On the 28th of December in 2015, South Korea and Japan agreed on the ‘ultimate’ solution to the issue of comfort women, who were forced into sexual slavery during World War II. This agreement has many substantive and procedural problems. These aspects are now being used to invalidate the treaty between the two countries. President Moon Jae-In of South Korea expressed the government’s new and clear position on the comfort women treaty. Although the Prime Minister of Japan, Shinzo Abe, has urged South Korea to stick to the deal, the treaty is doubtlessly invalid.
In order to explore grounds for invalidity of the comfort women agreement, two important pieces of background information should be remembered. Firstly, President Jae-In was elected after the previous president, Park Geun-hye was impeached because she was not willing to protect the constitution. Secondly, the issue of Comfort Women is a sexual war crime. The term, ‘Comfort women’, was used to describe Japanese soldiers’ rape of Korean women, of which thirty-one victims are still alive. Although the Comfort Women deal only covered the rape against Koreans, these sexual war crimes were committed against people from the Far East, including the Chinese, and people from the Far West, such as the Dutch.
This essay will explore the grounds for nullity of the deal, mainly based on the lack of competence of South Korea’s previous government and jus cogens of war crimes. Both countries are parties to the 1969 Vienna Convention on the Law of Treaties, which governs treaties at a universal level. The nullity of a treaty between two countries should be discussed mainly based on the convention.
2. Grounds for Nullity of Vienna Convention
- A) Lack of competence: depriving individuals of their constitutional rights
According to Article 46(1) of the Vienna Convention, lack of competence is one of the grounds to invalidate a treaty. This ground can only be admitted when the lack of competence was manifest and concerned a rule of its internal law to conclude treaties of fundamental importance.[i] The ‘manifest’ violation refers to a violation of the constitutional law.[ii] For example, lack of constitutional authority has been discussed[iii] in the case of abrogation of treaties agreed between the U.S and the Republic of Panama.[iv] In this case, procedural violation was argued based on the absence of parliament’s approval.
Unlike the above treaties of the republic of Panama, the comfort women agreement was entered into force by lack of competence based on substantial constitutional violation. In other words, since the president of South Korea can alone enter into international agreements,[v] the consent given to Japan seems to be valid. However, it should be remembered that the agreement was meant to resolve the dispute over sexual war crimes ultimately. This agreement left the individuals completely deprived of their right to compensation. The agreement has a dual contract, which implies that the government of South Korea will attempt to persuade the victims not to speak up about the sexual crimes. In addition, the government of South Korea aims to remove the memorial statues of comfort women, which has been appeared globally for memorial of the seriousness of the brutal sexual war crimes.[vi]
Article 10 of South Korea’s constitution declares individuals’ right to human dignity and happiness. Based on this article, victims’ right to compensation cannot be deprived by the government. Article 21 of the constitution also guarantees the freedom of assembly and expression, which allows the victims to form a group to speak the truth. These constitutional rights are natural human rights protected by the constitutional law. The president of South Korea has no constitutional authority to deprive individuals of constitutional rights by entering into international agreements. The victims never agreed to give up their rights to compensation. Thus, the head of the National Intelligence Service of South Korea who oversaw the agreement under the supervision of the previous president, Park Geun-hye, did not demonstrate competence by depriving victims of their right to compensate, express and assemble themselves.
- B) Jus Cogens: concealing the truth of sexual war crimes
According to Article 53 of the Vienna Convention, ‘a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. The peremptory norm of general international law, so called jus cogens is a norm accepted and recognized by the international community.[vii] However, since the jus cogens of the Vienna Convention is uncertain, [viii] at first glance, whether or not the comfort women agreement, violates jus cogens is uncertain.
However, there already exists a general international legal order on humanitarian law. The International Court of Justice(ICJ) previously stated that ‘a great many rules of humanitarian law’ acquired the legal quality of being intransgressible.[ix] The sexual war crimes are prohibited as customary international humanitarian law.[x] The comfort women agreement as aforementioned aims to conceal the truth of the sexual war crimes by preventing the use of the words, ‘sexual slave’, and blocking victims’ freedom. In addition, in the case of Congo v. Rwanda, the ICJ explicitly mentioned jus cogens to relate to a dispute of the prohibition of genocide.[xi] A sexual war crime is considered a crime against humanity by international criminal courts and tribunals in addition to genocide. The international crimes have no hierarchy amongst them, prohibition of the sexual war crimes is also jus cogens equally as genocide. In this line, concealing the truth of victims’ experience of sexual war crimes is enough to constitute a violation of jus cogens. In May 2013, the UN human rights panel urged the Japanese government to ‘refute attempts to deny the facts by the government authorities and public figures and to re-traumatise the victims through such denials’.[xii] This UN penal view also supports the global perspective of jus cogens norms, including protection of victims of sexual war crimes.
The procedure to ensure the invalidity of the comfort women agreement is simple. The government of Japan agrees to President Jae-In’s position. If the government of Japan does not agree to nullify the treaty, the dispute can be settled peacefully through the measures outlined by Article 33 of the UN Charter. Since grounds for nullity include jus cogens, the government of South Korea can unilaterally seek to dispute the resolution before the ICJ. In this case, Japan still has the option to determine an alternative resolution, such as arbitration. However, arbitration requires the consent of both countries.[xiii]
In the EU, efforts toward reparation of the cruelty committed during World War II and other conflicts, such as the Serbian genocide, are ongoing. Overall, mankind has constantly moved forward toward a more just and peaceful world. The victims of sexual slavery, termed comfort women, are still alive. Japan still has a chance to recover from the cruelty by apologising and compensating victims decently. It also involves a significant procedure of reparation of other victims, from China to the Netherlands. Prime Minister Abe’s government seems not to agree more on nullifying the agreement and finding a genuine solution to past war crimes. The government of South Korea should also realise that its representatives do not have the competence to deprive individuals of constitutional rights and conceal the truth of sexual war crimes; this violates jus cogens. For a more mature relationship between the countries and achievement of international justice, both countries should agree on the nullity of the treaty. An agreement on its invalidity is an important step toward international justice.
[i] Joe Verhoeven, Part IV Invalidity and Termination of Treaties, Invalidity of Treaties: Anything new in/under the Vienna Conventions?, The Law of Treaties Beyond the Vienna Convention, Oxford University Press (2011).
[ii] Alex M. Niebruegge, ‘Provisional Application of the Energy Charter Treaty: The Yukos Arbitration and the Future Place of Provisional Application in International Law’, Chicago Journal of International Law Vol 8(1), (2007); Eberhard P. Deutsch, ‘Vienna Convention on the Law of Treaties’, Notre Dam Law Review Vol 47(2), (1971).
[iii] Stefan A. Riesenfeld, International Agreements, Yale Journal of International Law Vol 14(7), (1989).
[iv] The US Congressional Bills 103th Congress, H. Con. Res. 2 ‘Expressing the sense of the Congress that the President or the Congress should abrogate the Panama Canal Treaties of 1977 and the Neutrality Treaty and the Congress should repeal the Panama Canal Act of 1979’, January 5 1993.
[v] Constitution Law of South Korea Article 60: The National Assembly shall have the right to consent to the conclusion and ratification of treaties pertaining to mutual assistance or mutual security; treaties concerning important international organizations; treaties of friendship, trade and navigation; treaties pertaining to any restriction in sovereignty; peace treaties; treaties which will burden the State or people with an important financial obligation; or treaties related to legislative matters; Constitution Law of South Korea Article 74: The President shall conclude and ratify treaties; accredit, receive or dispatch diplomatic envoys; and declare war and conclude peace.
[vi] ABC, South Korea says ‘comfort women’ deal with Japan has ‘serious flaws’ 28 Dec 2017 available: http://www.abc.net.au/news/2017-12-28/south-korea-calls-sex-slave-deal-with-japan-seriously-flawed/9290540; for local language article, 한겨레, 이병기 ‘위안부 이면합의’ 주도…“박근혜, 2015년내 타결 강한 의욕” 27 Dec 2017 available:
[vii] Laura M. Trocan, Nullity of International Treaties in the Light of the Stipulations of the 1969 Vienna Convention on the Law of the Treaties, Advances in Fiscal, Political and Law Science available: http://www.wseas.us/e-library/conferences/2013/Brasov/EPLS/EPLS-19.pdf.
[viii] Joe Verhoeven, Part IV Invalidity and Termination of Treaties, Invalidity of Treaties: Anything new in/under the Vienna Conventions?, The Law of Treaties Beyond the Vienna Convention, Oxford University Press (2011).
[ix] International Court of Justice, the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996
[x] ICRC Customary Interantional Humanitarain Law database available: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule93
[xi] Gleider I Hernández, The international Court of Justice and the Concept of ‘International Community’, The British Yearbook of International Law, Oxford University Press, (2013).
[xii] South China Morning Post, UN panel calls on Japan and South Korea to revise ‘comfort women’ deal, South China Morning Post available: http://www.scmp.com/news/asia/east-asia/article/2094212/un-panel-calls-japan-and-south-korea-revise-comfort-women-deal.
[xiii] See generally, Joe Verhoeven, Part IV Invalidity and Termination of Treaties, 18 Invalidity of Treaties: Anything new in/under the Vienna Conventions?, The Law of Treaties Beyond the Vienna Convention, Oxford University Press (2011)