This is the fifth and final installment of a series.
Lee Yong-soo, 90, a South Korean former so-called comfort woman, entered the courtroom in a wheelchair. When her lawyer urged her to speak, she suddenly fell to the floor and shouted: "Why hasn't the Japanese government appeared in court? Please help us, Your Honor."
The scene was observed on Nov. 13 at the Seoul Central District Court during the first oral proceedings in a lawsuit filed by former comfort women and others seeking compensation from the Japanese government.
Representatives of the Japanese government, the defendant, were absent in court. Tokyo believes that the case should be dismissed based on the principle of "sovereign immunity" under international law, where a sovereign state cannot be made subject to the jurisdiction of other countries. As the presiding judge informed the plaintiffs of the existence of the principle of sovereign immunity on the day of the proceedings, many people in South Korea also view that it will be difficult for the plaintiffs to win the case.
Essentially, the issue of compensation was confirmed as being "settled completely and finally" under the 1965 Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation between Japan and the Republic of Korea.
Despite that, there are reasons why the plaintiffs have pinned their hopes on the trial. In fact, court rulings have rehashed issues thought resolved by the 1965 agreement.
After the 1987 democratization movement, South Korea's courts have steered toward "judicial activism," where decisions are actively pursued in light of the unconstitutionality of laws and government measures, led by regrets over the country's military dictatorship. The Constitutional Court was established and it issued a series of rulings on laws and regulations set by the military regime as unconstitutional.
'Humanitarian rulings'
When the left-wing administration of President Roh Moo-hyun, in power from 2003 to 2008, brought historical issues into the diplomatic arena, anti-Japanese sentiment flared up. Judicial activism also came to impact Japan-South Korea relations.
In August 2011, the Constitutional Court handed down a ruling on the issue of comfort women, stating that it was unconstitutional for the South Korean government not to make efforts to resolve the issue through discussions with Japan.
In May 2012, the South Korean Supreme Court recognized the right of South Korean former requisitioned workers to claims in a lawsuit against a Japanese company. This suit was filed by such people who claimed to have been "mobilized" and "forced to work" during wartime.
After the case was sent back to a lower court, the Supreme Court eventually ruled in favor of the plaintiffs in October last year, finalizing the order for the Japanese company to compensate them.
The court asserted that it was difficult to regard the wartime labor issue as being settled by the 1965 agreement because Japan did not recognize the illegality of its colonial rule during the process of concluding the agreement. The logic behind this is that the failure by the military regime under Park Chung-hee to make Japan recognize the illegality of its colonial rule was wrongful and must be rectified.
After the Supreme Court decision, other former requisitioned workers filed lawsuits seeking compensation from Japanese companies.
"The Supreme Court and the Constitutional Court are vying with each other over 'humanitarian rulings.'" said Soka University Prof. Yoon Yong-taek, an expert on administrative law who specializes in the South Korean judiciary. "They tend to hand down rulings that go beyond the logic of existing legal systems."
Even in South Korea, there has been criticism that it seems as if a "national sentiment law" sits above the Constitution. It reflects concerns over the situation in which catering to public opinion takes precedence over law. This sentiment has served as a breeding ground for South Korea to constantly bring up historical issues.
Hard-line stance
The South Korean government has strengthened its hard-line stance toward Japan as if supported by the rulings.
After the ruling on comfort women by the Constitutional Court in 2011, then President Lee Myung-bak forced through his landing on Takeshima island as a protest over the comfort women issue. His successor, Park Geun-hye, also demanded compensation and an apology from Japan for former comfort women.
Since last year's Supreme Court decisions over former requisitioned workers, the current administration of President Moon Jae-in has reiterated that it "respects the rulings."
The Japanese government has viewed the rulings as totally unacceptable, saying they violate the 1965 agreement, and has called on South Korea to take measures to prevent damage to Japanese companies. While Tokyo requested the start of an arbitration process based on the agreement, Seoul did not respond.
Observing the terms of a treaty agreed upon between countries is a basic premise for the stability of the international community. Although Prime Minister Shinzo Abe has urged South Korea to faithfully keep to promises that will affect the basis of the relationship, arguments between Tokyo and Seoul have gone nowhere.
To date, South Korea has trumpeted its one-sided assertions over issues such as that of comfort women, the naming of Sea of Japan and the use of the Rising Sun flag in attempts to make its positions widely known in the international community.
However, the 1965 agreement is a treaty that forms the basis for postwar relations between Japan and South Korea. In the event that South Korea's claims go unchallenged in the international community and its twisted interpretations about the agreement become accepted, the bilateral relationship will be shaken by its roots.
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