Even a Final, Irreversible, Absolutely Done Deal Can Be Broken

(Bloomberg View) -- Can an international deal ever really be final? President Donald Trump seems to think the answer is no, given his penchant for withdrawing from  agreements made under President Barack Obama -- the Paris climate change accords, the Trans-Pacific Partnership on trade and (maybe) the Iranian nuclear deal.

But what about international agreements that actually declare themselves to be irreversible? That’s the case with the 2015 Japan-South Korea deal that was aimed at ending once and for all the conflict between the countries over the sexual enslavement of so-called Korean comfort women during World War II. The countries went so far as to say explicitly that “the issue is resolved finally and irreversibly.”

Yet the two countries are now wrangling over the same issue again. A new South Korean president, Moon Jae-in, who belongs to a different party from his predecessor who signed the deal, is demanding a fresh apology. And Japan’s nationalist prime minister, Shinzo Abe, is threatening to skip opening ceremonies at the Winter Olympics in Pyeongchang unless Korea backs down.

Logically, it should be possible for parties to bind themselves permanently to certain agreements, from Catholic marriage to a compact between 13 states to form a union.

From a formal legal perspective, however, permanent agreements are tricky to create.

It’s a principle of international law that states have the authority to withdraw from their agreements, including treaties. There’s even a treaty saying so. Article 54 of the Vienna Convention on the Law of Treaties says that a state party can withdraw from a treaty according to its own provision or with the consent of all the parties to the treaty.

The Vienna principle leaves room for treaties that can’t be broken. But they have to say explicitly that they are permanent.

In this way, permanent treaties are a bit like constitutional provisions that declare themselves unamendable. They are rare and solemn. But they aren’t truly permanent -- because in practice, they can be breached or broken.

That’s close to what is happening with the Japan-South Korea deal. Its text does indeed say it is final. But technically it wasn’t a treaty, just an agreement. So South Korea isn’t exactly breaching. It’s revisiting -- in a way that clearly violates the spirit of the treaty.

You can imagine Japan’s frustration. Abe, who was prime minister when the deal was struck, specifically at the time expressed “his most sincere apologies and remorse to all the women who underwent immeasurable and painful experiences and suffered incurable physical and psychological wounds as comfort women.”

In Asian cultures including Japan and South Korea, apologies still mean something, in a way they don’t always in the U.S. Although it was morally imperative for Abe to apologize, he necessarily paid a domestic political price for doing so.

What Abe got in exchange for his apology (plus a token billion yen, or $8.8 million, payment) was supposed to be closure. The South Koreans were expressly promising not to embarrass Abe or another Japanese prime minister.

The South Korean guarantee of future silence may have been morally doubtful. It isn’t at all clear that a nation should agree to forgo future invocation of a terrible wrong done to its citizens -- no matter the political gain.

Nevertheless, a promise is a promise. And no one doubted at the time that South Korea was promising not to do exactly what it is now doing: raising the issue again in order to embarrass Abe and make domestic political hay out of nationalist resistance to Japan.

By deviating from its guarantee, the left-of-center South Korean government is signaling that it can’t and won’t see itself as fully bound by its right-of-center predecessor. In that sense, South Korea’s government is taking a page right out of the Trump playbook.

And there’s not much Japan can do about it. Abe is refusing to take further action. South Korea is insisting that it isn’t really breaking the deal because it isn’t seeking renegotiation. That’s disingenuous, of course. Asking for a new apology is precisely an attempt to reopen what was described as irreversible.

Despite these postures on both sides, there’s no simple recourse when a country breaks a deal. Japan wouldn’t and can’t go to war or impose sanctions over this. All it can do is fume -- and be careful not to rely too much on future deals with South Korea.

That’s the lesson learned by the rest of the world over Trump’s withdrawals, too. The word of the U.S. can’t any more be expected to outlast a change in administration.

The contrast with the Cold War era of bipartisan, centrist foreign policy could hardly be greater.

Democracies face special challenges when it comes to creating coherent, continuous foreign policy. Shifting course radically every four or eight years is obviously a bad idea. As a norm, it’s downright foolish.

The solution, however, doesn’t lie in making international agreements -- at least not any more. They are increasingly made to be broken, the Japan-South Korea kerfuffle demonstrates.

What we need is domestic consensus to do foreign policy sensibly. That remains some ways off in the U.S.,  and the stakes are much greater than apology and embarrassment.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.

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