Last year, the South Korean Supreme Court ordered Japanese companies Nippon Steel and Mitsubishi Heavy Industries to compensate wartime victims of forced labor. The Japanese government believes that all forced labor cases were settled with the 1965 Treaty, the treaty that established basic diplomatic relations between Japan and South Korea. As a response to the Supreme Court’s ruling, Japan issued restrictions on exports of vital materials used in South Korea’s tech industry. To prevent further escalation, there can be only one solution: to take the conflict to the International Court of Justice (ICJ) in The Hague. There are two reasons for that.
In the first place, neutral arbitration is crucial because the 1965 Treaty is past its expiration date. The written version of the 1965 bilateral agreement was unclear and inconclusive, as the specifics of the are open to multiple interpretations. As mentioned earlier, Japan often points at the part of the agreement where it says that all disputes were “settled completely and finally” with Japan paying South Korea 500 million dollars in reparations for its wartime past. The South Korean Supreme Court however, ruled that the treaty was strictly an agreement between states, and that it does not ban individuals from suing Japanese companies directly. Indeed, the treaty does not mention a ban on private claims to companies, but neither does it define what “completely and final” settlement entails.
Perhaps more striking, is that some parts of the deal were never written down in the official document. In 2005, the South Korean government disclosed 1,200 pages of diplomatic notes – kept secret for 40 years- describing the proceedings of the treaty talks. From these documents it became clear that Japan had actually offered to compensate individuals. However, South Korea insisted on taking care of individual cases itself. For that reason, Japan’s foreign minister Tarō argues that Japanese companies should not be held accountable for individual claims of plaintiffs. As both sides stick by their own interpretation of the 1965 Treaty, it shows that the treaty fails to function as a solid legal reference. The ICJ shine a neutral light on how the 1965 Treaty should be interpreted in today’s context, and perhaps advice on an altered, future-proof agreement.
The second reason why a step to the ICJ is the most sensible way forward, is because both Moon Jae-in and Abe Shinzō use the current conflict for gaining domestic support, causing the dispute to escalate in unprecedented ways. Abe knows that taking a hard line towards South Korea pleases the nationalist right-wing supporters of the LDP. Moreover, some analysts argue that Abe needs clashes with neighbors to find support for increasing the defense budget, and perhaps ultimately for abolishing Japan’s Article 9. Abe, blinded by his obsession to revise the constitution, accepts the economic disaster as a result of his trade restrictions, as collateral damage. And now that Abe failed to gain the two-thirds majority needed to revise the Japanese constitution, Abe might continue to pressure South Korea even further.
The take-away: anti-Japan works
Meanwhile in South Korea, boycotts appear against almost everything Japan-related: Uniqlo (a company that did not exist during the Second World War and employs hundreds –if not thousands – of Koreans), Japanese beer and even owners of Japanese cars. Some South Korean high schools hang anti-Japanese banners, instilling children with xenophobia by teaching that Japan is an evil country. The truth is that in Japan, there are many who oppose Abe and actively protest on the streets against his policies. South Korean media however, remain awfully silent about these Japanese anti-Abe protests, in comparison to extensive coverage of pro-Abe support among Japanese. In a worst case scenario, the widespread anti-Japan boycott could increase the “us versus them” sentiment to such an extent, that it increases the chance of hate crimes, therefore threatening the safety of Japanese citizens visiting South Korea or vice versa.
This wave of anti-Japanese sentiment is pushed by Moon Jae-in’s administration, whose senior presidential secretary Cho Kuk wrote last week that “in a situation like this, it’s not about if you are a ‘progressive or conservative’ or ‘left or right’, but it’s about whether you are a ‘patriot or a traitor’”. If anything, the current situation with Japan offers a welcome distraction from the opposition parties’ criticism on Moon’s economic- and North Korea policies: the current trade war with Japan seems to unite all political parties in South Korea, possibly a cause for Moon’s approval ratings hitting an 8-month high this week. The take-away: anti-Japan works, therefore making it unlikely Moon, or future presidents will adjust course. To break the impasse means to break from the domestic interests at stake.
We could be at a turning point in Japan-South Korea relations. And with Abe and Moon in power, only an independent organ like the ICJ can asses the steps needed to prevent the conflict from escalating further. For one, the ICJ could review the legality of Japan’s trade restrictions, and asses the South Korean Supreme Court’s forced labor compensation ruling. An ICJ court case could pose an opportunity to crystallize the past and work towards a future. This is vital, not only for the stability for the region, but also for enabling a just settlement for victims of forced labor. Their suffering should not be subject to the vicissitudes of domestic politics and nationalist agendas -from either side-