The Japan-South Korea Claims Agreement: Identification of Subsequent Agreement and Practice

Abstract

Abstract Japan and the Republic of Korea have been confronted with a series of disputes arising from the interpretation and application of the 1965 Claims Settlement Agreement – a pivotal treaty underpinning their post-war relationship. Their disputes have become further compounded by complex treaty practices on the part of both parties ever since. Two States, including their respective executive and judicial branches, have not only adopted diverging interpretations, but have also slightly modified their own interpretations over the ensuing years. Even at the domestic level, several organs adopt diverging interpretations. Against the backdrop of such a confusing situation, a number of discussions, including those on the part of scholars and the judiciary, tend to rely on a variety of subsequent conducts in relation to the 1965 Agreement. Faced with the need to explore the role of subsequent conduct on the part of States parties in relation to treaty interpretation, this article attempts to identify whatever may be pertinent subsequent agreement and subsequent practice on the part of Japan and Korea concerning the 1965 Claims Agreement within the meaning of Articles 31 and 32 of the Vienna Convention on the Law of Treaties and in the light of the ILC’s 2018 draft conclusions on subsequent agreement and practice. Conversely, the 1965 Claims Agreement is expected to function as a litmus test as to whether the ILC’s draft conclusions can provide any meaningful guidance as to how to approach such a complex situation.