November 5, 2018
On October 30, 2018, the Korean Supreme Court rejected an appeal by Nippon Steel & Sumitomo Metal against a previous lower court decision, recognizing the right of four plaintiffs who had been forced into labor at the Japanese steel mills to receive damage compensation from the company. The court ruled that the steelmaker should provide compensation of 100 million KRW (about 10 million JPY) to each of the four plaintiffs.
The court ruled that the plaintiffs’ right to seek compensation constituted the right to compensation for pain and suffering from the Japanese company for its inhumane, unlawful activities directly related to the Japanese government’s unlawful colonial rule of Korea and its war of aggression. It also ruled that their right to seek compensation was not subsumed by the Agreement between the Republic of Korea and Japan Concerning the Settlement of Problems in Regard to Property and Claims and Economic Cooperation signed in 1965 (hereinafter the “Korea-Japan Claims Settlement Agreement”) and that neither the Korean government’s right of diplomatic protection nor the plaintiffs’ individual rights to seek compensation had been extinguished.
At a meeting of the House of Representatives on October 30, 2018, Japanese Prime Minister Abe stated that the right of individuals to seek compensation had been “completely and finally” settled by the Korea- Japan Claims Settlement Agreement, and that the Japanese government would “respond resolutely” to the ruling, which he described as “impossible in light of international law.”
However, Prime Minister Abe’s response was based on a lack of accurate understanding of the Korea-Japan Claims Settlement Agreement and international law. Also, his “resolute response” alone would not help achieve a true resolution of the forced labor issue.
The following is proposed as a way of seeking a true resolution to the forced labor issue. It is based on an accurate understanding of the fundamental nature of the problem and of the Korea-Japan Claims Settlement Agreement.
1. The forced labor issue is fundamentally a human rights issue
The plaintiffs were forced to labor in brutal and dangerous conditions. As part of their jobs, they had to manually inject coke into blast furnaces, at the risk of electrocution. Moreover, they were exposed to abominable circumstances: they were not paid for their work, given scant amounts of substandard food, prohibited to leave, and faced physical punishment for any attempts to escape. This constitutes forced labor (See ILO Forced Labor Convention, 1930 (No. 29)) and slavery (See the 1926 Slavery Convention), and a serious violation of human rights.
This case was filed by the plaintiffs to seek remedies for the serious human rights infringement they had suffered. It is also an issue that demands a resolution for society as a whole. A true solution is one that is both satisfactory to the victims and acceptable to society. An intergovernmental agreement that is unacceptable to the victims and society cannot be deemed as a true solution.
2. The individual right to seek compensation has not been extinguished by the Korea-Japan Claims
Settlement Agreement
The entity responsible for forcing brutal and dangerous labor upon the plaintiffs and exposing them to atrocious living and working conditions is Nippon Steel & Sumitomo Metal; therefore, the latter is responsible for compensating the victims.
This case occurred during Japan’s colonial rule of Korea following the Japan-Korea Annexation Treaty of 1910, when Japanese government offices arranged forced labor in accordance with an official guideline published by the Japanese government in 1942 (Chosenjin Naichi Inyu Assen Yoko, 朝鮮人内地移入斡旋要綱) to secure a labor force from its colonies in support of its war, and when Koreans were conscripted pursuant to the Japanese government’s 1944 National Requisition Ordinance (Kokumin Chouyourei, 国民 徴用令), which became effective throughout the Korean Peninsula. As such, the Japanese government could also be held accountable for damages.
Since this case only involves Nippon Steel & Sumitomo Metal, a major controversy focused on whether or not the plaintiffs’ right to seek compensation from the company had been extinguished by the provision of “complete and final settlement” in paragraph 1 of Article 2 of the Korea-Japan Claims Settlement Agreement.
In this regard, the Korean Supreme Court ruled that the plaintiffs’ right to seek compensation was not subject to the Korea-Japan Claims Settlement Agreement, and that neither the Korean government’s right of diplomatic protection nor the plaintiffs’ individual rights to seek compensation had been extinguished.
With regard to compensation issues between Japan and China, the Supreme Court of Japan had ruled that the right of diplomatic protection had been waived. However, with respect to the right of individuals to claim reparations for damages, it had ruled that “the term "waiver" of claims in this context does not mean to effectively extinguish claims but it only means to have the competency of these claims in litigations lost ” (Supreme Court of Japan, judgment of April 27, 2007). The interpretation of the Supreme Court of Japan and of the Japanese government is that the same logic applies to the “complete and final resolution” provision of the Korea-Japan Claims Settlement Agreement.(1
Based on this interpretation, because an individual’s fundamental right to seek compensation has not been extinguished, Nippon Steel & Sumitomo Metal can legally make voluntary compensatory payments, and the Korea-Japan Claims Settlement Agreement does not present a legal obstacle in this case.
Prime Minister Abe stated that an individual’s right to seek compensation had been “completely and finally resolved” with the Korea-Japan Claims Settlement Agreement. However, if his statement implies that the victims’ right to seek compensation had been completely extinguished, it is an incorrect statement that failsto fully understand the ruling of the Supreme Court of Japan. Furthermore, if his statement was meant to be in line with the ruling of the Supreme Court of Japan, it is misleading to rely solely on the “complete and final resolution” provision to make the case that all rights to seek compensation had been extinguished, since the rights of individuals were not substantively extinguished and no resolution had been made on how to deal with them.
Given the Japanese government’s opinion that the Korea-Japan Claims Settlement Agreement forfeited the right to diplomatic protection, and that individual rights to seek compensation had not been extinguished, one can only question whether Abe’s response is in accord with the views of the Japanese government.(2
3. The ruling is in line with advances in international human rights law that values remedies for
individual victims
The notion that an individual’s right to seek compensation for serious human rights infringements, as reflected in this particular case, cannot be unilaterally extinguished by intergovernmental agreements without the consent of the victim can be found in other international examples (for instance, the Italian Supreme Court ruling regarding the Italian victims of a Nazi massacre in Civitella). This notion, which is not unusual in international circles, is the result of advances made in international human rights law to find effective remedies for human rights infringements against individuals (see Article 8 of the Universal Declaration of Human Rights). Thus, the Korean Supreme Court’s ruling cannot be “impossible in light of international law.”
4. Following the ruling, Korea and Japan should seek a fundamental solution, rather than criticize
one another
Given that the case is essentially a human rights infringement issue, the focus should be placed on seeking human rights relief for the victims. Nippon Steel & Sumitomo Metal should accept the ruling of the Korean Supreme Court, recognizing that it infringed upon human rights and is responsible for those actions. Itshould act in a way that is acceptable to the victims and to society, which would include issuing an apology as well as making compensation payments.
With examples such as the Hanaoka Case, the Nishimatsu Construction Co. case, and the Mitsubishi Materials case, all of which concern with the forced labor of Chinese people, the Japanese companies recognized and apologized for their wrongdoings, and as evidence of their remorse, contributed funds and established foundations to provide remedies to all of the victims. The remedies included not only monetary payments to individual victims, but also the erection of a memorial stone and inviting Chinese victims to annual memorial services.
Nippon Steel & Sumitomo Metal should also take the initiative to come to terms with all of the victims of forced labor. From the company’s perspective, this can help build international trust and, in the long term, foster the company’s reputation. Other Japanese companies involved in similar lawsuits in Korea should also start working to find a fundamental resolution based on this ruling, and hopefully the business community as a whole will also support these efforts.
The Japanese government should recognize its own responsibility and thus, support the efforts for a fundamental resolution, rather than preventing Nippon Steel & Sumitomo Metal and others from voluntarily working to resolve the issue.
Once again, we urge Nippon Steel & Sumitomo Metal and the governments of Korea and Japan to recognize that this case is fundamentally a human rights issue, and to work towards a fundamental resolution. At the same time, we also express our resolve to exert our utmost efforts to seek a resolution.
1) See Seita Yamamoto’s “Change in Interpretation of the Korea-Japan Claims Settlement Agreement by the Governments of Korea and Japan (2014)”, available at: http://justice.skr.jp/seikyuuken-top.html (Japanese language only).
2）Response by Shunji Yanai, Director-General of the Treaties, on December 13, 1991, at the Committee on Budget of the House of Councilors, on February 26, 1992, at the Committee on Foreign Affairs of the House of Representatives, and on March 9, 1992, at the Budget Committee of the House of Representatives, and response by Koichi Kato, Minister for Foreign Affairs, on April 7, 1992, at the Committee on Cabinet of the House of Councilors, etc.
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（Promoters/Lawyers by Japanese Alphabetical Order）
| 青木有加 | 足立修一 | 殷勇基 | 内河惠一 |
| 大森典子 | 岩月浩二 | 川上詩朗 | 金昌浩 |
| 在間秀和 | 張界満 | 山本晴太 | 崔信義 |
(Lawyers supporting and endorsing this Statement)
| 愛須勝也 | 青木佳史 | 赤石あゆ子 | 秋田智佳子 |
| 秋田一恵 | 味岡申宰 | 足立定夫 | 渥美玲子 |
| 有村とく子 | 安藤ヨイ子 | 伊賀興一 | 五十嵐二葉 |
| 池田賢太 | 李尚昭 | 石川元也 | 石田明義 |
| 泉澤章 | 泉武臣 | 一瀬敬一郎 | 井戸謙一 |
| 伊藤真 | 伊藤みさ子 | 稲村晴夫 | 猪野亨 |
| 井上洋子 | 井上明彦 | 井上正信 | 井上啓 |
| 井下顕 | 李博盛 | 今橋直 | 岩井羊一 |
| 岩佐英夫 | 植竹和弘 | 上野格 | 上本忠雄< |
| 魚住昭三 | 宇賀神直 | 内田雅敏 | 宇部雄介 |
| 尾家康介 | 大江京子 | 大口昭彦 | 大久保賢一 |
| 大塚喜封 | 大橋昭夫 | 大山弘通 | 大脇雅子 |
| 岡田克彦 | 緒方蘭 | 岡本浩明 | 小川隆太郎 |
| 奥村秀二 | 奥山泰行 | 小田幸児 | 鬼束忠則 |
| 小貫陽介 | 小野順子 | 海渡雄一 | 梶原利之 |
| 加藤裕 | 金井塚康弘 | 金子修 | 兼松洋子 |
| 冠木克彦 | 亀井千恵子 | 狩野節子 | 河合良房 |
| 川田繁幸 | 北澤貞男 | 北村栄 | 金順雅 |
| 金星玉 | 金星姫 | 金喜明 | 金奉植 |
| 金銘愛 | 金敏寛 | 金竜介 | 木村庸五 |
| 清田美喜 | 具良鈺 | 工藤勇行 | 工藤和雄 |
| 国宗直子 | 久野由詠 | 桒原周成 | 桑原育朗 |
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| 後藤富和 | 小橋るり | 小林保夫 | 小牧英夫 |
| 近藤正道 | 齋藤耕 | 斎藤匠 | 斉藤豊 |
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| 塩見卓也 | 重村達郎 | 志田なや子 | 七堂眞紀 |
| 幣原廣 | 清水善朗 | 下山順 | 城台哲 |
| 白川秀之 | 眞珠浩行 | 神保大地 | 杉島幸生 |
| 菅野園子 | 菅野昭夫 | 鈴木宏一 | 鈴木達夫 |
| 鈴木雅子 | 青龍美和子 | 空野佳弘 | |
| 宋惠燕 | 平和元 | 高貝亮 | 高木太郎 |
| 高木喜孝 | 高崎暢 | 高橋済 | 高見澤昭治 |
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| 辻田航 | 角田由紀子 | 津留雅昭 | 寺沢勝子 |
| 寺西環江> | 徳岡宏一朗 | 年森俊宏 | 冨田真平 |
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| 成見幸子 | 名和田茂生 | 新倉修 | 新山直行 |
| 西剛謙 | 西田隆二 | 西村正治 | 丹羽雅雄 |
| 野上恭道 | 野田葉子 | 野村侃靱 | 則武透 |
| 萩原繁之 | 朴憲浩 | 羽柴駿 | 長谷川一裕 |
| 長谷川直彦< | 端野真 | 林治 | 林翔太 |
| 林純子 | 林範夫 | 林真由美 | 葉山岳夫 |
| 原田學植 | 韓検治 | 韓雅之 | 玄政和 |
| 平方かおる | 平澤千鶴子 | 平田かおり | 福山洋子 |
| 藤井裕 | 藤井なつみ | 藤浦龍治 | 藤沢抱一 |
| 船尾徹 | 古川健三 | 古田典子 | 裵明玉 |
| 星野圭 | 穂積剛 | 牧野幸子 | 松岡肇 |
| 松田幸子 | 松田生朗 | 松本篤周 | 松本康之 |
| 馬奈木昭雄 | 丸山健 | 水野幹男 | 南典男 |
| 宮坂浩 | 宮里邦雄 | 宮沢孝児 | 宮下萌 |
| 宮田陸奥男 | 宮本平一 | 向山知 | 村角明彦 |
| 村松昭夫 | 村山晃 | 毛利正道 | 森川文人 |
| 森田太三 | 森山文昭 | 師岡康子 | 矢﨑暁子 |
| 安原邦博 | 養父知美 | 山内益恵 | 山口廣 |
| 山崎吉男 | 山下潔 | 山田延廣 | 山田博 |
| 山本志都 | 山森良一 | 梁文洙 | 梁英子 |
| 幸長裕美 | 横田雄一 | 吉川健司 | 吉田恵美子 |
| 芳永克彦 | 吉村功志 | 依田有樹恵 | 米倉勉 |
| 米倉洋子 | 米山秀之 | 渡辺和恵 | 渡部照子 |
（Scholars supporting and endorsing this Statement）
| 愛敬浩二 | 庵逧由香 | 上脇博之 | 右崎正博 |
| 内海愛子 | 浦田賢治 | 太田修 | 岡崎勝彦 |
| 北川善英 | 金富子 | 申惠丰 | 田中宏 |
| 田村和之 | ベヨンミ | 丸山重威 | 森英樹 |
| 安川寿之輔 | 吉澤文寿 |
(As of Jan 19, 280 lawyers, and 18 scholars, total 298 persons)