8개월에 걸친 제4차 한일회담 협상에 대한 고찰
January 14, 1959
REVIEW OF NEGOTIATIONS FOR EIGHT MONTHS AT THE 4TH KOREA-JAPAN TALKS
(April 15 - December 20, 1958 )
(April 15 - December 20, 1958 )
Contents
1. General Review
2, Summary of Proceedings of each Committee
I. General Review
The talks spent mere than eight months with little progress since April 15, 1958 when the first plenary meeting was held.
The committee meetings, generally speaking, failed to proceed even to the stage at which discussions on substantial matters of the questions could effectively be undertaken until the talks entered into recess on December 20.
Our side considered that it would be an effective way of conducting the talks to settle first rather simple questions such as on Korean art objects and vessels to be returned to Korea, leaving such rather complicated problems as on fishery and Peace Line and on general claims of Korea for later settlement. In so considering, our side figured that such questions as on Korean art objects or vessels might be settled without mush difficulty, that in the course of discussions on such questions we might be provided with opportunities to test the sincerity of the Japanese side and that if we succeeded in settling such rather simple problems first it would expedite the smooth proceedings of the overall talks.
The Japanese side, however, was not willing to follow the same line as ours employing delaying tactics. The Japanese side assiduously refrained from makings formal commitments at the committee meetings procrastinating the progress of the meetings with the obvious purpose of ensuring better bargaining point ▣▣ at the discussions of other questions, especially, the question of fishery and Peace Line, thus pressing us to agree to the opening of the Committee on Fisheries and Peace Line. This difference of attitude in conducting the overall talks was one of the fundamental difficulties in the way of negotiations. In employing delaying tactics, the Japanese side put forward various excuses:
(1) The basic policy of the Government was not decided. (In this connection, they frequently referred to domestic political unrest, especially, at the Sub-Committee on Korean art objects.)
(2) The provisions of its domestic law made it difficult for them to comply with our request. (This one was frequently referred to, especially, in connection with the questions of Korean art objects and legal status of Korean residents)
(3) The public opinion made it difficult for them to comply with our request. (This one was referred to, especially* at the Sub-Committee on Korean Art Objects.)
Besides the delaying tactics on the part of the Japanese side, one of the major factors which delayed the proceedings was the question of the Korean detainees who were allegedly desirous to go to north Korea, which emerged around the end of June. This question paralysed the proceedings of the overall talks almost for three months until the end of September when the Japanese side showed its conciliatory attitude on this question pledging to take into consideration our request.
II. Summary of Proceedings of each Committee
1. Committee on Korean Claims
(1) Sub-Committee on Other Claims regarding Korean Art Objects.
This Sub-Committee was set up largely at the insistence of our side in the light of the ORAL STATEMENT of December 31, 1957, in which the Japanese side sounded its cooperative attitude on this question.
On April 16, 1958, the Japanese Government actually turned over 106 items of Korean art objects which are generally of little
value and which according to the Japanese side, were donated in accordance with Japanese domestic law, and it also presented us a list of 489 items of Korean art objects without making any commitment as to whether and when it would be ready to turn over them to us.
The Sub-Committee has met twelve times with no tangible progress since June 4, 1958, when the first meeting of the Sub-Committee was held. The delaying tactics on the part of the Japanese side was most conspicuous at this Sub-Committee. The Japanese side has refused not only to turn over any additional iteme of Korean art objects or to make any commitment to do so but also to respond favorably to our repeated request to present us a satisfactory list of Korean art objects it had removed from Korea during its occupation period. Since our side could not wait indefinitely the presentation of the said list, our side submitted in November a gist of Korean art objects to be returned to Korea, but this did not help the situation at all, The Japanese side in receiving the said gist said that they received it only "for reference", and refused even to proceed to discussions on the gist. Thus the Sub-Committee failed even to reach the stage at which substantial discussions on the items of art objects to be returned could be undertaken. In refusing to proceed to substantial discussion, the Japanese side put forward the following excuses some of which mentions were already made to in the above:
(i) That a basic policy of the Government on this question was not decided.
(ii) That the provisions of its domestic law as well as the public opinion made it difficult for its Government to comply with our request.
(iii) That the settlement of the question dealt with at this Sub-Committee was connected with that of the other questions dealt with at the other Committees or Sub-Committees. Among the above enumerated excuses, the only one which is noteworthy is the third one. It obviously implies that the Japanese side will show its readiness to settle this question only after it succeeded in gaining something at other Committees, especially, at the Committee on Fisheries and Peace Line.
Our informal approach to the Japanese side recently revealed that the Japanese side would at most turn over Korean art objects which are in the possession of the Japanese Government. It is, however, still doubtful if the Japanese side is really willing to make a formal commitment to turn over, at least, such Korean art objects as possessed by the Government in the spirit of expediting smooth proceedings of the over-all talks before it gains any at other Committees.
(2) Sub-Committee on Vessels
This Sub-Committee has met twenty-four times since June 6, when the first meeting was held. It barely succeeded ▣...▣ in adopting the same four agenda items as adopted at the Ist Korea-Japan talks on October 14 with the understanding that the question of the so-called 141 Japanese fishing vessels captured by Korean authorities for their violation of our Peace Line which the Japanese sine first proposed to take up on June 11 meeting would not be taken up at the Sub-Committee unless otherwise decided by the high levels of both sides. Subsequent to the adoption of the four agenda items, the Sub-Committee entered into discussions on agenda item A, that is, "return of the vessels registered in Korea as of August 9, 1945".
Our request for the return of the vessels under agenda item A was made on the ground of SCAPIN No.2168 which was based on the United. States Military Government Ordinance Noe 33. Our request was also based on the fact that the ownership of the Japanese properties in Korea which had been transferred to the U.S. Military Government by virtue of the Ordinance No.33 was duly transferred to the Korean Government with the conclusion of the Initial Financial. and Property Settlement between Korea and the United States the disposition of which was confirmed and recognised by the Japanese Government in paragraph B of Article 4 of the San Francisco Peace Treaty. Despite such legal basis of our request, the Japanese side denied its legal obligation to return the vessels reasoning as follows:
(i) The so-called SCAPIN was invalidated with coming into force of the San Francisco Peace Treaty, so that the Japanese Government was no longer under obligation to implement the SCAPIN.
(ii) The SCAPIN regulated only the relationship between the Japanese Government and SCAP, so that the third party had no right to intervene in the implementation of the SCAPIN.
(iii) The Japanese Government recognized in the San Francisco Peace Treaty only actual disposition by the Allied Powers of its properties which had phisically been completed before coming into force of the Peace Treaty, so that the Japanese Government had no longer obligation to turn over what it had not done.
Under these circumstances, the Japanese side naturally refused to comply with our request to present a list of vessels under agenda item A. To put aside unproductive legal arguments for the purpose of expediting the proceedings of this Sub-Committee, our side presented a list of 31 vessels most of which we considered most grounded among approximately 360 vessels to be claimed by our side under agenda item A. The Japanese side in receiving the list said again that they received it only "for reference", and refused to proceed to substantial discussions on the list, continuing to deny its legal obligation to turn over any under agenda item A. Further, the Japanese side proposed to terminate the discussions of agenda item A and to proceed to discussions on agenda item B, referring to the precedent at the 1st Korea-Japan Talks. Thus the proceedings of this Sub-Committee has almost been stalemated in the course of discussions on agenda item A.
It is still hard to know exactly what the Japanese side has in mind on this issue, but it is presumed that the Japanese side is deliberately contemplating to find out a way in which they can propose to donate a small number of vessels to Korea with denial of its legal obligation to turn over the vessels as they did at the 1st Korea-Japan Talks.
(3) Sub-Committee on Other Claims regarding General Claims
This Sub-Committee began its functioning as late as on December 1 when the first meeting was held, and has met only thrice before the Conference entered into recess. Thus this Sub-Committee has not reached the stage for substantial discussion. Our side, however, has already pronounced our intention to claim the same eight points as done at the 1st Korea-Japan Talks in the light of the AGREED MINUTES of December 31, 1957. It is noted that the Japanese side questioned the propriety of our pronouncement reserving its right to present its formal view at later stake.
2. Committee on Legal Status of Korean Residents in Japan
This Committee has met fifteen times since May 19 when the first meeting was held. The Japanese side presented on June 2 the so-called three principles for treatment of Korean residents which were too vague in terms to know the real intention of the Japanese side. It was, however, unmistakable from the outset that the profound concern of the Japanese side was focused on, among others, the question of deportation of Korean residents.
The Japanese side submitted in July a proposal regarding deportation criteria. The proposed criteria didn't go beyond the provisions of its immigration law, thus making it presumable that the Japanese side was reluctant to go beyond the scope of its own domestic law in settling the over-all question of the Korean residents.
Since our side could not expect any satisfactory proposal from the Japanese side under these circumstances, our side proposed in October a draft agreement on the legal status and treatment of Korean residents in Japan to be concluded between the two countries. In view of the situation changed since the end of the 1st Korea-Japan Talks, our draft proposal in a few points considerably departed from the joint draft agreement prepared by both delegations at the 1st Korea-Japan Talks, especially, in that the so-called Korean residents in Japan were to include their descendants unlike the joint draft. It is noteworthy that our draft proposal has anyway been made the basis of discussion at the Committee without an express agreement. With resumption of the talks, the Committee is to enter into discussion on our draft agreement article by article. The Japanese side so far put forward its formal views on our draft agreement as follows:
(1) Since the question of nationality falls within the scope of internal affairs under international law, the Japanese side thinks it improper to affirm the nationality in an international agreement, though it has no objection to our view that the Korean residents are nationals of the Republic of Korea. (In this connection, it must be noted that at the 1st Korea-Japan Talks it was not our side but the Japanese side who asserted the necessity to affirm the nationality. The Japanese side so far failed to give any positive reason for change of its position. It is presumed that the Japanese side is cautious not to offend the north Korean puppet regime.)
(2) The Japanese side can not accord the special status and treatment, as envisaged in the proposed agreement, to the descendants of the Korean residents in question.
(3) The question of permanent residence and that of deportation of Korean residents can not be dealt with separately. The Japanese side is prepared to grant permanent residence to the Korean residents only if it can retain the right to deport them in accordance with the criteria to be agreed upon in advance. (The Japanese side submitted last July a proposal regarding deportation criteria to which reference was already made.) In granting the permanent residence, the Japanese side wants to simplify the procedures for granting it. (In this connection, the Japanese side so far failed to present an alternative. Our side is prepared to propose an alternative to the effect that the Korean residents shall automatically be granted permanent residence with coming into force of the proposed agreement.)
(4) The Japanese side takes the view that the Korean residents lost their Japanese nationality with coming into force of the San Francisco Peace Treaty and become aliens. Thus the Korean residents who had enjoyed mining right which is only property right which aliens can not enjoy under the Japanese law were directed to dospose of it within three years. The Japanese side cannot agree to the proposal that the Korean residents be given retroactively to the date of coming into force of the Peace Treaty the privilege to enjoy the property right which aliens cannot enjoy. As for occupation, all aliens can engage in any occupation except that of public officials. Therefore, the Korean side doesn't have to entertain any apprehensions on this question.
(5) The Japanese side intends to grant the immunity to Korean repatriatees only in a limited period, that is three years, in taking away their movables or remitting fund from Japan, and further wants to limit, especially, the amount of fund to be remitted.
3. Committee on Fisheries and Peace Line.
This Committee has met eight times since October 3 when the first meeting was held.
On October 10, the Japanese side proposed a gist of fishery agreement to be concluded between Korea and Japan which clearly implied its flat denial of our Peace Line. Our side rejected the proposal stating that it could not be the basis of discussion. Several weeks later (November 28), the Japanese side, withdrawing the said proposal, submitted another one of fishery agreement. In the latter Japanese proposal, the passage in the former which clearly implied its flat denial of our Peace Line was deleted and, instead, detailed provisions for the demarkation of prohibited zones and regulated zones for fishery in the waters closely adjacent to Korea were contained unlike the former. In short, the new Japanese proposal was to regulate fishing in the areas within the Peace Line, and took into consideration little the recent trend of international law and practice to respect the special interest and right of the coastal State over its adjacent waters.
Our side once again requested the Japanese side to submit another one closer to our position withdrawing the proposal. The Japanese side, however, requested us to submit a counter-proposal if the Japanese proposal could not be made the basis of discussion. Neither side so far agreed to comply with the other's request.
2, Summary of Proceedings of each Committee
I. General Review
The talks spent mere than eight months with little progress since April 15, 1958 when the first plenary meeting was held.
The committee meetings, generally speaking, failed to proceed even to the stage at which discussions on substantial matters of the questions could effectively be undertaken until the talks entered into recess on December 20.
Our side considered that it would be an effective way of conducting the talks to settle first rather simple questions such as on Korean art objects and vessels to be returned to Korea, leaving such rather complicated problems as on fishery and Peace Line and on general claims of Korea for later settlement. In so considering, our side figured that such questions as on Korean art objects or vessels might be settled without mush difficulty, that in the course of discussions on such questions we might be provided with opportunities to test the sincerity of the Japanese side and that if we succeeded in settling such rather simple problems first it would expedite the smooth proceedings of the overall talks.
The Japanese side, however, was not willing to follow the same line as ours employing delaying tactics. The Japanese side assiduously refrained from makings formal commitments at the committee meetings procrastinating the progress of the meetings with the obvious purpose of ensuring better bargaining point ▣▣ at the discussions of other questions, especially, the question of fishery and Peace Line, thus pressing us to agree to the opening of the Committee on Fisheries and Peace Line. This difference of attitude in conducting the overall talks was one of the fundamental difficulties in the way of negotiations. In employing delaying tactics, the Japanese side put forward various excuses:
(1) The basic policy of the Government was not decided. (In this connection, they frequently referred to domestic political unrest, especially, at the Sub-Committee on Korean art objects.)
(2) The provisions of its domestic law made it difficult for them to comply with our request. (This one was frequently referred to, especially, in connection with the questions of Korean art objects and legal status of Korean residents)
(3) The public opinion made it difficult for them to comply with our request. (This one was referred to, especially* at the Sub-Committee on Korean Art Objects.)
Besides the delaying tactics on the part of the Japanese side, one of the major factors which delayed the proceedings was the question of the Korean detainees who were allegedly desirous to go to north Korea, which emerged around the end of June. This question paralysed the proceedings of the overall talks almost for three months until the end of September when the Japanese side showed its conciliatory attitude on this question pledging to take into consideration our request.
II. Summary of Proceedings of each Committee
1. Committee on Korean Claims
(1) Sub-Committee on Other Claims regarding Korean Art Objects.
This Sub-Committee was set up largely at the insistence of our side in the light of the ORAL STATEMENT of December 31, 1957, in which the Japanese side sounded its cooperative attitude on this question.
On April 16, 1958, the Japanese Government actually turned over 106 items of Korean art objects which are generally of little
value and which according to the Japanese side, were donated in accordance with Japanese domestic law, and it also presented us a list of 489 items of Korean art objects without making any commitment as to whether and when it would be ready to turn over them to us.
The Sub-Committee has met twelve times with no tangible progress since June 4, 1958, when the first meeting of the Sub-Committee was held. The delaying tactics on the part of the Japanese side was most conspicuous at this Sub-Committee. The Japanese side has refused not only to turn over any additional iteme of Korean art objects or to make any commitment to do so but also to respond favorably to our repeated request to present us a satisfactory list of Korean art objects it had removed from Korea during its occupation period. Since our side could not wait indefinitely the presentation of the said list, our side submitted in November a gist of Korean art objects to be returned to Korea, but this did not help the situation at all, The Japanese side in receiving the said gist said that they received it only "for reference", and refused even to proceed to discussions on the gist. Thus the Sub-Committee failed even to reach the stage at which substantial discussions on the items of art objects to be returned could be undertaken. In refusing to proceed to substantial discussion, the Japanese side put forward the following excuses some of which mentions were already made to in the above:
(i) That a basic policy of the Government on this question was not decided.
(ii) That the provisions of its domestic law as well as the public opinion made it difficult for its Government to comply with our request.
(iii) That the settlement of the question dealt with at this Sub-Committee was connected with that of the other questions dealt with at the other Committees or Sub-Committees. Among the above enumerated excuses, the only one which is noteworthy is the third one. It obviously implies that the Japanese side will show its readiness to settle this question only after it succeeded in gaining something at other Committees, especially, at the Committee on Fisheries and Peace Line.
Our informal approach to the Japanese side recently revealed that the Japanese side would at most turn over Korean art objects which are in the possession of the Japanese Government. It is, however, still doubtful if the Japanese side is really willing to make a formal commitment to turn over, at least, such Korean art objects as possessed by the Government in the spirit of expediting smooth proceedings of the over-all talks before it gains any at other Committees.
(2) Sub-Committee on Vessels
This Sub-Committee has met twenty-four times since June 6, when the first meeting was held. It barely succeeded ▣...▣ in adopting the same four agenda items as adopted at the Ist Korea-Japan talks on October 14 with the understanding that the question of the so-called 141 Japanese fishing vessels captured by Korean authorities for their violation of our Peace Line which the Japanese sine first proposed to take up on June 11 meeting would not be taken up at the Sub-Committee unless otherwise decided by the high levels of both sides. Subsequent to the adoption of the four agenda items, the Sub-Committee entered into discussions on agenda item A, that is, "return of the vessels registered in Korea as of August 9, 1945".
Our request for the return of the vessels under agenda item A was made on the ground of SCAPIN No.2168 which was based on the United. States Military Government Ordinance Noe 33. Our request was also based on the fact that the ownership of the Japanese properties in Korea which had been transferred to the U.S. Military Government by virtue of the Ordinance No.33 was duly transferred to the Korean Government with the conclusion of the Initial Financial. and Property Settlement between Korea and the United States the disposition of which was confirmed and recognised by the Japanese Government in paragraph B of Article 4 of the San Francisco Peace Treaty. Despite such legal basis of our request, the Japanese side denied its legal obligation to return the vessels reasoning as follows:
(i) The so-called SCAPIN was invalidated with coming into force of the San Francisco Peace Treaty, so that the Japanese Government was no longer under obligation to implement the SCAPIN.
(ii) The SCAPIN regulated only the relationship between the Japanese Government and SCAP, so that the third party had no right to intervene in the implementation of the SCAPIN.
(iii) The Japanese Government recognized in the San Francisco Peace Treaty only actual disposition by the Allied Powers of its properties which had phisically been completed before coming into force of the Peace Treaty, so that the Japanese Government had no longer obligation to turn over what it had not done.
Under these circumstances, the Japanese side naturally refused to comply with our request to present a list of vessels under agenda item A. To put aside unproductive legal arguments for the purpose of expediting the proceedings of this Sub-Committee, our side presented a list of 31 vessels most of which we considered most grounded among approximately 360 vessels to be claimed by our side under agenda item A. The Japanese side in receiving the list said again that they received it only "for reference", and refused to proceed to substantial discussions on the list, continuing to deny its legal obligation to turn over any under agenda item A. Further, the Japanese side proposed to terminate the discussions of agenda item A and to proceed to discussions on agenda item B, referring to the precedent at the 1st Korea-Japan Talks. Thus the proceedings of this Sub-Committee has almost been stalemated in the course of discussions on agenda item A.
It is still hard to know exactly what the Japanese side has in mind on this issue, but it is presumed that the Japanese side is deliberately contemplating to find out a way in which they can propose to donate a small number of vessels to Korea with denial of its legal obligation to turn over the vessels as they did at the 1st Korea-Japan Talks.
(3) Sub-Committee on Other Claims regarding General Claims
This Sub-Committee began its functioning as late as on December 1 when the first meeting was held, and has met only thrice before the Conference entered into recess. Thus this Sub-Committee has not reached the stage for substantial discussion. Our side, however, has already pronounced our intention to claim the same eight points as done at the 1st Korea-Japan Talks in the light of the AGREED MINUTES of December 31, 1957. It is noted that the Japanese side questioned the propriety of our pronouncement reserving its right to present its formal view at later stake.
2. Committee on Legal Status of Korean Residents in Japan
This Committee has met fifteen times since May 19 when the first meeting was held. The Japanese side presented on June 2 the so-called three principles for treatment of Korean residents which were too vague in terms to know the real intention of the Japanese side. It was, however, unmistakable from the outset that the profound concern of the Japanese side was focused on, among others, the question of deportation of Korean residents.
The Japanese side submitted in July a proposal regarding deportation criteria. The proposed criteria didn't go beyond the provisions of its immigration law, thus making it presumable that the Japanese side was reluctant to go beyond the scope of its own domestic law in settling the over-all question of the Korean residents.
Since our side could not expect any satisfactory proposal from the Japanese side under these circumstances, our side proposed in October a draft agreement on the legal status and treatment of Korean residents in Japan to be concluded between the two countries. In view of the situation changed since the end of the 1st Korea-Japan Talks, our draft proposal in a few points considerably departed from the joint draft agreement prepared by both delegations at the 1st Korea-Japan Talks, especially, in that the so-called Korean residents in Japan were to include their descendants unlike the joint draft. It is noteworthy that our draft proposal has anyway been made the basis of discussion at the Committee without an express agreement. With resumption of the talks, the Committee is to enter into discussion on our draft agreement article by article. The Japanese side so far put forward its formal views on our draft agreement as follows:
(1) Since the question of nationality falls within the scope of internal affairs under international law, the Japanese side thinks it improper to affirm the nationality in an international agreement, though it has no objection to our view that the Korean residents are nationals of the Republic of Korea. (In this connection, it must be noted that at the 1st Korea-Japan Talks it was not our side but the Japanese side who asserted the necessity to affirm the nationality. The Japanese side so far failed to give any positive reason for change of its position. It is presumed that the Japanese side is cautious not to offend the north Korean puppet regime.)
(2) The Japanese side can not accord the special status and treatment, as envisaged in the proposed agreement, to the descendants of the Korean residents in question.
(3) The question of permanent residence and that of deportation of Korean residents can not be dealt with separately. The Japanese side is prepared to grant permanent residence to the Korean residents only if it can retain the right to deport them in accordance with the criteria to be agreed upon in advance. (The Japanese side submitted last July a proposal regarding deportation criteria to which reference was already made.) In granting the permanent residence, the Japanese side wants to simplify the procedures for granting it. (In this connection, the Japanese side so far failed to present an alternative. Our side is prepared to propose an alternative to the effect that the Korean residents shall automatically be granted permanent residence with coming into force of the proposed agreement.)
(4) The Japanese side takes the view that the Korean residents lost their Japanese nationality with coming into force of the San Francisco Peace Treaty and become aliens. Thus the Korean residents who had enjoyed mining right which is only property right which aliens can not enjoy under the Japanese law were directed to dospose of it within three years. The Japanese side cannot agree to the proposal that the Korean residents be given retroactively to the date of coming into force of the Peace Treaty the privilege to enjoy the property right which aliens cannot enjoy. As for occupation, all aliens can engage in any occupation except that of public officials. Therefore, the Korean side doesn't have to entertain any apprehensions on this question.
(5) The Japanese side intends to grant the immunity to Korean repatriatees only in a limited period, that is three years, in taking away their movables or remitting fund from Japan, and further wants to limit, especially, the amount of fund to be remitted.
3. Committee on Fisheries and Peace Line.
This Committee has met eight times since October 3 when the first meeting was held.
On October 10, the Japanese side proposed a gist of fishery agreement to be concluded between Korea and Japan which clearly implied its flat denial of our Peace Line. Our side rejected the proposal stating that it could not be the basis of discussion. Several weeks later (November 28), the Japanese side, withdrawing the said proposal, submitted another one of fishery agreement. In the latter Japanese proposal, the passage in the former which clearly implied its flat denial of our Peace Line was deleted and, instead, detailed provisions for the demarkation of prohibited zones and regulated zones for fishery in the waters closely adjacent to Korea were contained unlike the former. In short, the new Japanese proposal was to regulate fishing in the areas within the Peace Line, and took into consideration little the recent trend of international law and practice to respect the special interest and right of the coastal State over its adjacent waters.
Our side once again requested the Japanese side to submit another one closer to our position withdrawing the proposal. The Japanese side, however, requested us to submit a counter-proposal if the Japanese proposal could not be made the basis of discussion. Neither side so far agreed to comply with the other's request.
