한일청구권협정 관련 대법원 판결의 국제법적 평가

Marking the centennial of Japan’s forcible annexation of Korea, the year 2010 served as an opportunity for us to realize that identifying the root causes of and the solution to historical conflicts between the two countries was a historical challenge and mission of justice of our times. What this meant was that, at this watershed moment in history, we should seek a genuine sense of historical reconciliation by getting our history right. The Japanese government, in contrast, has the normative perception that its coerced annexation of Korea in 1910 was made by signing into a “legitimate” annexation treaty under the international law of the times, making its occupation of and colonial rule over the country lawful on this basis. In this vein, it has consistently denied its liability to pay compensation for any illegal acts against humanity involving the State of Japan or those directly associated with its colonial rule and even claimed such liability was fully satisfied by the conclusion of the 1965 Agreement on the Settlement of Problems Concerning Property and Claims and the Economic Cooperation between the Republic of Korea and Japan (“Korea-Japan Settlement Agreement”). Let us take a look at the decisions made by Korean courts in 2009: Since 2000, former forced laborers, who were mobilized and exploited against their will by the Japanese government during Japanese colonial rule, have filed compensation suits in Korea against Mitsubishi Heavy Industries and Nippon Steel, accusing them of having violated international law and made illicit acts. During the appeals of these cases, however, both Busan High Court and Seoul High Court—on February 3 and July 16, respectively—ruled against the plaintiffs, directly recognizing the 2007 decision by the Japanese Supreme Court which was given against the plaintiffs in the lawsuits filed in Japan since 1995. Under such circumstances, Korean and Japanese scholars joined forces to bring to light the historical truth on Japan’s forcible annexation of Korea and realize justice under international law. Through joint research projects and international symposiums, they demonstrated the “voidness and unlawfulness of Japan’s forcible annexation of Korea under international law” on June 22, 2009. This led to a joint statement on May 10, 2010 by 214 Korean and Japanese intellectuals who, in an endeavor to realize “historical justice,” stated that the 1910 Korea-Japan Annexation Treaty was “already null and void.” On July 28, 2010, with the 65th anniversary of Korea’s independence from Japanese colonial rule nearing, 1,139 intellectuals representing the two countries released another joint statement reaffirming the Treaty’s nullity and voidness. The Japanese government’s stance—structured around the normative perception that the Korea-Japan Annexation Treaty of 1910 provided the legal basis for the legitimacy of Japan’s occupation of and colonial rule over Korea—was fully reflected on the 1951 San Francisco Peace Treaty, in which Korea was denied the status as a signatory under Japanese manipulation, and the 1965 Korea-Japan Settlement Agreement which will mark its 50th anniversary in 2015. As a result, the 1965 Korea-Japan Settlement Agreement has remained the source of historical conflicts between the two countries concerning the liability for illicit “colonial rule” as well as a key pending issue to be urgently resolved. To evaluate the Korean Supreme Court’s decision from the perspective of international law, this paper has revisited the following issues: the negotiation/conclusion process of the 1965 Settlement Agreement and other international legal problems; the essence of the Agreement, centering on court decisions regarding Japan’s “colonial” liability made since the 2010 joint statement by Korean and Japanese intellectuals to declare the 1910 Korea-Japan Annexation Treaty “already null and void”; the nature of claim funds; the scope of the Settlement Agreement; individual claims; and Japan’s Law No. 144. Recognizing its annexation of Korea in 1910 as lawful, the Japanese government has turned away from its liability for its illicit colonial rule over Korea as a result of forced annexation. To realize “historical justice,” however, Korean and Japanese intellectuals made a joint statement in 2010 to declare “the 1910 Korea-Japan Annexation Treaty already null and void,” citing that Korea was not a signatory to the 1951 San Francisco Peace Treaty and that the issue of Japan’s liability for illicit colonial rule was left out even in the 1965 Settlement Agreement between Korea and Japan. This joint statement, for the first time, laid the foundation for bilateral discussions on post-war compensation. Court decisions made since the joint statement have clearly stated that Japan is liable to pay compensation for its illicit acts against humanity involving the State of Japan and those directly associated with its colonial rule over Korea. On August 30, 2011, in its decision on a constitutional appeal by former Korean “comfort women” illegally exploited by the Japanese military and Korean victims of the 1945 atomic bombing in Japan, the Constitutional Court of Korea recognized the existence of unresolved disputes under Article 3 of the 1965 Korea-Japan Settlement Agreement, holding that the Korean government was acting unconstitutionally by failing to take further steps for diplomatic negotiation or arbitration on these issues. On May 24, 2012, the Korean Supreme Court reversed and remanded the original trial court’s rule that recognized the effect of a Japanese court decision, which viewed Japan’s forcible mobilization of Korean nationals as lawful—under the normative perception that its colonial rule over Korea was legitimate—and which therefore ran against the essential values of the Korean Constitution that found such to be illegal. The key points from the Korean Supreme Court’s decision on the 1965 Korea-Japan Settlement Agreement can be summarized as below:First, with respect to the essence of the Agreement, the Korean Supreme Court asserted that the Agreement represented a negotiation not to claim compensation for Japan’s colonial rule but to address financial/civil claims and obligations between the two countries through political settlement pursuant to Article 4 of the San Francisco Peace Treaty. Second, concerning the nature of claim funds from Japan, the economic cooperation funds that the Japanese government provided to the government of the Republic of Korea under Article 1 of the Settlement Agreement shall not be seen as legal consideration for the resolution of the issues with claims pursuant to Article 2 thereof. Third, when it comes to the scope of the Settlement Agreement, the Japanese government, without recognizing the illegitimacy of its colonial rule over Korea, made an outright denial during the negotiation process of its obligations to compensate for damages from its coercion of Koreans into forced labor. In this light, it would be hard to suggest that individual claims to illicit acts against humanity involving the State of Japan or directly associated with its colonial rule were covered by the 1965 Settlement Agreement. This indicates that the Agreement neither extinguished the claims of Korean individuals nor discarded Korea’s diplomatic protection. Fourth, as for individual claims, the conclusion of any the Agreement shall not be viewed as extinguishing the individual claims of Korean nationals on top of Korea’s diplomatic protection. Fifth, Japan’s enactment and enforcement of Law No. 144 immediately after the 1965 Settlement Agreement implies that Korean citizens did not see their individual claims extinguished by the Agreement; they simply lost their means of diplomatic protection, as the Agreement discarded Korea’s diplomatic protection. The recent Supreme Court decision on the 1965 Agreement may be viewed as a historical rule from a Korean court that reiterated inherent problems behind Japan’s “colonial” liability and post-war compensation, established legal justice on the historical truth, and at the same time, set a milestone for International law of human rights by switching from a state-centric perspective to a human rights-centric one. With the 50th anniversary of the Korea-Japan Settlement Agreement in 2015 just around the corner, we need to shed new light on the issues of Japan’s “colonial” liability under international law, which Korea, as a non-signatory to the 1951 San Francisco Peace Treaty, could not address even in the bilateral treaty of the 1965 Settlement Agreement with Japan. The “nullity and voidness” of the 1910 Korea-Japan Annexation Treaty under international law, reaffirmed in the joint statement of Korean and Japanese intellectuals, will provide be the logical basis for this process. The year 2010 as the centennial of Japan’s forcible annexation of Korea served as a turning point for “realizing historical justice,” and 2012 represented a cornerstone for “establishing legal justice.” With all this as the basis, we sincerely hope that the upcoming semicentennial of the Korea-Japan Settlement Agreement in 2015 will be a breakthrough for “ensuring a genuine sense of historical reconciliation.”