The ‘Comfort Women Agreement’ Without the Victims Is Invalid
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On the 27th, the Task Force under the Minister of Foreign Affairs, tasked with reviewing the agreement on the "comfort women" issue between Korea and Japan, released its report. The report stated that the 2015 agreement between Korea and Japan was an imbalanced agreement, excessively reflecting Japan's demands, and there was also a secret side agreement that unfairly burdened Korea.
President Moon Jae-in pointed out the flaws in the agreement, making it clear that “the comfort women issue cannot be resolved through this agreement.” In response, Japanese Prime Minister Shinzo Abe rejected this, stating, “The agreement will not change even by one millimeter.” Meanwhile, various civic groups are urging that “the comfort women agreement be immediately annulled.”
To conclude, the comfort women agreement between Korea and Japan, which was announced through a press conference by the foreign ministers of both countries on December 28, 2015, is legally invalid. It is not a formal treaty with recognized legal force. Although it is an official promise between the governments, with the endorsement of the two countries' leaders, it is, in legal terms, merely a political declaration between the two governments, with no binding legal effect. Therefore, strictly speaking, the comfort women agreement is not something that can be “annulled” under the law. Let’s look into the reasons in more detail.
Lack of Clarity on Whether the Agreement Was Documented and Ratified
First, it is unclear whether the 2015 comfort women agreement was documented and whether it received the signatures and ratifications of the heads of state of both countries.
Article 6, Section 1 of the Korean Constitution states that only treaties “concluded and promulgated in accordance with the Constitution” have the same legal effect as domestic law. A treaty, in this case, refers to a “documented agreement between states.” Therefore, an oral agreement or a press statement that has not been formally documented cannot be considered a “treaty.” When handling such an important issue as the comfort women problem, whether by the ambassadors or foreign ministers of the two countries, any agreement reached through diplomatic negotiation must be formally documented and ratified by the leaders of both countries in order to become a treaty. However, the governments of both countries have not clearly confirmed that this agreement was formally documented through proper procedures.
Even if Documented, It Should Have Been Ratified by the National Assembly
Secondly, even assuming that it was documented, the comfort women issue is a matter where the victims, the elderly comfort women, are entitled to legal compensation, and therefore, before ratifying it as a treaty, the full understanding and consent of the victims should have been sought, as well as the prior consent of the National Assembly.
Article 60, Section 1 of the Korean Constitution requires the National Assembly’s consent for eight important treaties, providing democratic oversight over the President’s treaty-making power.
One of these eight treaties is a “treaty on legislative matters.”
Article 37, Section 2 of the Constitution states that fundamental rights of the people can only be restricted by laws passed by the National Assembly. Therefore, treaties that limit the fundamental rights of the people are considered “treaties on legislative matters.” Since this agreement inevitably restricts the legal rights of the comfort women, who suffered irreversible harm from the Japanese military, it should have been ratified as a treaty with the prior consent of the National Assembly. This agreement could never have been the result of a secret agreement between government officials, let alone an unexpected press conference held by the foreign ministers of both countries, without even informing the National Assembly.
Content Issues with the Agreement
In addition to these procedural flaws, the content of the comfort women agreement was an unfair and problematic one.
The recently revealed side agreements are truly shocking. The agreement was made not on the “irreversibility of apologies,” as we originally claimed, but on the “irreversibility of resolution,” and it was agreed in secret that the Korean government would be involved in issues such as relocating the comfort women statue in front of the Japanese embassy and refraining from using the term “sexual slavery.” These humiliating terms cannot possibly be considered a fair agreement.
The Negotiations Must Continue for a Fair and Legal Agreement
The negotiations between Korea and Japan on the comfort women issue are just beginning. Through transparent negotiations between the governments of both countries, the content should be progressively improved, and in the future, it should be formalized through a treaty with the consent of the National Assembly, in accordance with the procedures defined by the constitutions or laws of both countries. Only such an agreement can have true legal effect.
“The victims are us, so why is the government making the agreement?” This was the lament of one of the victims, Kim Gun-ja, who passed away last summer. The responsibilities of those remaining are now clear.
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