South Korea Court Ruling on Former Comfort Women Worsens Bilateral Relationship

The Yomiuri Shimbun

15:52 JST, January 9, 2021

The Japanese government is strongly opposed to a decision by the Seoul Central District Court in South Korea on Friday to order the Japanese government to compensate former comfort women.

The Japanese government plans to urge South Korea to rectify the violation of international law, as the court ruling denied the principle of “sovereign immunity” under international law.

It is unclear whether the South Korean administration of President Moon Jae-in will take active steps to resolve the situation, and Japan-South Korea relations may become even colder.

“We cannot accept the ruling at all,” Prime Minister Yoshihide Suga told reporters at the Prime Minister’s Office on the same day.

The principle of “sovereign immunity,” under which no state is subject to the jurisdiction of another state, is derived from the fact that sovereign states are equal to each other. It is established as customary international law. “This [the ruling] goes beyond Japan-Korea relations and concerns the very foundation of nations. It’s an unbelievable ruling,” a senior Foreign Ministry official said, with unconcealed indignation.

The 1965 Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation stipulates the issue of claims between Japan and South Korea is settled “completely and finally.”

On the comfort women and other issues, South Korea has disregarded the agreement. However, the senior official said: “[The latest ruling] goes beyond disregard of the agreement; it is something that directly undermines the relationship between the two countries,” suggesting that the ruling took the ministry by surprise.

There are concerns that South Korean individuals may file lawsuits against the Japanese government one after another in the future.

The Seoul Central District Court stated that sovereign immunity does not apply to the lawsuit over the comfort women issue, saying that Japan’s actions had violated “jus cogens,” or norms that cannot be deviated from under international law.

However, a 2012 International Court of Justice (ICJ) ruling in a dispute between Germany and Italy over German military actions during World War II ruled that even if Germany’s actions violated jus cogens, it was not a reason to deny sovereign immunity.

Waseda University Prof. Hiroyuki Banzai, who specializes in international law, commented on the ICJ ruling. “The recognition of sovereign immunity does not mean acceptance of violation of jus cogens. They are just two separate matters,” he said.

“The decision of the Seoul Central District Court is a judgment that feels strange to me regarding how the interpretation of sovereign immunity can be distorted this far,” Banzai added.

The Japanese government is cautious about bringing the case to the ICJ because it could become an opportunity to spread South Korea’s claims internationally. For the time being, the government plans to wait and see what the South Korean government does.

The Seoul Central District Court has also granted provisional execution of the ruling, so that the plaintiffs can apply for seizure of Japanese government property in South Korea even if the Japanese government appeals.

“We have to assess whether there is any [Japanese] property in Korea that could be subject to seizure,” a lawyer representing the plaintiffs told reporters after the ruling.

If the South Korean side decides to seize such property, the Japanese government is prepared to take strong countermeasures.

However, since state property is also subject to sovereign immunity, some in the South Korean government believe that it would be difficult to seize it without Japan’s consent.