The gist of the Court’s opinion is that: (1) Korean government did not do enough to vindicate the rights of Comfort Women (and also those Koreans who were irradiated from Hiroshima and Nagasaki), and; (2) such inaction violated the constitutional rights of surviving Comfort Women and other victims of Imperial Japan. Therefore, the Court ordered the government to proceed under the dispute resolution procedure provided for in the treaty at issue. (“이 사건 협정 제3조에 의한 분쟁해결절차로 나아가는 것만이 국가기관의 기본권 기속성에 합당한 재량권 행사[.]“)
The treaty at issue here is Treaty on Economic Cooperation Regarding Property and Petition Rights (“재산 및 청구권에 관한 문제의 경제협력에 관한 협정“). This is the infamous treaty under which, arguably, Korean government (under the rule of Park Chung-Hee at the time) signed away the Comfort Women’s right to petition the Japanese government for reparation. Article 3 of the Treaty provides a dispute resolution procedure: First, Korea and Japan should attempt to resolve the dispute through diplomatic channels. Second, if the dispute cannot be resolved through diplomatic channels, an arbitration panel with three arbiters is to be formed — one arbiter chosen by each country, and the third arbiter chosen by the two arbiters.
The Court’s opinion is not 100% clear on what exactly Korean government must do to vindicate the constitutional rights of the Comfort Women. Already, Ministry of Foreign Affairs and Trade summoned the Japanese ambassador to inform him of the decision, and asked for a more active and sincere attitude toward the resolution. It is not likely that such a step will be enough, given that Korean government has exactly the same thing for the last decade and the ball has not moved forward. But how far will the government have to go to satisfy the Court?
(This is where there can be a pretty strong parallel to Brown v. Board of Education. Remember, that decision alone did not bring about school desegregation — the U.S. Supreme Court had to decide over and over again that a particular measure of desegregation over a particular jurisdiction was not good enough.)
The craziest part is — what if the Court is not satisfied by anything other than going through with the arbitration, as provided in the Treaty? And what if there actually is an arbitration that will decide, once and for all, who will end up having all the marbles? Either way the arbitration comes out, the consequences will be earth-shattering for both countries. That could potentially serve as a leverage for both countries to work it out diplomatically, but it does not seem likely that either government would be particularly inclined to it. Lee Myoung-Bak is happy not to make any waves at this point of his tenure, and Noda Yoshihiko thinks Japanese war criminals are not really war criminals.
The Korean does not want to jump the gun, so he will save outlining the potential issues to be decided by the possible arbitration for some other time. But this can really be a game changer in Korea-Japan relationship, and it bears continued monitoring.
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