The Supreme Court Decision on the Liability of Japanese Company for Forced Labor during the Japanese Colonial Era and Its Implications

Abstract

The Korean Supreme Court issued an en banc decision (the Decision at Issue) on the liability of a Japanese company for forcing the plaintiff into labor during World War II and a majority opinion affirmed the liability of the Japanese company. The main issue of the Decision at Issue was whether the Agreement on the Settlement of Problems concerning Property and Claims and on Economic Co-operation between Japan and ROK (the Claims Agreement) addressed the right to damages for mental harm caused by forced labor. This article analyzes the Decision at Issue from the perspective of international customary rules. Article 31 and 32 of the Vienna Convention on the Law of Treaties (the Vienna Convention) which stipulated rules concerning interpretation of treaties, have been considered to reflect international customary rules. As the Vienna Convention provided, a treaty should be interpreted in accordance with the ordinary meaning of the terms of the treaty in the light of its purpose and in their context together with subsequent practices. The Claims Agreement was for solving civil matter of property and obligation between the two countries rather than for addressing the matter arising from wrongdoing during Japanese colonial occupation. This succinctly explains why terms like reparation or wrongdoing during the Japanese rule are absent from the Claims Agreement unlike other treaties between Japan and other injured nations that were provided reparations.