Who Moved the Goalposts? : Colonial Responsibilities and International Law in East Asia

The decisions rendered by the Supreme Court of South Korea that ordered the defendant Japanese companies to pay compensation to former forced laborers gravely jolted the very foundation upon which all the legal understandings are perceived, among the ruling elite of Japan, to be constructed in regard to the relations with South Korea. The Japanese Government is adamant in rejecting the rulings, and leading experts in Japan are highly critical of the recent attitude of the Korea’s highest judicial organ on issues linked to the era of Japan’s colonial rule of the Korean Peninsula. From my perspective, however, these decisions are an indication that the Euro-centric evolutionary history of international law in which colonial rule is considered a thing of the past and the past wrongs are prone to oblivion is radically challenged as the active remembering contributes to the construction of narratives that present the past as a series of injustices. The current inclination in the Korean judiciary promoted by memory of injustices is clearly toward remembering and righting past wrongs in the present. In this essay, I will develop this perspective after portraying the domestic development in Japan regarding the interpretation of the Claims Agreement to show that Japan’s ‘goalposts’ have been moved from the original one to waive the State’s right of diplomatic protection to one to eviscerate the individual’s right to be satisfied, then onto the most recent one to extinguish the individual’s procedural right to sue.