③ Japan Recognized 'Individual Claims'... Could Not Use as Negotiation Card

[Aftermath of Forced Labor Solution]
Even Japan Acknowledged in 2018 the Unresolved Individual Claims from 1991
Diplomatic Protection Rights Extinct... Claim Rights Still Valid

“The issue was resolved according to the Korea-Japan Claims Agreement.” (Nippon Steel)
“The issue was completely and finally resolved according to the Korea-Japan Claims Agreement.” (Mitsubishi)

On the 6th, the victims of forced labor and the defendant companies made these statements. This came right after our government announced a compensation solution centered on ‘third-party payment.’ Both companies repeated the argument that, under the 1965 agreement, “the Korea-Japan Claims Agreement completely and finally resolved the matter,” so they bear no further responsibility for compensation.

However, Japan has not consistently maintained this position. Within the 1965 agreement, what was extinguished was diplomatic protection rights, not individual claims, as several opinions within the Japanese Cabinet have stated. Diplomatic protection rights refer to a state's authority to intervene on behalf of individuals against foreign governments. Individual claims, which are separate from the state, remain valid.

Claims that only diplomatic protection rights were extinguished also emerged in Japan

In 2018, Foreign Minister Taro Kono stated, “I am not saying that individual claims have been extinguished,” and earlier in 1991, Shunji Yanai, Director-General of the Treaty Bureau at the Ministry of Foreign Affairs, said, “Both countries have waived diplomatic protection rights, but I am not saying that individual claims have been extinguished.” Notably, a 1965 Korea-Japan Claims Agreement document obtained and reported by Yonhap News in 2010 from the Japanese Ministry of Foreign Affairs includes content stating that “individual claims remain valid even after the agreement was concluded.”

According to a report by Yonhap News at the time, the Japanese Ministry of Foreign Affairs stated in three internal documents, including "The Legal Meaning of the Waiver of National Property and Claims in the Peace Treaty" (April 6, 1965) and "The Korea-Japan Claims Treaty and Domestic Compensation Issues Regarding Private Property in Korea" (September 1, 1965), that "the meaning of Article 2 of the Korea-Japan Claims Agreement is a promise not to exercise the diplomatic protection right, which is an inherent right recognized under international law to states, and that the national property (individual claims) was not used to cover state debts," further clarifying that "this does not concern whether individuals have claims under the domestic law of the other country or not."

Of course, in 2003, the Japanese Supreme Court ruled that even if individual claims had not been extinguished under the Korea-Japan Claims Agreement, they could not be exercised (filed in court). However, statements recognizing individual claims have been made multiple times at the Ministry of Foreign Affairs level in Japan.

Japanese civil society groups supporting forced labor victims have also made similar claims. The civic group ‘Joint Action for Resolving Forced Mobilization Issues and Past Clearance’ explained in their 2020 publication ‘Korean Forced Labor Issue Q&A’ that “what was extinguished under international law was diplomatic protection rights. Individual claims cannot be extinguished by decisions between states.”

The civic group 'Joint Action for Resolving Forced Mobilization Issues and Addressing the Past' explained in their 2020 publication 'Korean Forced Labor Issue Q&A' that "What has been extinguished is the diplomatic protection right under international law. Individual claims cannot be extinguished by decisions between states."

Following Shunji Yanai’s 1991 remarks, lawsuits by forced labor victims continued. However, from this period, Prime Minister Shinzo Abe advanced the argument that “the 1965 Korea-Japan Claims Agreement completely and finally extinguished the claims,” and Japan’s hardline conservatives and right-wing forces adopted this as a firm response logic. The 2003 Japanese Supreme Court ruling also had an impact.

Reason for contradictory interpretation of individual claims by Japanese Ministry of Foreign Affairs: ‘Only diplomatic protection rights waived’ logic during atomic bomb cases involving Japanese nationals as victims

The contradictory interpretation of individual claims by the Japanese Ministry of Foreign Affairs compared to the judiciary stems from the 1945 Hiroshima and Nagasaki atomic bomb incidents, where Japanese nationals were victims rather than perpetrators.

In 1952, Japan renounced claims for compensation against the Allied Powers through the San Francisco Peace Treaty. Subsequently, atomic bomb victims filed lawsuits claiming they could not receive relief because the Japanese government had waived the claims. The Japanese government avoided responsibility by arguing that individual claims themselves had not been extinguished, so it was not obligated to compensate directly. At this time, the logic emerged that “what was waived in the San Francisco Peace Treaty was diplomatic protection rights, not the claims for compensation themselves” (Tokyo District Court, 1964). This ruling led to the enactment of the Atomic Bomb Special Measures Law in 1968, which evolved into the current Atomic Bomb Victims Relief Act.

The scene of the atomic bombing of Hiroshima, Japan, revealed by the U.S. military in 1945. (Source: AP Yonhap News)

Because Japan took the position that what was waived by treaty for its own nationals was ‘diplomatic protection rights,’ it became difficult to argue that individual claims were extinguished for Koreans under the Korea-Japan Agreement.

Nevertheless, Japan refuses to acknowledge compensation responsibility because recognizing individual claims would imply acknowledging the illegality of colonial treaties and trigger a flood of compensation demands from former colonies. The moment Japan recognizes individual claims for war crimes, countries like the Philippines, Vietnam, and Indonesia?where state-to-state compensation ended with the San Francisco Peace Treaty?could demand astronomical individual claims.

‘Importance of the argument that individual claims were not extinguished’ VS ‘Judiciary does not recognize individual claim litigation rights’

For this reason, some experts criticize the Yoon Suk-yeol administration’s ‘third-party payment’ compensation solution for being based on a position favorable to Japan’s claim that ‘individual claims were extinguished.’ They argue that the issue of non-extinguishment of individual claims, which even the Japanese Ministry of Foreign Affairs acknowledged, was not used as a bargaining chip on our side. This means that the forced labor compensation issue was hastily resolved by accepting Japan’s favorable claim that it was “completely and finally resolved under the 1965 Korea-Japan Claims Agreement.”

Professor Yuji Hosaka of Sejong University pointed out, “The Japanese Ministry of Foreign Affairs’ statement that ‘individual claims were not extinguished’ contradicts Japan’s own argument that everything was settled by the 1965 agreement,” adding, “However, the Korean government also accepted Japan’s easy logic that it was concluded by the 1965 agreement, resulting in a disadvantageous negotiation.”

However, Professor Wonduk Lee of Kookmin University said, “Although such statements were made by the Japanese Ministry of Foreign Affairs, it is also true that the Japanese Supreme Court ultimately decided that ‘even if individual claims were not extinguished, individuals do not have the right to file lawsuits,’” and added, “Regardless of right or wrong, Japanese courts never acknowledge the illegality of colonial rule or the claims.”

This content was produced with the assistance of AI translation services.