A Positive International Law Approach to the South Korea–Japan Conflicts: Breaking the Vicious Circle

Abstract

South Korea (Republic of Korea, ROK) and Japan have been suffering the vicious circle of serious conflicts concerning South Koreans’ tort claims. Even if two Korean emperors were compelled by Japan in 1905 and 1910, without proving the existence of customary international law prohibiting forced annexation in the early 20th century, the 1910 Annexation Treaty can not become invalid. Even if the 1910 Annexation Treaty was invalid, among other things, the 1951 Peace Treaty can be the evidence of the Japanese rule (1910–1945) being a fait accompli. Even if the Japanese rule was illegal, the issues of South Korean tort claims were already settled by the 1965 Claims Agreement and/or the 2015 Agreement. The ROK government should acknowledge its legal responsibility to satisfy South Korean claims including the so-called Comfort Women victims under the related agreements with Japan. In regard to other issues such as sexual slavery and/or Crime against Humanity, if a diplomatic solution is not available to the ROK and Japan, the two countries should better agree to submit the issues before an ad hoc international tribunal or the ICJ. This would be the only way to break the vicious circle.