On Dec. 30, 2016, a South Korean civic group placed a bronze statue of a girl in front of the Japanese consulate in the southern port city of Busan. It commemorates as many as 200,000 enslaved military prostitutes, known as "comfort women," from Korea and other parts of East Asia under Japanese domination during the second world war. In response, Japan recalled its ambassador.
The first such statue was unveiled by the Korean Council for Women Drafted for Military Sexual Slavery outside the Japanese embassy in Seoul on Dec. 14 2011. It marked the 1,000th rally held there weekly without interruption since 1992 to press Japan to make just reparations.
Since then, at least 37 more have sprung up in South Korea with additional statues erected abroad by local activists. This action has taken place despite a Japanese anti-statue lobby, and unsuccessful legal challenges. Such statues now exist in the United States, Canada, Australia and China. And a museum dedicated to the Taiwanese victims opened in Taipei last year.
Japan claims the statues violate South Korea's treaty obligations under the Vienna Conventions, which both countries have ratified. But a closer reading of international law suggests that the statues are protected by the freedom of expression.
What international law?
The 1961 Vienna Convention on Diplomatic Relations and 1963 Vienna Convention on Consular Relations lay out standard rules of diplomacy. They require host states to prevent "any disturbance of the peace of [the diplomatic mission/consular post] or impairment of its dignity."
There's undoubtedly a need to protect diplomatic and consular staff and their premises from any acts of violence or intimidation. And such outrages sadly do occur on the Korean peninsula and elsewhere.
In July 1996, for instance, a Japanese ultranationalist rammed the gate of the South Korean embassy in Tokyo with his car. About 16 years later, a South Korean truck driver returned the favor at the Japanese embassy in Seoul. The South Korean consulate in Kobe has also been smoke-bombed.
As the incidents above illustrate, the two neighbors have had fraught relations for some time. Many Koreans still resent Japan's usurpation of their national sovereignty and harsh rule during the colonial period (1910-45).
And prominent Japanese politicians, including Prime Minister Abe Shinzo have caused uproar in the region by denying or downplaying Japan's past aggression or atrocities such as the "comfort women" or the 1937 Nanking massacre. Nor is the Japanese education system conducive to historical introspection, with regular outrage engendered by historical revisionism.
The recent row over the statues, then, is a part of this continuing struggle over history. But does an ostensibly innocuous display of a symbolic female figures disturb the peace or impair dignity in legal terms?
At issue is the freedom of expression and assembly, a fundamental human right enshrined in most national constitutions including those of Japan and South Korea. That freedom is also protected by the 1948 Universal Declaration of Human Rights and 1966 International Covenant on Civil and Political Rights, adhered to by 168 countries, including the two East Asian neighbors.
State practice and domestic case law
Protest at embassies and consulates are not confined to this region. In 1976, the U.S. Congress removed the provision banning picketing of diplomatic premises outside Washington, D.C., due to fears it violated the freedom of speech and peaceful assembly guaranteed by the First Amendment.
And in 1988, the U.S. Supreme Court struck down as unconstitutional a D.C. statute banning the display of insulting signs within 500 feet of foreign legations. This was the result of a lawsuit brought by activists seeking to protest before the Soviet and Nicaraguan embassies. The D.C. statute, which dated back to 1938, was enacted to curb protests before the embassies of Nazi Germany and Fascist Italy.
In 1984, a British court held that the dignity of mission premises was impaired only if abusive or insulting behavior or actual violence occurred. The U.K. government agreed, stating that "the essential requirements are that the work of the mission should not be disrupted, that mission staff are not put in fear, and that there is free access for both staff and visitors."
In 1992, an East Timorese group in Australia planted 124 white crosses outside the Indonesian embassy to protest an army massacre. But the Australian government removed them in accordance with a regulation purporting to implement its obligation under the Vienna Conventions.
The forceful dissent cited international precedents and reasoned that subjective criteria, such as "what the foreign country or its mission considers impairs its dignity" or "any personal desire of a minister or government to please or placate the country concerned," could not be decisive. Nor could the dissenting judge see why "fixed noiseless harmless objects bear on dignity" but people chanting or holding banners continue to be permitted.
In 2003, the South Korean Constitutional Court has similarly struck down a blanket ban on demonstrations within 100 meters of diplomatic premises. In a 2000 decision, the court balanced the freedom of expression with the interests protected by the Vienna Conventions, namely the security and functioning of the foreign missions, by upholding protest bans only when such interests came under threat.
Other legal considerations
In 2015, Seoul acknowledged Japanese concerns about the statue outside the latter's embassy in a joint "announcement" on the "comfort women" issued by the Japanese and South Korean foreign ministers on Dec. 28.
It pledged to "strive to solve this issue in an appropriate manner through taking measures such as consulting with related organizations about possible ways of addressing this issue." But the convoluted wording of the announcement appears to tacitly recognize that the government cannot simply remove the statues by fiat.
It is worth noting that Japan can sue South Korea for the alleged violations of the Vienna Conventions before the International Court of Justice, which can exercise jurisdiction only with the consent of both parties.
This is because both countries have given consent to ICJ jurisdiction over the interpretation and application of the Vienna Conventions by ratifying the 1961 and 1963 Optional Protocols to the Vienna Conventions.
The dozens of "comfort girl" statues that have sprung up not only in South Korea but also in the United States, Canada, Australia, China and Taiwan since 2011 may, in fact, be contributing to the nationalist reactions in the two nations.
For South Koreans, the issue comes down to anger at Japan for its brutal colonial rule as much as human rights concerns for the victims. But the country's failure to acknowledge atrocities committed by its own military during the Vietnam War leaves it open to charges of hypocrisy.
None of this, of course, absolves Japanese responsibility for a crime against humanity that has been condemned as the "largest human trafficking case of the past century." And it might be wiser for Japan to take measures to shore up the 2015 accord with South Korea.
Instead of being recalled, the Japanese ambassador could have met and spoken with the survivors. Japan could also extend compensation to the Taiwanese and Filipino "comfort women" as they have been demanding.
Such actions may induce the voluntary relocation of the statues. And they would mean Japan would also be living up to its professed commitment to the shared fundamental values of freedom, democracy and human rights.