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Relitigating the Past: How to Overcome Recent Court Cases and Strengthen the Japan-South Korea Relationship 

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The Koreas | Diplomacy | East Asia

Relitigating the Past: How to Overcome Recent Court Cases and Strengthen the Japan-South Korea Relationship 

Two recent legal rulings in South Korea are once again threatening to unravel the relationship.

Relitigating the Past: How to Overcome Recent Court Cases and Strengthen the Japan-South Korea Relationship 
Credit: KOCIS (Korean Culture and Information Service) photo by Jeon Han

Fall down seven times, get up eight. This Japanese proverb about resilience also applies to Japan’s relationship with South Korea. After a 2018 ruling by the South Korean Supreme Court set off a diplomatic spiral within Japan-South Korea relations, 2022 saw a dramatic improvement in bilateral ties. Since then, numerous meetings between Japanese Prime Minister Kishida Fumio and South Korean President Yoon Suk-yeol have led to shared priorities, collaboration, and military cooperation. 

Amid this rapprochement, however, two recent legal rulings in South Korea are once again threatening to unravel the relationship. Late last year, the Seoul High Court ordered the Japanese government to compensate former “comfort women” – women and girls used for sexual slavery during World War II – thus revisiting a fraught historical issue that has proven fatal to bilateral relations in the past. Separately, but equal in diplomatic sensitivity, the Korean Supreme Court upheld a ruling that ordered two Japanese companies to pay damages to South Korean plaintiffs for wartime forced labor. 

While each issue has previously led to a deterioration in Japan-South Korean ties, there are indications that this time may be different. 

Much of the cautious optimism rests with Yoon. His predecessor, Moon Jae-in, was far more antagonistic toward Japan, abandoning a 2015 Japan-South Korea agreement intended to settle the comfort women issue “finally and irreversibly.” The Moon administration also supported South Korean plaintiffs seeking compensation from Japanese firms for World War II-era forced labor. It was a 2018 ruling on this matter, similar to the one handed down in December, that precipitated a trade dispute, frayed relations, and – at a low point – saw Moon threaten to end the Japan-South Korea military – information sharing agreement. 

The Yoon administration, which took office in May 2022, struck a different tone early on, prioritizing improved relations with Japan. In consultation with plaintiffs, it devised a compensation fund in an effort to resolve the entanglement created by the 2018 ruling. Japan was cautiously receptive, and the relationship has since vastly improved. The United States has publicly and privately encouraged compromise between two of its treaty allies, culminating in the much-lauded Camp David summit in August 2023. 

Amid a new chapter in Japan-South Korea relations, the recent rulings may jeopardize this progress. But two factors suggest that won’t happen. 

The first lies in the cases themselves. The forced labor cases are brought against private Japanese businesses, not – as in the recent comfort women case – against Japan itself. At first glance, this distinction is important. While a court may be willing to order the seizure of private assets to satisfy a judgment, such enforcement against sovereign assets presents more complicated legal questions. First among them is whether the ruling violates the doctrine of sovereign immunity. Excluding a small minority of exceptions, national and indeed international courts have been reluctant to overrule state immunity. 

In theory, the difference in respondents provides Yoon with a degree of flexibility with the comfort women ruling. Faced with either the diplomatic crisis of enforcing a judgment against a sovereign state or doing nothing, Yoon would likely choose the latter. The legal distinctions between these cases, however, are unlikely to sway South Korean public opinion on matters of historical grievance. Yoon and the ruling party may conclude that remaining silent on such a visceral issue, especially so close to the April 2024 legislative election, would be politically untenable. The comfort women and forced labor cases therefore offer, in a practical sense, a distinction without a difference. 

Yoon himself, however, represents the second – and strongest – reason for optimism. Nothing in his policies or statements suggests he is willing to allow the courts to jeopardize South Korea’s relationship with Japan. To this end, immediately following the ruling in December, the South Korean Foreign Ministry publicly indicated that the foundation created to fund the 2018 judgment would be used to compensate the new forced labor plaintiffs. 

Regarding the comfort women ruling, South Korean Foreign Minister Park Jin indicated that the Yoon administration respects the 2015 comfort women agreement. Where previous South Korean administrations have been quick to criticize Japan and win easy domestic points, Yoon has shown marked restraint. 

His previous efforts have also created a path forward for the present rulings: funding the settlements extrajudicially. In initially setting up this mechanism in March 2023 for forced labor plaintiffs, Yoon demonstrated that he understands the importance of plaintiff and public buy-in. Where the 2015 solution to comfort women compensation was perceived as an imposed, top-down plan, Yoon consulted with forced labor plaintiffs and has been largely successful in winning their participation. Applying these lessons to the recent comfort women ruling, Yoon should revisit the 2015 agreement in an attempt to revitalize that framework. 

For its part, Japan must be a willing partner. While previous attempts at reconciliation have failed, resulting in a Japanese sense of skepticism and fatigue toward South Korea and issues of historical grievances, Japan should recognize the opportunity presented by the Yoon administration for a durable alliance. 

After each recent judgment, Japan released what have become customary statements calling on the South Korean administration to curtail litigation and uphold the 1965 Treaty on Basic Relations Between Japan and South Korea and the 2015 comfort women agreement. But Japan must be cautious. Suggesting that the South Korean administration overrule the judiciary could be interpreted as both interference in Korean domestic affairs and dismissive of the separation of powers in a democratic peer. 

Kishida, however, has shown a nuanced understanding of the scrutiny with which South Koreans view Japan on matters of history, as well as the perils of a diplomatic misstep. By visiting the Seoul National Cemetery, avoiding the Yasukuni Shrine, and expressing remorse for Japan’s colonial and wartime acts, Kishida has demonstrated that he is a willing partner in the project of bilateral improvement. 

Yet whether Kishida can also revisit the 2015 comfort women agreement remains uncertain. Record-low approval numbers for his Cabinet and the expanding corruption scandal plaguing his Liberal Democratic Party have left Kishida with limited political latitude for leading a new initiative to address the issue of historical grievance. Furthermore, the new year was marked with twin disasters: a crippling earthquake and an aviation accident. Questions are being raised about the level of government response. Winning support for a revitalized 2015 agreement, or something similar, would be a difficult task for Kishida in the current domestic climate. 

But in the context of newfound cooperation with South Korea, a framework that was agreed upon and viable as recently as 2015 may be possible in the near future. With such a gesture, Japan would take a significant step in memorializing the progress made in the bilateral relationship. For its part, South Korea would have a tangible remedy for a rapidly aging group of plaintiffs and, important for public approval, a remedy with official contribution from Japan. Furthermore, as the recurrent nature of the recent litigation demonstrates, these court cases are not isolated. A framework would provide both countries with a preemptive solution for future cases. 

Nothing can erase the history between South Korea and Japan, but Kishida and Yoon together represent the best opportunity to significantly reduce the likelihood that this history threatens the priorities that both countries share in the present. 

The recent reconciliation between Japan and South Korea was confronted with its first serious challenge in a series of recent court cases. Whether current or similarly situated future litigation causes the bilateral relationship to stumble has yet to be seen. How the leadership of Japan and South Korea responds to this challenge will go far in dictating whether the relationship continues to rise or once again falls down.