The fact that diplomacy is not as valued as words in Korea is an open secret. Even though Korea is a divided nation surrounded by four superpowers, it is commonplace for Koreans to handle diplomatic issues using domestic opinions rather than international viewpoints.
The judicial branch is not free from this. Korean courts have recently made several radical decisions in lawsuits related to diplomatic issues. Though there is little doubt that those decisions were made on the basis of laws and conscience, they nevertheless had a tremendous impact on Korean diplomacy and international standing.
For example, in 2012, the 1st civil division of the Supreme Court overruled and sent back the original ruling which denied the responsibilities of Japanese companies to compensate for damages for forced mobilization. This was a revolutionary ruling that clearly went against the Korean government’s official position that the forced mobilization issue was fully resolved by the 1965 Claims Agreement between Korea and Japan. The Supreme Court’s full bench confirmed the original decision in October of 2018 after a final appeal trial. It can be said that the decision of the 1st civil division of the Supreme Court was finally confirmed.
Japan claimed that this is a breach of the 1965 Claim Agreement. Objectively speaking, the Korean government got stuck between the Agreement and the courts’ decisions. Korea, the victim, was forced into a defensive position due to a breach of promise. However, interestingly, the Korean government did not share that understanding. Instead, it sided with the courts claiming the separation of powers and the victim-centered approach. This made things much more difficult. In order to get out of the defensive position, the Korean government should have recognized that it was bewildered by the relationship between the treaty and the courts’ judgments. This would have enabled it to have enough space to discuss with Japan how to solve the problem. Because the Korean government had not chosen such option, Korean-Japanese negotiations got into difficulty..
Japan, based on the dispute settlement procedures outlined in the 1965 Claim Agreement, requested bilateral consultations, then a reference to an arbitration board. However, Korea declined and offered a suite of solutions, which Japan also declined, on the basis that they were all based on the assumption that the Supreme Court’s decision would be upheld and executed.
Soon after, a new conundrum emerged. The local court of Seoul, on January 8, 2021, ruled in favor of the plaintiffs in the lawsuit filed by former comfort women against the Japanese government. Japan’s state immunity was denied on the ground of a crime against humanity. Though this might be a decision that opens a new horizon in human rights, it is definitely a challenge against international custom laws. It can be said that it is another factor that forces the Korean government into a defensive position. It can also be said that when the Korean government sided with the courts after the decision regarding forced mobilization, it unwillingly created an atmosphere where similar revolutionary court decisions can be rendered.
Japan claimed that this was against international law, and demanded that the Korean government remedy the situation. The Korean government insisted that it would respect the courts’ decision. On the other hand, the president publicly commented that he was bewildered. This was a different idea from the forced mobilization ruling.
It can be said that the decisions made by the 1st civil division of the Supreme Court and the local court of Seoul are monumental in terms of strict rulings against unlawfulness of colonial rule, crimes against humanity, and state immunity. The problem is that these decisions are quite deviated from the mainstream of the international community.
If the courts’ decisions were to gain international support, the Korean government would have actively rebutted against the Japanese claims calling these decisions breaches of international law, and brought the case to an arbitration board or the International Court of Justice. However, not only is the Korean government pitifully unable to make a counterargument, but it avoids the main issue. The fact that the Korean government does not cite the courts’ legal argument against the claim of breaches of international law tells a lot about its situation.
Of course, the courts’ argument may become the mainstream of the international community in the distant future. However, it would be a problem if we are expecting Korea to hold on to the courts’ decision to oppose the international mainstream, and suffer all of the consequences of being in such a position, until that future arrives. We must first get out of the current situation. For the moment, we must prevent the situation from getting worse.
Because the courts denied Japan’s state immunity, there could be more lawsuits against the Japanese or American government. If more judgments that deny state immunity are rendered, the Korean government would be forced into more difficulties. When hearing this argument, some might say that it’s not the courts’ responsibility to consider those aspects. However, if so, you cannot explain why courts all over the world restrain themselves from making decision on diplomatic issues, or respect the opinions of the executive branch to give leeway to state immunity. We would also like to know if other judges or the Supreme Court would deny state immunity too.
Let’s run a hypothesis. If another court grants state immunity in a similar lawsuit in the future, what would happen? If the Supreme Court grants state immunity, things would change.
On the other hand, it must be stressed that deferral of compulsory execution would create the space and time to solve this. The president also commented that compulsory execution is not desirable. The Korean government must work hard to arouse public awareness.
After managing the situation, we must then work on solving the problem. After all, the Korean government must find the flexibility to follow the international mainstream. However, because it has uphold the courts’ decision, it has very little room to maneuver. After the comfort women decision, President Moon publicly commented that he was bewildered, so it is worth keeping an eye on the impact it may give on the government’s actions.
If the Korean government has difficulty in showing flexibility, I would like to suggest that a possible exit would be to convene a nonpartisan convention of wise people and ask them to suggest a solution.
The courts made a monumental decision, then disappeared behind the stage. The diplomatic arm of the Korean government is teetering from the impact of the courts’ decision. Korean diplomacy is being driven into a corner by the repeatedly appearing problems and the organized response by Japan. To watch us, the victims, get snagged by a breach of agreement, injure our international standpoint, and stand unable to make a decent argument against Japanese reproach is truly grueling. I wish the Korean government would come up with a plan to move forward. And I also wish that courts would cause no more problems.
Joongang Ilbo column (February 3rd, 2021) by Wi Sung-lac, (former special representative for Korean Peninsula Peace and Security Affairs)
https://news.joins.com/article/23984716 (Korean Original)