Research Group on 'Korean Peninsula' FY2021－# 2
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Today's relationship between Japan and the ROK has been called the "1965 system" after the year the two countries normalized their diplomatic relations. In recent years, the Japanese and ROK governments have been severely challenged by a series of rulings from the Korean judiciary that have shaken this framework. In 2021, however, Korean judges began handing down judgments diametrically opposed to these earlier rulings, a development that can be welcomed by the Japanese government. All these decisions came shortly after President Moon Jae-in's New Year's press conference calling for improved relations with Japan.
Will President Moon Jae-in's "intervention in the judiciary" work?
President Moon's press conference held early in the new year at the Korean Presidential Office (Blue House) on January 18, 2021 featured the following three important points related to Japan:
- the president was honestly rather bewildered by the additional issue of ruling on the comfort women issue,
- he acknowledged that the 2015 Japan-ROK agreement on the comfort women issue was an official agreement, and
- he said it undesirable for the bilateral relations that (the assets of the defendant Japanese company that lost the wartime laborers case) be forcibly liquidated to enforce the court ruling.
The comfort women decision issue that President Moon mentioned as additional was the decision of the Seoul Central District Court made 10 days before this press conference that ordered the Japanese government to pay compensation. These statements all show that he, as the head of the government, went one step further than ever in expressing negative views on judicial decisions ordering the Japanese government and companies to pay compensation.
After this press conference, at the end of March, the judiciary made a surprising decision for the Korean government and the plaintiffs. Following the previous ruling that had ordered the Japanese government to pay compensation, the plaintiffs demanded that Japanese government assets be seized to cover legal costs, but the court decided on its own accord that there was a risk of violating international law. Furthermore, in April in similar proceedings involving comfort women seeking compensation from the Japanese government, the court accepted Japan's assertion of sovereign immunity (a principle in international law whereby the jurisdiction of one state does not extend to other states) and dismissed the plaintiffs' complaint. In other words, the court issued a legal decision that was contrary to the decision already made final in January.
This pattern was seen in a case pertaining to wartime laborers as well. In June, the court dismissed the plaintiffs' complaint by emphasizing international law in a trial in which the bereaved families of former wartime laborers were suing 16 Japanese companies. It was a judgment that was in direct contradiction to the one issued by the Supreme Court of the ROK.
Various speculations flew around these judgments. Some suggested that the court had surmised the intentions of the Moon Jae-in government and been strict on Japan when the government had taken a hardline stance, and started to issue more conciliatory decisions once the government began to call strongly for an improvement of relations. It was also hinted that the government may have made some request to the judiciary.
If so, the Moon administration's appeal would resemble that by the earlier Park Geun-hye government requesting procrastination in a Japan-related ruling, despite the fact that it had severely condemned the former government for collusion between the administration and the judiciary, which would inevitably draw criticism against the government.
Accelerating judicial activism in the ROK
Considering the current state of the Moon administration, however, it seems that both suggestions are extremely improbable. One of the reasons is that the Blue House and the ROK Ministry of Foreign Affairs have made inaccurate predictions about successive rulings during this period. About the comfort women trial in January, they anticipated that the Japanese government's claim to sovereign immunity would be applied and the plaintiffs' complaint would be dismissed; in fact, they even hinted at this in discussions with the Japanese side. Conversely, before the decision in April, which recognized Japan's sovereign immunity, they believed the trial would have the same outcome as the one in January and prepared their responses on the premise that the plaintiffs would win the case.
It can also be pointed out that the Moon administration did not necessarily welcome the series of judgments that reflected the Japanese government's claims to some extent. In other words, some speculations about the court presuming the government's intentions seem unlikely because the judgments did not have a significantly positive effect on relations with Japan. The ruling that did not recognize Japan's sovereign immunity must have been "bewildering", as President Moon mentioned. However, once a judgment has been issued and finalized in the first instance, any opposing judgments will place the Moon administration, which has insisted on a "separation of powers" and "respect for judicial decisions" in a dilemma.
If President Moon's speech influenced the judicial decision, it would have been in the sense that it reduced the burden of having the "conventional wisdom" advocated formerly by the government, and especially diplomatic authorities, reflected in the judgment. There is no doubt that the ruling ordering the Japanese side to pay compensation is underpinned by the ROK's judicial activism. That is probably why the court did not hesitate to step into diplomatic issues that fall under the jurisdiction of the government.
On the other hand, it can be said that the decisions after the speech are close to the stance that ROK diplomatic authorities have maintained so far. The wobbling between nationalists and internationalists that has characterized the Moon administration since its inauguration seemed to support the rulings of judges holding to a traditional internationalist position, and if this is so, the "intervention in the judiciary" in Moon's style through his speech can be said to have been effective to a certain extent.
Gradually approaching "X-Day"
However, as a fundamental issue, this stability has its limits because there has been no firm agreement with the judiciary. With the passage of time following the speech, nationalist judgments began to emerge from the judiciary as if a spell had worn off.
One such decision was issued in June, ordering the Japanese government to submit a list of its property in the ROK. Regarding the decision in the comfort women proceedings in January, which had ordered the Japanese government to pay compensation, there was a decision at one point seemingly rejecting compulsory execution, but this was reversed with a change in judges.
Furthermore, in August, a judge at the ROK's Suwon District Court issued an order permitting the seizure of funds to be paid by the Japanese defendant company (the claims that the company holds against a company in ROK) that lost in the wartime laborers trial (the plaintiffs later withdrew their seizure request and the court lifted the order). The fact that one branch of the district court is responsible for making important decisions that could greatly shake bilateral relations, even though these decisions belong to the judicial domain, clearly shows how unstable Japan-ROK relations are.
In response to this order, the Japanese company took procedures such as immediate appeal, and the liquidation will not be carried out immediately. However, it is undeniable that the matter has come one step closer to the "X-Day" of compulsory execution. The Japanese government in those days of most hardline stance vis-à-vis the ROK would very likely have already undertaken countermeasures at the point that a Japanese company suffered actual harm.
In such an unstable situation, President Moon began to take "action" in relation to Japan. At every opportunity, he stated that "the door to dialogue is open" to Japan, expressing his intention to improve relations. He instructed working-level personnel to conduct consultations to realize his visit to Japan for the opening ceremonies of the Tokyo Olympic Games in July. His visit to Japan itself was agreed at an early stage between the two countries, as reported by a string of media outlets. Many twists and turns over "results" occurred thereafter, however, and ultimately the visit to Japan itself ended up illusory. Within the Japanese government, there was widespread puzzlement about why President Moon thought he had to go to such lengths to come to Japan, with officials not being able to figure out his true intentions.
Burden of worsening relations with Japan
However, for President Moon, who had a strong desire to find a way to improve relations with Japan in 2021 as he suggested at his New Year's press conference, his intended visit to Japan for the Olympics was an extension of that idea.
It is popularly said that one of the reasons behind the changes in President Moon's policy toward Japan was the inauguration of the Biden administration in the United States. Unlike the previous Trump administration, the new administration, which emphasizes alliances, is calling on both Japan and the ROK to improve their relations as soon as possible.
Considering the ROK's political situation and its future political schedule, it seems that domestic factors also loom quite large. The Japanese government's measures to tighten restrictions on exports to the ROK in July 2018 rapidly worsened Korean society's image of Japan, but this rancor gradually faded over time. The price of worsening relations with Japan, such as the watering down of the comfort women agreement between the two governments, has returned as a heavy burden for the Moon administration approaching its end. The Moon administration may be still seriously seeking to improve relations with Japan while avoiding major concessions.
As a practical matter, the next presidential election in March next year to choose Moon's successor is quickly approaching. The ruling party's official candidates will be narrowed down and decided this autumn. It should be avoided that the new administration, especially if the ruling party candidate is elected, be handed down such difficult task that might explode at any time with compulsory enforcement by the judiciary.
However, since the ROK Supreme Court's October 2018 ruling ordering Japanese companies to pay compensation, the main issue between Japan and the ROK has been President Moon's own political decisions, and the situation is said to have become as serious as it is because he has been unable or unwilling to make decisions. The question remains whether he can make a major decision in the closing days of his administration with the finish line in sight. Put another way, this also represents a choice between national sentiment and national interest in the ROK.
Despite the prevailing pessimistic mood, working-level officials in both the Japanese and ROK governments are fully aware of the significance of dealing with historical issues under the Moon government with its strong nationalist orientation. Although domestic politics in Japan will also have an important role to play, if considering the situation with specific focus on the circumstances in the ROK, the window of opportunity for finding common ground, however slight it might be, will only be open from October, when the candidates for the presidential election will be decided, to the end of the year.
(This is English translation of Japanese paper originally published on September 9, 2021.)