As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre. Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the postwar San Francisco Peace Treaty of 1951 (SFPT). Yet, the warning shots fired above those tiny rocks is not the only instance of regional tensions heating up in Northeast Asia. On 2 August, Japan decided to remove South Korea from its list of trusted trade partners, following its restrictions on the exportation of three important chemicals to South Korea imposed last month. Days later, Japan pulled back and permitted export of a key chemical for semiconductor manufacturing in Korea. The two Asian economic titans have since brought their trade war to the attention of the WTO’s General Council.
Yet the WTO is not the only international legal regime engaged in the escalating trade conflict between Japan and South Korea. In this contribution, I aim to show that the now seldom-trodden postwar peace treaties concluding WWII are still pertinent to current international relations as evidenced by the diplomatic row between Seoul and Tokyo. Self-help remains relevant to the effective operation of the international legal order, especially with respect to the enforcement of international legal rules lying outside the purview of any (quasi)judicial fora such as flaws from postwar peace treaties.
The End of a World War
While Japan ended its colonial rule of the Korean Peninsula following its surrender to the Allies at the end of WWII, the Peninsula was soon split into two entities. Because of the Allies’ disagreement as to whether Korea was a belligerent party, neither Pyongyang nor Seoul signed the SFPT. Despite its exclusion of both Koreas, the SFPT includes a China/ Korea entitlement clause (article 21). Among other things, article 4—the framework provision on, inter alia, the disposition of property of Japan and of its nationals in the territories renounced by Japan (including the Korean Peninsula) and the relevant claims—is applicable to Korea by way of this special clause. Yet the apparent omission of the reparation clause (article 14) sowed seeds of the lingering dispute over responsibility and reparations between Japan and South Korea. Read the rest of this entry…