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Mary De Ming Fan
excerpted from: Mary De Ming Fan, The Fallacy of the
Sovereign Prerogative to Set De Minimis Liability Rules for Sexual
Slavery, 27 Yale Journal of International Law 395-420, 395-399 (Summer
2002)(169 Footnotes)
Tomasa Salinog remembers her rape at thirteen and her initiation into
Imperial Japan's system of 'comfort stations.' Japanese soldiers burst
into her home in the middle of the night, soon after the Japanese
invasion of the Philippines in 1942. They decapitated her father and
removed her to a garrison where two soldiers raped her and then beat her
unconscious. After this initiation, she served as a 'comfort woman' in
the garrison, used by Japanese soldiers from the afternoon until late
into the night, her body priced in blocks of time allocated to each
soldier. Hwang Geum Joo, who grew up in Japanese-occupied Korea,
remembers her 'recruitment' differently. When she was nineteen, Emperor
Hirohito purported to order all unmarried girls to work in Japanese
military factories. She reported to the train station where she was
packed into a Japanese military train carrying about fifty girls per
car, and taken to a troop station. There she was repeatedly raped for
two weeks. Then she was installed in a commodified rape center,
euphemistically misnomered a 'comfort station,' where she served thirty
to forty soldiers on the average day. She was also beaten daily. Like
more than 200,000 other human commodities in Imperial Japan's system of
pay-to- rape centers, both girls were priced according to perceived
racial inferiority. As a Korean, Hwang Geum Joo fetched a higher price
than Filipina Tomasa Salinog. The payments that the soldiers made rarely
went to the women, but were retained to pay for the purported costs of
cosmetics, housing, or 'national security.'
Decades later, these women have yet to receive an admission or
finding of legal responsibility from the Japanese government, much less
reparations. In 2001, the women and other survivors brought suit in U.S.
District Court against Japan under, inter alia, the commercial activity
waiver to modify foreign sovereign immunity in 28 U.S.C. § 1605(a)(2).
The decision in Hwang Geum Joo v. Japan derailed their effort, holding,
inter alia, that state-sponsored commodified rape and sexual slavery
failed to qualify for the commercial activity waiver of foreign
sovereign immunity. This ruling is an anomaly in light of the tests
prescribed for commercial activity cases. This Comment argues that the
opinion's reasoning that forced prostitution is an exercise of sovereign
power rather than a brutal commodification of women's bodies legitimizes
an historial inequity in the proscription of slavery in international
law that U.S. courts today should not recognize.
Although multiple treaties prohibited slavery by the early twentieth
century, separate conventions treated forced prostitution as distinct
from 'slavery' and considered it a 'domestic' issue on which each
sovereign state could legislate individually. Forced prostitution was
defined in the 1910 International Convention for the Suppression of the
White Slave Traffic as '[t]he case of the retention, against her will,
of a woman or girl in a house of prostitution.' This is essentially the
commodification of repeated rape and sexual slavery. The resemblance of
the condition to slavery is emphasized by the term 'White Slave' in the
title of the Convention. This Comment therefore uses the terms 'forced
prostitution,' 'commodified sexual slavery,' and 'commodified rape'
interchangeably, though preferring as more accurate the latter two terms
over the former when not discussing treaties employing the former term.
This Comment explains that the relegation of commodified sexual slavery
to the 'domestic' sphere created a liability rule exception to the
property rule governing human bodies that disproportionately affected
women and girls. Couched in terms of Calabresi and Melamed's seminal
formulation of the property/liability rule framework, a liability rule
provides that bodies may be taken by force with compensation set ex post
by the state. In contrast, a property rule bars taking without ex ante
bargaining. This Comment also uses the term 'de minimis liability rule'
to signify the situation wherein no bargaining leading to agreement
occurs before a forcible taking of an initial entitlement, and the
compensation--if any--is set at a value so low in comparison to the
value of the resource as to effectively value the initial entitlement at
zero.
This Comment argues that the commercial activity reasoning in Hwang
Geum Joo v. Japan recharacterizes Japan's act of commodified mass rape
as an act that usurps the power of conquered states to set liability
rules for sexually enslaved bodies in their territory. Essentially, the
idea of commodified sexual slavery as an activity akin to commercial
activities in which private parties often engage vanished from the
court's analysis. This also explains the anomolous contrast between the
Hwang Geum Joo court's commercial activity ruling, and the D.C.
Circuit's decision in Princz v. Federal Republic of Germany declining to
rule that the leasing of Holocaust-era Jewish slaves to industrial
concerns by Germany was not a commercial activity.
Part II describes the events leading up to Hwang Geum Joo, and the
strong case for holding that commodified sexual slavery and rape
constitute a 'commercial activity' within the meaning of 28 U.S.C. §§
1605(a)(2) and 1603(d). This Part also argues that the district court's
ruling raises the question of whether U.S. courts may recognize, from
the Hwang Geum Joo court's extreme statist perspective, a purported
sovereign prerogative to sanction or induce forced prostitution.
Part III describes the embodiment of the notion of the sovereign
prerogative to set liability and property rules for victims of forced
prostitution in pre-World War II-era treaties.
Part IV describes two prominent treaties in the post-World War II era
that eliminate the sovereign prerogative to set property and liability
rules for women's bodies, bringing about a convergence in an
international property rule for all human bodies. This Part argues that
three sources of law render erroneous the Hwang Geum Joo court's
implicit recognition of the sovereign prerogative to set liability rules
for women and girls forced into prostitution: Japan's ratification of
treaties eliminating the sovereign prerogative to set property and
liability rules for women's bodies; the United States' signing of the
Convention to Eliminate All Forms of Discrimination Against Women; and
the Thirteenth Amendment to the U.S. Constitution.
Methodologically, this Comment aims to deliver an objective analysis,
aided by some terms associated with economic analysis. While this goal
diverges from the feminist belief in 'permanent partiality,' this paper
does embrace the melding of techniques and readiness to recognize
gendered inequalities in purportedly neutral bodies of law that
distinguish feminist analyses. Though acknowledging that economic
analysis is vulnerable to many of the critiques employed by feminist
authors towards international law's institutions and elites, this
Comment finds a male-shaped lense useful to explain male-shaped
international law and analysis. While law is not neutral, objective or
rational, the description and understanding of its impact may be based
on rational, objective inquiries and modes of analysis. |
