Vanderbilt Journal of Transnational Law

From Shanghai to Globocourt: An Analysis of the "Comfort Women's" Defeat in "Hwang v. Japan"

First Page



This Note introduces Kim Soon-duk, a former "comfort woman" whose story is sadly typical of the estimated 200,000 young women sexually enslaved by Japan during World War II. Kidnapped by Japan, Kim was shipped to China where she was brutally raped by as many as forty Japanese soldiers a day for three years. Kim kept her story a secret until the early 1990s, when the stubborn refusal of the Japanese government to admit its ugly history finally became too much for her to bear.

As more and more evidence emerged linking high Japanese officials, even Emperor Hirohito himself, to the "comfort women" regime, Japan reluctantly admitted its participation in the formulation and institution of the program. Nevertheless, legal efforts to force Japan to atone for its past in a meaningful way have largely failed. With one rather unremarkable exception, Japanese courts have routinely dismissed the claims of former "comfort women" as improper for judicial decision. Citing international law and Japan's post-war treaties, Japanese courts have insisted that compensatory questions should be taken up instead by the Japanese parliament. To date, the government's response remains half-hearted and unsatisfactory. As the women wait for justice, Japan waits for them to die.

Frustrated by Japan's recalcitrance, Kim and fourteen other former "comfort women" brought suit against Japan in the U.S. District Court for the District of Columbia. Observing that victims of the Nazi Holocaust were able to employ a litigation strategy that eventually forced the involvement of the political branches of both German and the United States and achieved a settlement not otherwise possible, the women hoped to mimic that success. The suit, based on the Alien Tort Claims Act, argued that Japan violated norms of international law by instituting and promulgating the "comfort women" program. Because the Foreign Sovereign Immunities Act bars most claims against foreign governments, however, Japan's motion to dismiss the case was granted. D.C. District Judge Kennedy's opinion in Hwang v. Japan rejected the plaintiffs' arguments that the statutory exceptions to the Foreign Sovereign Immunities Act could be properly invoked. In the alternative, Judge Kennedy held that the case raised a nonjusticiable political question more appropriate for decision by the political branches.

This Note concludes that the court's decision in Hwang v. Japan is sound. A different result would have required the court to overturn legal precedent and threaten the partnership between the United States and Japan, a relationship whose foundations began in 1951 with the conclusion of the San Francisco Treaty. The success achieved in the Holocaust litigation required cultural and historical dispositions not present in the "comfort women" case, and widespread use of U.S. courts to settle such matters seriously threatens the ability of the Executive branch to conduct foreign affairs. The successful fusion of the Alien Tort Claims Act with an exception under the Foreign Sovereign Immunities Act would be especially damaging to U.S. foreign policy, allowing foreign nationals to sue their own governments in U.S. courts. The court's decision in Hwang v. Japan averts the emergence of Globocourt, at least for the time being.

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