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S. Korean Supreme Court's forced labor ruling risks Japan ties, puts Pres. Moon on spot

South Korean Lee Chun-sik, center, a 94-year-old victim of forced labor during Japan's colonial rule of the Korean Peninsula before the end of World War II, sits on a wheelchair upon his arrival outside the Supreme Court in Seoul, South Korea, Tuesday, Oct. 30, 2018. (AP Photo/Lee Jin-man)

TOKYO -- The Supreme Court of South Korea's ruling that a Japanese steel firm must compensate four people forced to work at its mills during Japan's colonial rule of the Korean Peninsula from 1910 to 1945 is threatening to destabilize bilateral relations and trigger a stream of lawsuits against Japanese companies by former forced laborers.

The Oct. 30 ruling upheld a 2013 high court decision ordering Nippon Steel and Sumitomo Metal Corp. (NSSMC) to pay about 100 million won (about 10 million yen) to each of the plaintiffs. Soon after, the Japanese government declared the decision "extremely regrettable," while Prime Minister Shinzo Abe decried it as "impossible under international law."

The initial reaction from the administration of President Moon Jae-in was quick, with Prime Minister Lee Nak-yon stating that the South Korean government "wishes to develop South Korea-Japan relations in a future-oriented direction," suggesting he hoped the court decision would not adversely affect bilateral ties. Indeed, for a Moon government focused on denuclearizing the Korean Peninsula and detente with North Korea, there is no advantage to be gained from suddenly soured relations with Tokyo.

The lawsuit, which reaffirmed that Japan's colonial rule was illegal, turned on a point of language in the 1965 Treaty on Basic Relations between Japan and the Republic of Korea and related agreements. The wording of the treaty's Japanese language version is premised on the assumption that the colonial administration was legal at the time but is no longer valid. The Korean language version, meanwhile, can be interpreted to mean that Japanese rule was never valid. Bilateral relations have been balanced on this carefully selected wording ever since -- a balance that the Oct. 30 Supreme Court ruling could upset.

The court's decision also potentially opens the door to more compensation suits against Japanese companies that operated in colonial Korea, as well as against the Japanese government itself. The decision does not refer to any time limits on legal action, and the plaintiffs' legal team told a post-ruling news conference that "anyone filing suit (for damages of the same type) within a certain period would have their claim recognized." In fact, there are already 14 similar suits underway in South Korea, involving almost 1,000 total plaintiffs. And while the seven-plus decades since the end of Japan's control of the Korean Peninsula and the high age of former forced laborers may make assembling evidence difficult, some support groups continue to clamor for the chance to file suit.

Furthermore, those representing the plaintiffs pointed out that NSSMC -- ruled the legally liable successor firm to Nippon Steel Corp., which used Korean forced labor -- has assets in South Korea including shares in domestic steel giant Posco. They thus pointed to the possibility that compensation can be secured through seizing NSSMC's local assets, should the plaintiffs file such a request.

"We will decide whether to file an asset seizure request or negotiate a little further based on how conditions develop," the plaintiffs' attorney Kim Se-eun told reporters on Oct. 30.

However, moves to extract compensation through asset seizures could deal a serious blow to Japan-South Korea economic and diplomatic relations. Furthermore, it is extremely unlikely that NSSMC or Mitsubishi Heavy Industries Ltd. and other Japanese companies that are currently the defendants in separate forced labor suits, will actually pay any compensation amount ordered by a South Korean court.

If there are no efforts on the Japanese side to come to some substantive settlement with forced labor suit plaintiffs, the South Korea public could turn its ire on its own government.

In fact, two justices of the South Korean Supreme Court submitted dissenting opinions, stating that "individual claims are covered by the agreement concerning the right to compensation requests, which eliminated the plaintiffs' right to demand compensation," referring to a 1965 Japan-South Korea agreement signed at the same time as the treaty normalizing relations and which declared all reparations questions settled. That being the case, the opinions read, the plaintiffs must address their complaints to the South Korean government. According to South Korea's Yonhap News agency, some in the domestic legal community believe that the only realistic source of redress for forced labor victims now is the South Korean government.

However, this type of redress would be no different from the extra aid provided in 2005 under the administration of Roh Moo-hyun, which present day President Moon participated in as a staffer at Seoul's Blue House presidential office. The Oct. 30 ruling called the 2005 aid "nothing more than the fulfillment of (the government's) moral responsibility." In other words, the Supreme Court decision may also clash with an extra aid system that may be set up to address the human rights grievances of former forced laborers, after the question of legal compensation from Japan was settled by the bilateral accord.

Meanwhile, the Japanese government is watching Seoul's reaction, including whether it will take on the burden of compensation payments, with keen interest. If the ruling triggers a bilateral dispute, then Japan will request that the two countries enter diplomatic discussions specified under the 1965 agreement to resolve the problem. If the two countries fail to reach a settlement in such discussions, then Japan can request South Korea to form an arbitration committee, composed of both nations plus a third country.

Separately, Japan could also turn to the International Court of Justice (ICJ) to settle the issue. Japan's Foreign Minister Taro Kono told reporters on Oct. 30, "If the South Korean government does not respond resolutely (to the Supreme Court decision), it may become necessary to consider alternate measures including filing a case with an international court."

However, the ICJ can only hear international dispute cases if all countries involved agree in advance to refer their dispute to the court. If South Korea declines to make its case before the ICJ, then Japan's filing will amount to nothing more than an appeal to international opinion.

(Japanese original by Akiko Horiyama, Seoul Bureau, and Shinichi Akiyama, Political News Department)

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