STRICTLY CONFIDENTIAL
JAPAN-KOREA CONFERENCE

Summary Record of the Seventh Session of the Claims Committee
1. Date, time and place:
March 28th (Friday), 1952 14:25 hours-16:30 hours
At Room No. 419, Ministry of Foreign Affairs.
2. Conferees:
Mr. OHNO and five other Japanese Delegates and Mr. LIMB and seven other Korean Delegates were present.
3. Proceedings:
(1) The Japanese side presented, for reference, to the Korean side its opinion in writing, as per ANNEX I, concerning the “DIFFERENT VIEW OF KOREAN SIDE ON JAPANESE PROPOSAL REGARDING PROBLEM OF PROPERTY AND CLAIMS.”
(2) In accordance with the decision made at the Fourth Plenary Session, deliberations were made on the Korean side’s proposal for an amendment of the Report of the Claims Committee to the Fourth Plenary Session and it was decided that the last part of the said report would be amended to the expressions as shown in ANNEX II.
(3) The Korean side resumed questioning about the Japanese proposal and asked the meanings of “right” and “other rights” stated in paragraph 1 of the said proposal, expressing its opinions on the interpretation of USMG Ordinance No. 33 and the nature of Korea-U.S. Financial Agreement.
a. Asked the meanings of the “right” and “other rights”, in paragraph 1 of the Japanese proposal, the Japanese side replied that the “right” meant the ordinary rights to property, both physical and non-physical, including claims and real rights, while “other rights” were the expression used lest the above-mentioned “right” should be interpreted not to cover all property rights.
b. Asked if the Japanese side would consider all Japanese property as having been duly acquired, it replied that the said property had been acquired duly in the legal meaning.
c. The Korean side asked the Japanese side what would it assert as the relation between the “duly acquired” property and the situation of the “enslavement” recognized in the Cairo Declaration. The Japanese side declined to enter into political arguments and asked in return what a legal relation would the Korean side consider to have been meant by the said relation. To this the Korean side answered that it had considered the Japanese property in Korea as having been acquired unduly through discriminatory treatments of Koreans and that Ordinance No. 33 was originally issued so as to correct the situation of the “enslavement.”
d. Asked what a concrete right would the Japanese side mean in paragraph 1 of its proposal, as the rights to be recognized or restored, it replied that in case the property in question had been sold by the U.S. Military Government in Korea, it would request the proceeds therefrom, and in case the property had not been sold, it would require the Korean Government’s acknowledgement of the original ownership of the said property.
e. Asked what would the Japanese side consider to have been transferred from the U.S. Military Government in Korea to the Korean Government under the Korea-U.S. Financial Agreement, it replied that the proceeds from the property sold and the authority to administer the property not sold were considered to have been transferred.
f. The Korean side asserted that in Ordinance No. 33 there was no word to express what the Japanese side contended as to the Japanese property in Korea. To this the Japanese side replied that in Article V of the Korea-U.S. Financial Agreement there were clear provisions to the same effect with the Japanese side’s assertion, and pointed out the words, administer, etc., in the said Article.
g. The Korean side insisted that Articles 14 and 16 of the Treaty of Peace with Japan neglect the principle of respecting the private property right, and asked the Japanese side about the difference of Japan’s acceptance of these Articles from her recognition of Ordinance No. 33, under provisions of Article 4 of the said Treaty. To this the Japanese side replied that Japan consented to Articles 14 and 16 for the sake of reparations to the Allied Powers, but this consent had nothing to do with Japan’s recognition of the validity of dispositions (of Japanese property in Korea) made by the U.S. occupation forces in Korea, which Japan believed to have been made within the scope of international law. The Japanese side, then, quoted a part of General MacArthur’s directive given to his command under the date of December 20, 1945: “The occupation forces will observe the obligations imposed upon them by international law and the rules of land warfare.” To this quotation, the Korean side commented that the U.S. Military Government did not come under the command of General MacArthur as SCAP.
(4) The Korean side stated that, through these questions and answers, the Japanese side’s points of view on the problem of property and claims were ascertained to have been still widely different from Korean’s, and that, such being the case, the Korean side desired to bring the matter again to the Plenary Session. To this, Japanese side asked whether Korean side intended to give up its right to continue the questions, and, upon the reply that Korean side’s question was almost over, further stated that if there was no more questions on Korean side, it had no objection to the submittance of a joint report to the Plenary Session. The Japanese side, however, added that the joint report to be submitted would be in such form as per ANNEX III, copy of which was presented at the table. The Korean side reserved its answer to the said draft report and the decision was not made on this matter, neither was the date of the next session decided, leaving matters to later communications.

END

 

ANNEX I

On “Different View of Koran Side on Japanese Proposal Regarding Problem of Property and Claims”
Our legal position against the Korean side’s view concerning the problem of claims between Japan and the Republic of Korea is outlined as follows:
1. The Korean side seems to contend that it is difficult to find in ordinary Enemy Property Acts an example of the expression “vested in … and owned by” as used in Ordinance No. 33. It is, however, a legal common sense in the United States of America, the home country of the occupation forces who have issued the said ordinance, that the word “vest”, in its original sense, means a transfer of the so-called ownership in Anglo-American law and “ownership” does not imply the right of final disposition. Part V of Trade with Enemy Act of the United States dated October 6, 1917 reads: “… and any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, …” Ordinance No. 33 merely divided the contents into two parts, providing for “title to property” to be vested and “property” to be owned.
The word “owned” in Ordinance No. 33 implies that the USMG will have the rights, as far as authorized to them, by which the property will be held, used, administered, liquidated, sold or otherwise dealt with, as stated in Trade with Enemy Act of the United States of America, for the benefit of the occupation forces themselves. And out of the rights as stated above only the authority to “administer (the property) for the benefit of Korean people” has been transferred to the Korean Government, under the so-called Korea-U.S. Financial Agreement.
If the complete and final ownership had been transferred to the USMG by Ordinance No. 33 and thereafter to the Republic of Korea, it would have been senseless to deliberately prescribe as “administer for the benefit of Korean people” in the Korea-U.S. Agreement.
Legal interpretation of provisions of Ordinance No. 33 should be made in the light of international law regulating the status of wartime occupation, the intention of the Military Government having issued the said ordinance, the intention of the occupation forces to respect international law, etc. As regards the last point, it should be noted that General MacArthur’s instruction to his command concerning the basic purposes of the Allied Occupation of Japan, issued on December 20, 1945 mentions: “The occupation forces will observe the obligations imposed upon them by international law and the rules of land warfare ….”
2. Secondly, the inferential interpretation of the Korean side in relation to Articles 14 and 16 of the Treaty of Peace (paragraph 4 and 5 of the Different View) oversteps the generally accepted scope of legal interpretation of treaties.
Provisions of Article 14, (a), 2 and Article 16 are those of reparations. They are the provisions to authorize the victorious to dispose freely Japan’s overseas assets for the purpose of reparations to these countries. To interpret, as the Korean assertion does, that Article 4, (b) also means confiscation, in view of Articles 14 and 16, may be somewhat understandable as a political assertion to the effect that “all the Japanese property in Korea is requested to be transferred to the Republic of Korea in consideration of Articles 14 and 16”, but it is hardly understandable as a legal interpretation of treaties. It is true, as the Korean side insists, that there have been cases the principle of respecting private property was neglected and not completely observed under treaties after World Wars I and II. What we mean is that it is not a legal argument to insist that this principle, even if not entirely carried through in respect of reparations to the allied Powers under the provisions of Articles 14 and 16 of the Treaty of Peace, is to be denied as regards dispositions of property in the relation with the Republic of Korea.
In paragraph 5 of the Different View it is mentioned that the principle to confiscate overseas assets of the defeated has been established through World Wars I and II.
By the words “principles of international law”, however, are meant those which, having gone through an ordeal of antagonistic interests between states over a long period, have proved the norms ruling the states as customary law of long years standing. As a matter of fact, most of peace treaties after World Wars I and II prescribe the renunciation by the defeated of private property located in the victorious countries and simultaneously the duty of the defeated to compensate their owners for the loss. This fact, with the provisions for the duty of the governments of the defeated to compensate, shows how great importance these treaties have attached to the principle of respecting private property. At least there has been no treaty providing for renunciation of the defeated of private property in the detached country which is not the victorious. To go so far as to insist that the renunciation of such private property is an established principle is not, we cannot help concluding, a legal opinion, but merely a one-sided political opinion.
The provisions of Article 4, (b) of the Treaty of Peace are so clear that there is not a slightest shadow of doubt about them from the legal point of view. Namely, Japan recognizes the validity of dispositions made by or pursuant to directives of the Military Government in Korea, and the validity mentioned above is that of dispositions of the occupation forces as such. If any other effects is to be provided for by the Treaty of Peace, such provisions as Article 16, (a), 2 will be necessitated.
3. The above is our opinion as against what are stated in paragraphs 4 and 5 of the Different View and we do not deem it necessary at all to amend our legal opinion stated before.
Furthermore, we do not refer to the points mentioned in paragraphs 8 and 9 of the Different View, which are not legal questions. Here we should like only to state that the legal interpretation of Ordinance No. 33 and Article 5 of the Treaty of Peace should not be dependent upon political considerations, but that their interpretation should be decided from purely legal point of view, and then, if necessary, political considerations should be given according to the results produced from the legal interpretation.

(END)

 

ANNEX II

“… the Korean side replied that it deemed unnecessary to make further questions about items of the Japanese proposal, as the Japanese side stood on the position to assert claims to the property in Korea of Japan or of her nationals, which was fundamentally contradicting with the Korean position. At present ….

 

ANNEX III

Draft Joint Report of Claims committee to Plenary Session, Japan-Korea Conference
The disposition of property and claims is based on the provisions of Article 4 of the Treaty of Peace signed at the City of San Francisco on September 8, 1951. A decision was made, at the Plenary Session of the present Japan-Korea Conference, on the establishment of the Claims Committee, as a sub-committee for the deliberation of the subject matter, which has held several meetings for the deliberation. And, as the result of earnest and sincere discussions by Delegates of both sides, major points of arguments of both sides have been clarified. It has been revealed, however, that, in view of the complicated nature of the problem, its final settlement may not be attained during the present session of the Japan-Korea Conference.
Therefore, the said Committee concurred in opinion to submit the following recommendation to the Plenary Session of the Japan-Korea Conference.

 

RECOMMENDATION

With regard to the disposition of property and claims, Japan and the Republic of Korea shall establish a joint standing committee, in order to renew deliberations of the subject matter, in a spirit of concord and in accordance with the principles of justice and equity, as soon as possible after the first coming into force of the Treaty of Peace signed at the City of San Francisco on September 8, 1951.