No.68

December 15th, 1959.

Your Excellency;
I have received cabled information from the Government that the Government has already suggested to the Japanese Foreign Ministry the possibility of taking up the deportation case with ICJ. On the 12th UPI informed me that our Foreign Office had announced that we would take up the deportation case with ICJ. On the evening of the 11th I dispatched an urgent cable to the effect that we should keep our plan secret from the Japanese.
In my understanding, the purpose in exploring the possibility of taking up this matter with ICJ was to seek obtaining an interim measure from ICJ so that we would be able to frustrate the Japanese plan of sending our people to the Communist regime until judicial settlement had been reached-which usually takes about two years.
1) To obtain the interim measure the strategy I had in mind was as follows; though there is no guarantee that an interim measure would definitely be issued, unilateral application to ICJ should be made after declaring acceptance of jurisdiction and at the same time requesting an interim measure.
2) The Court will then have to notify the Japanese Government of the fact that we had filed an application and ask the Japanese Government whether it would agree to a judicial settlement vis a vis the Republic of Korea. It would surprise the Japanese Government because without making a special agreement with the Japanese the Republic of Korea would be taking up this matter with the Court and an invitation would be made through the Court. The Japanese Government would be in a very difficult position as to whether or not to refuse to appear at the Court. In the meantime, we would approach ICJ and request that the interim measure should be issued immediately in view of the urgency. If the Japanese refuse to appear in the Court it will show quite clearly that they are afraid of it, and Japan would be in a bad position. If she agrees to appear (accepting the judicial settlement), then the ICJ would immediately examine the interim measure and we would hope to have it issued, thus frustrating the
Japanese plan at least for the time being - until the judicial settlement. If the Japanese get to know of these things they will undoubtedly counter our move at ICJ and obtaining an interim measure will be quite difficult.
3) The above measure is usually taken when one Government feels that the other side is unfriendly and the situation is urgent. Otherwise, it usually seeks agreement from the other side to take up the case with the Court through special agreement.
4) If the case were taken up through special agreement with the Japanese Government it would diminish the impression that the case is urgent, and it would probably be quite difficult to obtain from the Court an interim measure. Furthermore, In reaching special agreement it is in most cases very difficult to make a satisfactory arrangement. Undoubtedly the Japanese Government, if they agree to the judicial settlement, will employ delaying tactics. In the meantime they will continue to deport our people.
5) Furthermore, it is generally known that reaching a special agreement is quite tricky.
6) The nature of the special agreement is to define the scope of the judgment and the Court will not give any judgment which goes beyond the scope agreed upon by the two parties.
7) In this connection, Professor Guggenheim is an authority on the theory of interim measure. According to the cabled information, the Government is apparently not thinking about unilateral application through which we seek an interim measure. The Government is contemplating taking up this matter through special agreement with the Japanese. In this case, the Japanese will probably lay down the conditions of this special agreement.
8) If the Government wishes to take up the case through special agreement, we have to be extremely cautious in the wording and contents of this special agreement. Usually Governments consult international lawyers on this while they are negotiating with the other side.
9) For those who have already been deported to the communist side by the Japanese. compensation should be reqested from the Japanese. This is a sort of reparation.
II. Under these circumstances, if the Government is interested in taking up this matter through special agreement with the Japanese, seeking compensation from the Japanese and so on, we can do it. But when we talk about a special agreement with the Japanese every legal caution should be taken. Secondly, the crux of the problem in this case, if it is taken up at ICJ, is still whether we are successful in obtaining evidence that they are forcing our people to go to the Communist regime. This is a matter of evidence, so it should also be studied seriously. The December 30, 1957, memorandum is good material for us, but we have to prove that the Japanese forced our people to go to north Korea despite the memorandum. Therefore the problem of evidence will again play a major role in the Court decision.
III. Regarding our other problems with the Japanese, such as the matter of reparations and also restitution and so on, if the Government is interested in taking these up with ICJ it is worthwhile studying the possibility. If diplomatic negotiations with the Japanese are difficult, by studying the possibility of taking up the matter with ICJ it will undoubtedly at least put pressure on the Japanese side.
With sentiments of loyalty and esteem,

I remain,

Faithfully yours,

His Excellency President Syngman Rhee,
Office of the President,
SEOUL,
Corée.