Vol. 39 Production Editor
In January 2017, Japan recalled its ambassador to South Korea. This latest setback in the tense relationship between Japan and South Korea centers on a dispute over a statue located in front of the Japanese consulate in Busan. The statue depicts a ‘comfort woman,’ a reference to the thousands of women, many Korean, who were forced into sexual slavery by the Japanese Imperial government to be used by the Japanese military during World War II. This historical issue has created enormous tension between Japan and South Korea. In 2015, South Korea and Japan signed an agreement that was intended to put the issue to rest. When a civic group in Busan erected a ‘comfort women’ statue next to the Japanese consulate in Busan, the Japanese government claimed that South Korea had broken its agreement and violated the Vienna Convention on Diplomatic Relations.
Korea was under Japanese occupation until the end of World War II. Since 1981, two years after the reportedly pro-Japanese South Korean dictator Park Chung-hee was assassinated, 234 Korean women have accused the occupying government of Japan of forcing them into sex slaves for Japanese soldiers during World War II. The term comfort women has been given to the victims of this operation. International media has reported, based on estimates by academics, that up to 200,000 women were forced into sexual slavery by Japan. Survivors claimed to have been beaten and continuously raped by Japanese soldiers, with many bearing permanent injuries including infertility and physical scars.
In 1993, the Japanese government issued an apology. Chief Cabinet Secretary Yohei Kono stated that “the Japanese military was, directly or indirectly, involved in the establishment and management of the comfort stations, and the transfer of comfort women . . . that, in many cases they were recruited against their own will.” The statement continued that Japan “extend[s] its sincere apologies and remorse to all those who suffered immeasurable pain and incurable physical and psychological wounds as comfort women.” In 1995 Japan agreed to set up a private fund to compensate the surviving comfort women.
However, subsequent Japanese conduct has inflamed the issue. Many prominent Japanese have since denied that the comfort women were forced into sex slavery. In his first term as prime minister, in 2007, Shinzo Abe told Japanese reporters that “[t]here was no evidence to prove there was coercion as initially suggested.” In 2012, a group of Japanese public figures, including Abe who was about to start his current term as prime minister, posted an advertisement in the New York Times stating that the women were willing prostitutes, with many earning “incomes far in excess of what were paid to field officers and even generals.”  Furthermore, in 2013, Toru Hashimoto, the mayor of Osaka, one of Japan’s largest cities, opined that the comfort women system was “necessary at the time to maintain the army.” Moreover, in 2015, the Japanese Foreign Ministry asked the American textbook publisher McGraw-Hill to drop references to comfort women. Ikuhiko Hata, a Japanese academic whom the Foreign Ministry promoted to the foreign media as an “expert on the comfort women issue,” compared the comfort women’s ordeal to working in the red light district in Amsterdam. In a press interview Hata said: “Prostitutes have existed at every time in human history, so I do not believe that comfort women are a special category.” Much to South Koreans’ anger, Japanese textbooks remain silent on comfort women.
In 2015, amid pressure from the United States, South Korean President Park Geun-hye and Japanese Prime Minister Abe made an agreement that both countries referred to as a “final and irreversible resolution” to the comfort women issue. Under the agreement, Japan pledged to give $8.3 million to South Korea, along with an official apology by Abe. For its part, the South Korean government promised to never mention the comfort women history again. During the negotiations, Japan requested that a statue commemorating the comfort women that was placed near the Japanese Embassy in Seoul by a private group be removed. The South Korean government only agreed that it would discuss the matter with the group.
The comfort women statue was never removed, possibly a result of the fact that the South Korean government had a more pressing issue with the impeachment of President Park over a corruption scandal. When a second statue was erected in December 2016 near the Japanese consulate in Busan by another civic group, the Japanese government protested that South Korea had violated the agreement and the Vienna Convention on Diplomatic Relations. In addition to recalling its ambassador indefinitely, Japan suspended negotiations over a currency swap and ended high-level economic talks.
Japan’s first claim, that South Korea broke the agreement, does not appear to be valid. In the agreement, the South Korean government promised to not criticize Japan over the comfort women issue, and this promise has so far been kept. In the agreement, the South Korean government only promised to discuss the removal of the statue with the private group. If the South Korean government discusses the removal with the group, then it has complied with the agreement. On February 23, the South Korean government sent a letter to the district office in Busan requesting the city to remove the statue, but the district office told the press that it had no authority to remove the private statue. Article 21 of the South Korean Constitution guarantees the freedom of speech. The statues, memorializing the victims, were erected by private groups. The Japanese government is asking the South Korean government to curtail a constitutional right of its citizens.
Japan’s claim, that South Korea is violating the Vienna Convention of Diplomatic Relations, is more creative, but it does not appear to have more merit. Japan refers to Article 22(2) for its claim. The article reads: “The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” Japanese chief Cabinet secretary Yoshihide Suga claims that South Korea violated “the Vienna Convention on Diplomatic Relations, which requires host countries to protect diplomatic missions from the impairment of their dignity.” However, the erection of the statue by a private group commemorating wartime victims of the defunct Japanese Empire does not likely impair the dignity of the current Japanese government’s mission. In addition, possibly violating a constitutional guarantee of free speech does not seem to be an appropriate step for South Korea to take to prevent a possible, but unlikely, impairment of the mission’s dignity.
Whether the current diplomatic crisis is resolved, the issue of comfort women is far from being settled. In a February 2017 poll, 70 percent of South Koreans surveyed said that they wanted the comfort women agreement to be renegotiated, and 78 percent said that the statue in Busan should remain. With President Park under impeachment, and with the possibility of a new administration, there is no guarantee that the South Korean government will continue to pressure groups to remove the statues. In fact, comfort women statues are being erected worldwide. However, so long as the South Korean government does not criticize Japan in regards to the comfort women issue, it will not violate the agreement, and allowing private citizens the freedom to keep the memory of the comfort women alive does not violate the agreement or international diplomatic law.
 Cho Jae-hyon, Data Show Park Chung-hee Pledged Allegiance to Japanese Army, The Korea Times (Nov. 6, 2009, 07:16 AM) http://www.koreatimes.co.kr/www/news/people/2013/08/178_55034.html.
 Colin Joyce, Japanese PM Denies Wartime ‘Comfort Women’ were Forced, The Telegraph (Mar. 3, 2007, 12:01 AM) http://www.telegraph.co.uk/news/worldnews/1544471/Japanese-PM-denies-wartime-comfort-women-were-forced.html.
 Robert Dujarric, Why are Japan’s Apologies Forgotten?, The Diplomat (Nov. 25, 2013) http://thediplomat.com/2013/11/why-are-japans-apologies-forgotten/; Yes, We Remember the Facts, [Advertisement] http://cdn-ak.f.st-hatena.com/images/fotolife/d/dj19/20121112/20121112212143.jpg.
 Hiroko Tabuchi, Women Forced Into WWII Brothels Served Necessary Role, Osaka Major Says, N.Y Times (May 13, 2013) http://www.nytimes.com/2013/05/14/world/asia/mayor-in-japan-says-comfort-women-played-a-necessary-role.html.
 Anna Fifield, Japanese Historians Contest Textbook’s Description of ‘Comfort Women, Wash. Post (Mar. 17, 2015) https://www.washingtonpost.com/world/japanese-historians-contest-textbooks-description-of-comfort-women/2015/03/17/6e5422e3-09a3-4d96-a520-8a5767ab93e4_story.html?utm_term=.9a6752015459.
 Williamson, supra note 2.
 Choe Sang-hun, Japan and South Korea Settle Dispute Over Wartime ‘Comfort Women’, N.Y Times (Dec. 28, 2015) https://www.nytimes.com/2015/12/29/world/asia/comfort-women-south-korea-japan.html.
 Choe Sang-hun and Motoko Rich, Japan Recalls Ambassador to South Korea to Protest ‘Comfort Woman’ Statue, N.Y Times (Jan. 6, 2017) https://www.nytimes.com/2017/01/06/world/asia/japan-south-korea-ambassador-comfort-woman-statue.html?_r=0.
 Kyodo, South Korean Government Asks Dong District to Move Busan ‘Comfort Women’ Statue, The Japan Times (Feb. 23, 2017) http://www.japantimes.co.jp/news/2017/02/23/national/politics-diplomacy/south-korean-government-asks-dong-district-move-busan-comfort-women-statue/#.WLl4N4WcH4h.
 The Constitution of the Republic of Korea July 17, 1948, revised Oct. 29, 1987, art. 21.
 Kyodo, supra note 17.
 Vienna Convention on Diplomatic Relations, art. 22(2), Apr. 18, 1961, 23 UST 3227, 500 UNTS 95.
 Merrit Kennedy, ‘Comfort Woman’ Statue Sparks Diplomatic Row Between Japan and South Korea, NPR (Jan. 6, 2017) http://www.npr.org/sections/thetwo-way/2017/01/06/508538196/comfort-woman-statue-sparks-diplomatic-row-between-japan-and-south-korea.
 In addition, as for the first part of art. 22(2), the Japanese mission is not being intruded upon or damaged in any way. And international practice holds that “[p]ublic demonstrations outside embassies will not necessary involve a ‘disturbance of the peace of the mission.” See Eileen Denza, Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations, 20 Eur. J. Int. Law. (2009). Moreover, removal of the statue would likely cause massive protests. See Hyoung Joo Choi & Jethro Mullen, Man Sets Himself on Fire at Protest Outside Japanese Embassy in Seoul, CNN (Aug. 12, 2015) http://www.cnn.com/2015/08/12/asia/south-korea-comfort-women-protest-self-immolation/index.html; 70 Percent of People Call for Renegotiation of Seoul-Tokyo Deal on ‘Comfort Women Survey, (Feb. 17, 2017, 12:07 PM) Yonhap News Agency http://english.yonhapnews.co.kr/news/2017/02/17/0200000000AEN20170217006000315.html.
 70 Percent of People Call for Renegotiation of Seoul-Tokyo Deal on ‘Comfort Women Survey, (Feb. 17, 2017, 12:07 PM)) Yonhap News Agency http://english.yonhapnews.co.kr/news/2017/02/17/0200000000AEN20170217006000315.html.