著者

山田 哲也

出版者

一般財団法人 アジア政経学会

雑誌

アジア研究 (ISSN:00449237)

巻号頁・発行日

vol.66, no.4, pp.88-102, 2020-10-31 (Released:2020-11-19)

参考文献数

13

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In this article, the author analyses two judgements of the Supreme Court of Korea regarding the payment of compensation to the Korean war time laborers from the view point of public international law. Some of them are said to be forced or deceived at their recruitment by the Japanese private companies. In the judgement of 30 October 2018, the Court adjudicated that the Japanese company were still liable to compensate against the damage caused by such enforcement or deception.However, the Japanese Government has reacted and protested against this judgement through the diplomatic channel. This is because, according to the Japanese Foreign Ministry, the issue of the compensation to the Korean war time laborers was already legally settled through the Japan-Republic of Korea Basic Relations Treaty and the Japan-Korea Claims Agreement of 1965. As the basic principle of public international law, particularly the basic principle of the law of the treaties, every treaty in force is binding upon the parties to it and must be performed by them in good faith (the principle of “pacta sunt servanda”). At the same time, a party to each treaty may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Therefore, Japan has alleged that the 2018 Judgement were internationally illegal and that the Korean Government were obliged to suspend the execution of the judgement. On the other hand, Moon Jae-in Administration has been supportive to the 2018 Judgement and refused to refer to arbitrate provided in Article 3 (2) of the Claims Agreement. As a result, Japan-Korea relation became dramatically worse and no one can foresee when the bilateral relation would get out from this situation.This Japanese-Korean confrontation originally caused by the interpretation of the legality of the annexation (colonization) under the 1910 Treaty. Japan has regarded that the 1910 Treaty was concluded legally in light of the legal situation of the beginning of the 20th century. On the contrary, Korea has never accepted the legality of the 1910 Treaty. Therefore, at the time of the conclusion of the Basic Treaty of 1965, the provision that “[i]t is confirmed that all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void” (italics added) was inserted. This article means that the both parties agreed to disagree about the legality of the 1910 Treaty.In conclusion, the author points out that, as far as the Moon Administration’s policy on reconsideration of the past history and policies under the military or conservative régime continues, Japan would have to deal with such “historical” issue again and again. At the same time, the author points out that what is needed by the Japanese Government is the calm diplomacy with well-grounded (international) legal opinion.