terms of the treaties.

But even accept­ing the legit­i­ma­cy of the 1965 treaties, Japan’s legal the­o­ry is more ten­den­tious than it lets on. To begin with, it’s far from clear whether the 1965 treaties actu­al­ly waived pri­vate claims held by indi­vid­ual Kore­ans who were vic­tim­ized by impe­r­i­al Japan. The diplo­mat­ic doc­u­ments relat­ed to the nego­ti­a­tion process of the 1965 treaties (which were not made pub­lic until 2005) show that Japan con­sis­tent­ly refused to acknowl­edge it had any lia­bil­i­ty to Korea aris­ing from its colo­nial rule, as Japan refused to acknowl­edge the ille­git­i­ma­cy of its col­o­niza­tion of Korea.

Accord­ing­ly, the 1965 treaties make no ref­er­ence to whether Japan’s colo­nial rule over Korea had any legit­i­ma­cy. If Japan’s nego­tia­tors for the 1965 treaties, rep­re­sent­ing the admin­is­tra­tion led by Prime Min­is­ter Hay­a­to Ike­da, tru­ly believed that Japan owed noth­ing to Korea, and if the treaty’s text makes no ref­er­ence to whether impe­r­i­al Japan com­mit­ted any wrong to Korea for which com­pen­sa­tion is required, it fol­lows that what­ev­er mon­ey Japan paid to Korea pur­suant to the treaties set­tled noth­ing. Indeed, while answer­ing ques­tions about the treaties to Japan’s leg­is­la­ture in 1965, For­eign Min­is­ter Etsus­aburo Shi­ina char­ac­ter­ized the pay­ment not as repa­ra­tions for a wrong, but as a con­grat­u­la­to­ry ges­ture for Korea’s inde­pen­dence. A state can­not bar­gain in a treaty for some­thing it nev­er admit­ted to in the first place.
...

But more fun­da­men­tal­ly, a treaty that absolved Japan of oblig­a­tions over its wartime human rights vio­la­tions would fun­da­men­tal­ly vio­late inter­na­tion­al law by vio­lat­ing the prin­ci­ple of peremp­to­ry norm that pro­vides that a state can­not sign away its peo­ple’s human rights through a treaty. That’s part of what’s being debat­ed in this case:

...
Even if South Korea and Japan did intend to make such a bar­gain, such agree­ment would be void based on well-estab­lished prin­ci­ples of inter­na­tion­al law. Jus cogens, or peremp­to­ry norm, pro­vides that a state can­not sign away its people’s human rights through a treaty. If it were oth­er­wise, for exam­ple, a coun­try would be able to legal­ly sell a por­tion of its pop­u­la­tion into slav­ery. Accord­ing­ly, Arti­cle 53 of the Vien­na Con­ven­tion on the Law of Treaties states: “A treaty is void if, at the time of its con­clu­sion, it con­flicts with a peremp­to­ry norm of gen­er­al inter­na­tion­al law.”

The man­date of peremp­to­ry norm is so para­mount that, accord­ing to Arti­cle 64 of the Vien­na Con­ven­tion, the emer­gence of a new peremp­to­ry norm voids all exist­ing treaties that con­flict with the new norm. (Both Japan and South Korea are sig­na­to­ries to the Vien­na Con­ven­tion, although a peremp­to­ry norm applies through­out the world with­out ref­er­ence to whether a coun­try signed any spe­cif­ic treaty.)
...

Beyond that, when this same argu­ment was made by Japan over com­pen­sa­tion for the “com­fort women” sex slaves, the spe­cial rap­por­teur of the U.N. Com­mis­sion on Human Rights ruled in 1996 that such an argu­ment vio­lates the prin­ci­ple of peremp­to­ry norm:

...
These legal argu­ments are not any­thing new. They are based on long-stand­ing prin­ci­ples of law that have been con­stant­ly reaf­firmed, includ­ing in the spe­cif­ic con­text of Japan’s colo­nial rule over Korea and the 1965 treaties. For exam­ple, it has been more than two decades since the Unit­ed Nations spe­cial rap­por­teur on vio­lence against women found that Japan had the legal oblig­a­tion to com­pen­sate for­mer mil­i­tary sex slaves. In the 1996 report for the U.N. Com­mis­sion on Human Rights, the spe­cial rap­por­teur reject­ed the Japan­ese government’s posi­tion that the 1965 treaties extin­guished the claims of the for­mer “com­fort women” based on the same prin­ci­ples as above: Claims based on vio­la­tion of fun­da­men­tal human rights can­not be waived via treaty, and at any rate Japan did not bar­gain for the waiv­er of these claims in the 1965 treaties.
...

So the U.N. Com­mis­sion on Human Rights has already basi­cal­ly ruled on this issue, or at least a very sim­i­lar issue, and ruled in the favor of the vic­tims of human rights vio­la­tions. But this time Japan is push­ing for an arbi­tra­tion pan­el, as per the 1965 treaty. And if South Korea does­n’t agree, Japan is plan­ning on tak­ing it to the UN’s Inter­na­tion­al Court of Jus­tice, and accord­ing to Stephen Nagy, a senior asso­ciate pro­fes­sor of inter­na­tion­al rela­tions at Tokyo’s Inter­na­tion­al Chris­t­ian Uni­ver­si­ty, that court is prob­a­bly going to have sym­pa­thy for Japan’s posi­tion:

South Chi­na Morn­ing Post

Japan look­ing to esca­late South Kore­an wartime labour dis­pute to UN court

* Seoul and Tokyo have been at log­ger­heads for months over com­pen­sa­tion, stem­ming from a series of South Kore­an court deci­sions last year
* Japan has now for­mal­ly request­ed arbi­tra­tion on the issue, but observers say that South Korea is unlike­ly to take part

Julian Ryall
Pub­lished: 5:41pm, 22 May, 2019
Updat­ed: 5:41pm, 22 May, 2019

Japan is prepar­ing to esca­late a dis­pute with South Korea over com­pen­sa­tion for wartime labour to the Inter­na­tion­al Court of Jus­tice if Seoul does not agree to arbi­tra­tion on the mat­ter, observers say.

On Mon­day, Tokyo for­mal­ly request­ed that an arbi­tra­tion pan­el be set up, includ­ing a mem­ber from a third coun­try, cit­ing the terms of a 1965 treaty to nor­malise rela­tions between the pair after the end of the sec­ond world war.

South Korea’s for­eign min­istry con­firmed that it received Japan’s offi­cial let­ter and said it will “care­ful­ly” review the request “con­sid­er­ing relat­ed ele­ments”.

But Yoichi Shi­ma­da, a pro­fes­sor of inter­na­tion­al rela­tions at Fukui Pre­fec­tur­al Uni­ver­si­ty, said that Seoul was unlike­ly to agree to arbi­tra­tion.

“They have already reject­ed the pre­vi­ous step spelled out in the 1965 agree­ment, for bilat­er­al talks, on the grounds that the gov­ern­ment can­not inter­fere in judi­cial deci­sions,” he said. “So they will find it dif­fi­cult to jus­ti­fy revers­ing that posi­tion as it will appear to the Kore­an pub­lic that their lead­ers have giv­en in to Japan­ese pres­sure.”

...

South Korea has declined to attend bilat­er­al talks on the mat­ter, accord­ing to Chief Cab­i­net Sec­re­tary Yoshi­hide Suga, who said the Japan­ese gov­ern­ment had “deter­mined that it is impos­si­ble to solve this issue through nego­ti­a­tions”.

Based on the 1965 treaty, “the South Kore­an gov­ern­ment is oblig­ed to agree to arbi­tra­tion,” he said.

The treaty states that dis­putes should be set­tled through diplo­mat­ic chan­nels and mat­ters for which a set­tle­ment can­not be reached should go to arbi­tra­tion. It spells out terms for the two coun­tries to select a third-par­ty arbi­tra­tor on their own, or have appoint­ments made if they can­not decide. Under its terms, South Korea has to respond to Japan’s request with­in 30 days of receiv­ing an offi­cial let­ter.

If Seoul does not respond, Tokyo looks like­ly to file a com­plaint with the Inter­na­tion­al Court of Jus­tice, accord­ing to Shi­ma­da of Fukui Pre­fec­tur­al Uni­ver­si­ty.

“That is a course of action that offi­cials of the For­eign Min­istry are now open­ly advo­cat­ing because they are very reluc­tant to start impos­ing sanc­tions on anoth­er nation, which would be Japan’s only oth­er pos­si­ble course of action,” he said.

Stephen Nagy, a senior asso­ciate pro­fes­sor of inter­na­tion­al rela­tions at Tokyo’s Inter­na­tion­al Chris­t­ian Uni­ver­si­ty, pre­dict­ed that the inter­na­tion­al court would have “sym­pa­thy for Japan” and be “far less politi­cised”.

“Japan has offered bilat­er­al talks and [it is] offer­ing an arbi­tra­tion process, but the Kore­ans are refus­ing to engage,” he said.

“The 1965 treaty stat­ed clear­ly that there would be no more repa­ra­tions, but now Korea is walk­ing that agree­ment back.”

Nagy said Moon was “falling back on pur­su­ing issues that are pop­u­lar with Kore­ans to earn polit­i­cal points”, amid a slow­ing econ­o­my, his own flag­ging pop­u­lar­i­ty and his administration’s stalled pol­i­cy of engage­ment with Pyongyang.

South Korea’s Supreme Court ruled in Novem­ber that Mit­subishi Heavy Indus­tries must pay between 100 mil­lion won and 150 mil­lion won (US$84,000 to US$126,000) to each of five plain­tiffs who were forced to work in a mil­i­tary fac­to­ry, a month after find­ing Nip­pon Steel & Sum­it­o­mo Met­al Cor­po­ra­tion liable in a sim­i­lar case. The country’s courts have ordered the seizure of assets in South Korea of enti­ties asso­ci­at­ed with the Japan­ese firms, such as stocks in joint ven­tures.

There are more than a dozen oth­er law­suits in the pipeline, affect­ing about 70 Japan­ese com­pa­nies, accord­ing to Japan’s Min­istry of For­eign Affairs.

Japan says all claims relat­ing to the colo­nial peri­od were set­tled under the 1965 treaty, which was accom­pa­nied by a pay­ment of US$300 mil­lion, and that South Korea should be respon­si­ble for any com­pen­sa­tion. South Kore­an Pres­i­dent Moon Jae-in has said the treaty doesn’t pre­vent Kore­ans from suing Japan­ese firms and that the deci­sions of the courts should be respect­ed.

———-

“Japan look­ing to esca­late South Kore­an wartime labour dis­pute to UN court” by Julian Ryall; South Chi­na Morn­ing Post; 05/22/2019

“On Mon­day, Tokyo for­mal­ly request­ed that an arbi­tra­tion pan­el be set up, includ­ing a mem­ber from a third coun­try, cit­ing the terms of a 1965 treaty to nor­malise rela­tions between the pair after the end of the sec­ond world war.”

Will South Korea agree to the terms of the 1965 treaty’s calls for an arbi­tra­tion pan­el when its already reject­ing the valid­i­ty of the treaty in so many ways? It does­n’t seem like­ly, but South Korea has 30 days to respond and after that it’s look­ing like Japan is going to be tak­ing this to the UN because the only oth­er option is sanc­tions. At the same time, if Stephen Nagy pre­dic­tion is cor­rect and the Inter­na­tion­al Court of Jus­tice is like­ly to rule in Japan’s favor, per­haps South Korea will be more like­ly to accept the arbi­tra­tion. We’ll see:

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Based on the 1965 treaty, “the South Kore­an gov­ern­ment is oblig­ed to agree to arbi­tra­tion,” he said.

The treaty states that dis­putes should be set­tled through diplo­mat­ic chan­nels and mat­ters for which a set­tle­ment can­not be reached should go to arbi­tra­tion. It spells out terms for the two coun­tries to select a third-par­ty arbi­tra­tor on their own, or have appoint­ments made if they can­not decide. Under its terms, South Korea has to respond to Japan’s request with­in 30 days of receiv­ing an offi­cial let­ter.

If Seoul does not respond, Tokyo looks like­ly to file a com­plaint with the Inter­na­tion­al Court of Jus­tice, accord­ing to Shi­ma­da of Fukui Pre­fec­tur­al Uni­ver­si­ty.

“That is a course of action that offi­cials of the For­eign Min­istry are now open­ly advo­cat­ing because they are very reluc­tant to start impos­ing sanc­tions on anoth­er nation, which would be Japan’s only oth­er pos­si­ble course of action,” he said.

Stephen Nagy, a senior asso­ciate pro­fes­sor of inter­na­tion­al rela­tions at Tokyo’s Inter­na­tion­al Chris­t­ian Uni­ver­si­ty, pre­dict­ed that the inter­na­tion­al court would have “sym­pa­thy for Japan” and be “far less politi­cised”.
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But with more than a dozen oth­er law­suits already in play involv­ing around 70 Japan­ese com­pa­nies, this case is going to be a very big deal to both coun­tries. Espe­cial­ly since South Kore­an courts have already ordered the seizure of assets of Japan­ese firms:

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South Korea’s Supreme Court ruled in Novem­ber that Mit­subishi Heavy Indus­tries must pay between 100 mil­lion won and 150 mil­lion won (US$84,000 to US$126,000) to each of five plain­tiffs who were forced to work in a mil­i­tary fac­to­ry, a month after find­ing Nip­pon Steel & Sum­it­o­mo Met­al Cor­po­ra­tion liable in a sim­i­lar case. The country’s courts have ordered the seizure of assets in South Korea of enti­ties asso­ci­at­ed with the Japan­ese firms, such as stocks in joint ven­tures.

There are more than a dozen oth­er law­suits in the pipeline, affect­ing about 70 Japan­ese com­pa­nies, accord­ing to Japan’s Min­istry of For­eign Affairs.
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So we’re going to find out soon if this ends up going to arbi­tra­tion or head­ing off to the Inter­na­tion­al Court of Jus­tice. Either way, the ques­tion of how some basic prin­ci­ples of inter­na­tion­al law and human rights can be resolved is going to be answered one way or anoth­er and that’s why this case is much more than a dis­pute between two coun­tries over war crime repa­ra­tions.