국제법적 관점에서 본 일제강제징용 배상판결의 주요쟁점에 관한 연구

A series of judgments by the Courts in Korea on war-time forced laborers in recent times are at the interface between law and history. One of the key-points of the judgments in light of public international law is the arguments by the Japanese defendant companies were rejected that all the claims by the Korean plaintiffs against them had been fully and completely settled by the so-called 1965 Agreement between the Republic of Korea and Japan. Many international law scholars in Korea criticized upon the rulings on the reasons the issue of compensation claimed by the war-time forced laborers was settled on lump sum basis by the 1965 Agreement. Furthermore, they asserted all the claims by the Korean war-time forced laborers had been depicted as resolved in the statement of the committee chaired by Mr. Lee Hae-chan, then Prime Minister of Korea made in August, 2005, and that various subsequent practices of the Government of Korea were in favor of their positions. For the present, one of the basic ways to settle down the confusions as to the coverage of the 1965 Agreement is to analyse thoroughly the words and phrases of the 1965 Agreement as such and its associated treaties. The close analysis of Articles 1 and 2 of the 1965 Agreement in question has shown the money provided for under Article 1 of the 1965 Agreement was not meant for a thing in return for the full and complete settlement of all the claims as allegedly provided for in Article 2 of the 1965 Agreement. The remaining issues are the queries of whether the actions of the Government of Korea made consistent subsequent state practices in favor of those critics with regard to the interpretation and application of the 1965 Agreement. As to the issue of enforced sexual slavery, the position of the Government of Korea is way apart from that of Japan as shown in the first-ever official meeting between Korea and Japan on that issue in April, 2014. But it is not clear whether Korea keeps the same position with regard to the matter of war-time forced laborers. The Government of Korea has not confirmed its position fully and clearly. It has been stated it would not intervene into a civil court case involving Korean nationals and Japanese companies before the Korean Courts. The current situations where Korea and Japan disagree with each other with regard to the coverage of the 1965 Agreement may harm the relationship between both sides of the Korean Strait. It seems high time Article 3 of the 1965 Agreement should be respected properly and operated immediately. According to Article 3 of the 1965 Agreement, disputes between the two Contracting Parties as to the interpretation and application of the 1965 Agreement shall be first settled through diplomatic negotiation and then such disputes shall be referred to an arbitration commission of three arbitrators. If Korea and Japan were really concerned about the victims from war-time atrocities, they should not waste time for calculating the advantages and disadvantages of applying the 1965 Agreement in diplomatic and political ways. They should not eschew using fair and objective third-party resolution processes put on by nerve-wrecking negotiations in the 1960s. Korea and Japan should consider first the needs of those victims and find a solution for their claims in an attempt to secure more prosperous and peaceful future in the North-East Asia.