Not “Final and Irreversible”: Explaining South Korea’s January 2018 Reversal on the “Comfort Women” Agreement

Written by Hyun-Soo Lim*

Approximately two years ago, the Foreign Ministers of South Korea and Japan announced that they had “final[ly] and irreversibl[y]” resolved the issue of Japanese wartime sexual slavery.[1] In doing so, they were attempting to address one of the most serious human rights issues in East Asia and a major source of tension between the two countries. But after events last month, the talk of finality is in doubt. In this post, I explain the weaknesses that plagued the agreement from the start, and why it has come close to unraveling.

A Resolution that Wasn’t

In December 2015, the South Korean and Japanese foreign ministers appeared at a joint press conference to deliver a stunning announcement: the two countries agreed to “final[ly] and irreversibl[y]” resolve the issue of Japanese wartime sexual slavery (“the Announcement”). The Announcement consisted of four main elements: (i) an apology from the Foreign Minister on behalf of Prime Minister Abe to the South Korean victims of Japanese military sexual slavery; (ii) Japan’s promise to deliver more than $8 million to a support fund for survivors; (iii) South Korea’s assurance that it will address Japan’s concern over the “girl statue” placed in front of the Japanese Embassy in Seoul in honor of the victims; and (iv) a mutual agreement to refrain from accusing or criticizing each other regarding the issue in the international community.

After decades of activism by survivors, human rights groups, and international human rights bodies, the Announcement came as a surprise. Prime Minister Shinzo Abe had consistently justified Japan’s war crimes during World War II— and, on occasion, even denied that the women were forced into sexual servitude. The deal was so unlikely that some have suggested that the Obama administration had pushed the deal heavily, as the United States is vested in a stable relationship between its two major allies in the Pacific.

But the Announcement faced immediate backlash. Many survivors refused the Japanese payment, rejecting the Announcement on both substantive and procedural grounds: the negotiations had been conducted entirely in secret, without any input from the survivors or their advocates, and failed to acknowledge Japan’s legal responsibility. The U.N. Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) echoed the victims’ call for an official apology recognizing State responsibility, as well as adequate reparations that “protect and uphold the victims’ right to truth, justice and reparation.”

The critical sentiment was so strong that all candidates, across the political spectrum, in the South Korean presidential election in May 2017 promised to either nullify or renegotiate the agreement. South Korean President Moon Jae-in delivered on this promise in December 2017, acknowledging the agreement’s inadequacy and ordering a ministerial review of the negotiations process.

On January 9, 2018, South Korean Foreign Minister Kang Kyung-hwa reported the findings. To Japan’s dismay, the minister declared that the 2015 announcement does not, in fact, represent “a genuine resolution” of the issue, and added that South Korea would designate its own $8.8 million fund to care for the survivors and would continue discussions on what to do with the payment from Japan. Nonetheless, South Korea admitted that an official deal had been made and said it would not attempt to renegotiate it.

In other words, the South Korean government fell short of scrapping the deal altogether, but essentially backtracked on the “finality” and “irreversibility” of the agreement which Japan had persistently demanded. Prime Minister Abe immediately balked at this nuanced change in stance, dismissing the idea that Japan would issue additional statements acknowledging the war crime. Thus, the current standing of the Announcement, and the state of the “Comfort Women” issue, is far from clear.

Legal Standing of the Agreement

Dubious from the start

The nature of the 2015 agreement was puzzling from its inception. It was not only publicized at, but took the form of, a joint press conference by South Korean and Japanese foreign ministers. Moreover, it consisted of each foreign minister reading a separate statement on behalf of each country and making promises only for what each country would do on its own. There was no joint statement.

Some in the South Korean legal establishment immediately pushed back. The country’s judiciary demanded that the administration clarify the agreement’s legal nature, to which the executive branch responded that there “does not appear to be a treaty.” And in response to a FOIA-like request from South Korean lawyers, the Ministry of Foreign Affairs confirmed that there was no written text accompanying the Announcement.

The oral nature of the Announcement, the absence of an accompanying text, and the fact that there were two separate statements—not explicitly acceded to by the other party—are particularly relevant under international law: they pose serious obstacles to understanding the Announcement as a binding bilateral agreement.

Under international law, a legally binding bilateral or multilateral instrument is often referred to as a “treaty,” a generic term that could refer to a variety of accords or conventions.[2] It is uncontroversial that whatever the parties call the agreement is irrelevant to judging whether an international engagement has an obligatory character. But this also means that not all communications promising or pledging something amount to a “treaty,” or an internationally enforceable agreement.[3]

The 1969 Vienna Convention on the Law of Treaties (VCLT), the first inter-State codification of the rules governing treaties at a universal level, explicitly excludes oral agreements from the scope and definition of a treaty.[4] Nevertheless, the VCLT also recognizes that oral agreements may possess legal force.[5] This is consistent with customary international law, under which international agreements need not take a particular form.

So what matters? Intention of the parties, rather than form, is the central question in determining whether a treaty has been concluded. At a minimum, a treaty requires the contracting parties to have “intended to create legal rights and duties in the engagement they have concluded.”[6] As such, some scholars have pointed to the Announcement’s lack of conspicuously obligatory terms (e.g. A shall, B must), along with the absence of any clause defining a breach or its consequences, to argue that the statements were more of a gentlemen’s handshake than a legally binding treaty.[7]

The lack of an underlying text signed by both parties raises substantial doubt as to whether the parties ever came to an agreement at all. Fatally, Professor Seung Ju Bang has pointed out that not only do the statements read at the press conference differ from the outlines of the agreement posted on the foreign ministry websites of the two countries, the outlines also differ from each other.[8] Put simply, there are small but material differences in the South Korean and Japanese versions of the agreement.

For instance, at the press conference, both countries stated that the issue’s “final and irreversible resolution” depends on “above-mentioned measures” being steadily or faithfully implemented. The South Korean outline later posted on the Ministry of Foreign Affairs’ website also describes the precondition that “the above-mentioned measures stated by the Government of Japan [be] faithfully implemented” (emphasis added). But the outline posted by the Japanese Foreign Ministry phrases the premise as “the Government will steadily implement the measures specified in (2) above” (emphasis added). In other words, the Japanese text, unlike the oral announcement at the press conference, limits the premise of the implementation to a one-time contribution to the fund for survivors, rather than the entire statement. Yet, even the Japanese outline has the South Korean foreign minister stating that refraining from criticizing each other in the international community will happen “on the premise that the Government of Japan will steadily implement the measures it announced” (emphasis added), and not limited to the fund contribution. Therefore, it is ambiguous whether the two countries actually agreed on the exact premise upon which their agreement rested to resolve the issue. Indeed, Abe’s Deputy Chief Cabinet Secretary told journalists that the two countries “did not discuss point by point” whether the removal of the girl statue was a premise of the deal’s implementation.

Admittedly, many treaties are plurilingual, some of which do not have a “master” text with clear authority. When the translations conflict, international courts compare relevant texts in order to ascertain the intention of the parties. However, the issue here extends far beyond issues of translation. This lack of a single “official” or “authentic” text (even aside from translations) leaves the Announcement particularly vulnerable to the charge that the parties lacked the necessary intention. There was no common set of remarks, but only separate statements, with each foreign minister carefully refraining from officially “signing onto” the other’s remarks.

Preventing this kind of confusion is precisely why the International Law Commission decided to limit treaties to a written form while drafting the VCLT. The Commission recognized that the interests of clarity and simplicity would be better preserved in a written form. It anticipated that progress in telecommunications would only lead to a proliferation of unwritten promises or pledges, causing controversy over the exact definition of a legally binding agreement.[9] The Restatement (Third) of the Foreign Relations Law also reflects this concern, stating that the terms of an oral agreement, while no less binding, “may not be readily susceptible of proof.”[10]

Given these concerns of ambiguity and vagueness of an oral announcement with no accompanying text, it is difficult to believe that South Korea and Japan seriously intended the Announcement to function as a treaty. Both sides were fully aware of how contentious and sensitive this issue has been for the past twenty-six years. They also knew from experience that the South Korean public and survivors had in the past rejected similar expressions of apology and pledges of funding when they fell short of official acknowledgement of legal responsibility.

Furthermore, there was no practical barrier to discussing or concluding a treaty in its conventional sense, if that is what the parties had actually wished to do. The only probable explanation for their haphazard attempt at resolution, then, is that the Announcement was not meant to be binding at all. President Park Geun-hye could not consent to an irreversible deal before gauging the public reaction; the Japanese government reportedly wished to finalize an official document, but the Park administration wanted to delay drafting a written form out of “concerns for public opinion trends.”

A material breach?                                                                          

 Even if we were to assume that the Announcement was meant to be an agreement (albeit not a treaty), it is likely that there has already been a breach. The purpose of the so-called agreement is clear: to achieve a common understanding that there has been an adequate apology and compensation, and that the two sides have reconciled and moved beyond the past atrocity of military sexual slavery. Borrowing language from the law on treaties, any “violation of a provision essential to the accomplishment of the object or purpose of the treaty”[11] is a material breach, and “entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.”[12]

From South Korea’s perspective, it did not take long for Japan to arguably violate the spirit, if not the letter, of the Announcement. A central tenet of the Announcement was Japan’s “most sincere apologies and remorse to all the women who underwent immeasurable and painful experiences . . . as comfort women” and its recognition of (albeit ambiguous) “responsibilities.” Yet Prime Minister Abe contradicted his apology within three weeks of the Announcement, assuring the Japanese Parliament that there was no evidence of forced mobilization of the women.

Moreover, the Announcement stated that the two governments would “refrain from accusing or criticizing each other regarding this issue in the international community.” The application to South Korean criticism of Japan regarding its war crimes record is clear. But the clause also applied to Japanese criticism of South Korea: indeed, before the agreement, political and social leaders in Japan had accused South Korea of fabricating the forced nature of military sexual slavery for political aims. Yet Foreign Minister Kishida reinvoked Japanese revisionism, stating that the “Comfort Women” should not be described as “sex slaves” since “the term does not match the facts.” And Deputy Foreign Minister Sugiyama repeated Abe’s whitewashing of the crime at a major international forum a month later, arguing that Japan knew of no documents supporting that the women were “forcefully recruited.” These statements seem awfully close to breaching a promise to “refrain from accusing or criticizing” South Korea since they challenge the latter’s demonstration of the forced nature of sexual slavery.

Japan’s argument for a breach is possibly even stronger. Japan has noted the South Korean government’s failure to remove the girl statue in front of its embassy in Seoul. In fact, this symbol has been given greater potency as new “girl statues” are being erected across the country and abroad by civil society. Even though the parties technically agreed only to “strive to solve [the ‘girl statue’ issue] in an appropriate manner,” Japan appears to have interpreted this promise to mean that the South Korean government would put pressure on the public to remove the statues. (By contrast, the South Korean government stressed that it does not have the right to order removal of something set up by civic groups.) Most importantly, despite her insistence that South Korea has not abrogated and will not attempt to renegotiate the deal, South Korean Foreign Minister Kang Kyung-hwa’s recent declaration that the 2015 agreement cannot be a genuine solution to the “Comfort Women” issue seems to represent an additional breach. Indeed, it contradicts the finality and irreversibility that were at the heart of the Japanese demands.

The Way Forward

In sum, South Korea’s nuanced change of stance regarding the “Comfort Women” agreement of December 2015 reflects the reality that the agreement had fatal flaws both legally and politically. The agreement’s failure to properly consult with the victims and to follow international guidelines on settlement of war crimes has severely—and in my view, rightfully—undermined it.

Regardless of Japan’s persistent denial of legal responsibility, the survivors’ persistence will sustain the issue’s importance in bilateral relations and the international community. Yet with only thirty-one “grandmother” survivors remaining in South Korea, time is running out on the opportunity for serious inclusion of victims’ voices in a Japanese-South Korean reconciliation project. If the two governments wish to resolve their differences in a sustainable manner, they should work together to heed the wishes of the survivors and the recommendations from the international human rights community—and they would do well to put their agreement into writing. A politically expedient compromise that papers over disagreements and lacks the blessing of survivors will simply not endure.

_______

*Yale Law School, J.D. Candidate, 2018

[1]The term “Comfort Women” refers to as many as 400,000 women who were deceived, trafficked, or forced into Japanese military sexual slavery in the 1930s and the Second World War. The vast majority of “Comfort Women” came from Korea (then under Japanese colonial rule), but the victims came from almost every country under Japanese influence in Southeast and Northeast Asia. The victims were held prisoners in army bases or prostitution houses throughout Asia, where they were repeatedly raped and abused daily, some for years. Most women were between the ages of eleven and twenty.

[2] Denys P. Myers, The Names and Scopes of Treaties, 51 Am. J. Int’l L. 574, 574-605 (1957).

[3] For instance, the International Court of Justice held that a letter sent by Nicaragua to the Organization of American States was a “political pledge” only, without legal effects, because it contained no concrete commitments. The concept of “agreement” therefore needed some sort of bilateral communication regarding a commitment. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 261 (June 27) (“However, the Court is unable to find anything in these documents, whether the resolution or the communication accompanied . . . from which it can be inferred that any legal undertaking was intended to exist.”)

[4] Vienna Convention on the Law of Treaties art. 2(1)(a), May 23, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 67 [hereinafter VCLT].

[5] Id. art. 3(3) (“The fact that the present Convention does not apply . . . to international agreements not in written form … shall not affect: (a) the legal force of such agreements . . . .”).

[6] P.K. Menon, The Law of Treaties between States and International Organizations 10 (1992).

[7] See, e.g., Choung Jaemin, The Relationship between the Decision of the Constitutional Court of Korea and the Intergovernmental Agreement with respect to the “Comfort Women” Issue, 61 Korean J. Int’l L. 189, 213 (2016) (Choung, a district court judge in South Korea, does not believe that the Announcement has any legal force); Cho Shi-hyun, Legal Meaning of the 2015 Korea-Japan Agreement, 60 Democratic Legal Stud. 79, 97 (2016).

[8] Seung Ju Bang, Constitutionality of the Agreement between the Foreign Affairs Ministers of the Republic of Korea and Japan on the Issue of “Comfort Women” on 28 December 2015, 10 Vienna J. on Int’l Const. L. 400, 419-20 (2016).

[9] Int’l Law Comm’n, Commentary to art. 3 of the Vienna Convention on the Law of Treaties.

[10] Restatement (Third) of the Foreign Relations Law of the United States, § 301 cmt. b (1986) (suggesting that it would be difficult to prove the terms of the agreement where there is no text to ascertain the existence of specific terms).

[11] VCLT, supra note 4, art. 60(3)(b).

[12] Id. art. 60(1).

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