State Immunity as applied to the Japanese Military as Purchaser and Joint Tortfeasor : Case of Korean ‘comfort women’
0
조회
0
다운로드
1
인용
0
참고문헌
키워드
초록
The redress and reparation efforts for the “comfort women” of the Japanese military during the Pacific War have been hampered in their home countries by the state immunity doctrine. In this paper, we first evaluate the current state of jurisprudence on state immunity doctrine, especially as expressed in the seminal 2012 Ferrini ICJ decision. There the concept of “armed forces” has been emphatically commandeered to bolster the strict application of state immunity, and a full legal analysis under the state immunity doctrine, namely, that of the putative exception of “territorial torts,” was cut short by the court upon their finding of the element of “armed conflicts”, “armed forces”. However, the reason for making exceptions to state immunity is that state actions are sometimes not exercises of sovereignty but private commercial acts such as e.g., hiring, contracting, property owning or private civil acts such as negligently causing damages inside the forum state, etc. Japan’s mobilization and maintenance of ‘comfort women’ and ‘comfort stations’ does not constitute ‘armed conflicts’, the quintessential exercises of sovereignty. It was the result of colonialism whereby men and women of occupied territories within the empire were forced into most subservient and inhumane roles in the intra-empire economy supplying its imperial war efforts. The evolution of jurisprudence on exceptions to state immunity should not be shut down easily with respect to ‘comfort women’ issues on the ground of a nexus to “armed forces”, “armed conflicts.” For subject matter relevance, the less well-known 1992 Weltover decision of the US Supreme Court interpreting the American codification of the state immunity doctrine is instructive, where it characterized purchase of bullets and other military supplies as a commercial act exempt from state immunity. Such shut-down of the full analysis is especially worrying because it is during ‘armed conflicts’ that worst tragedies especially against women take place and they happen at the hands of ‘armed forces’. The Japanese military, as the end-customer of ‘comfort services’, solicited/procured and paid for ‘comfort services’ to reduce the cost of the war. These private legal acts incentivized the private contractors into recruiting Korean women already impoverished under colonialism by deceit and into treating the Korean women thus recruited harshly and inhumanely during the ‘comfort services’. Throughout the relevant periods, the Japanese military set the specifications of the services to be delivered, exercising its prerogative as the end-customer and primary contractor. It is for this role as a joint tortfeasor in the “territorial tort” of fraudulent human trafficking and also as a purchaser in the “commercial activity “ of purchasing ‘comfort services’ that the modern Japanese government should be held accountable in a Korean court of law despite state immunity.
Abstract
The redress and reparation efforts for the “comfort women” of the Japanese military during the Pacific War have been hampered in their home countries by the state immunity doctrine. In this paper, we first evaluate the current state of jurisprudence on state immunity doctrine, especially as expressed in the seminal 2012 Ferrini ICJ decision. There the concept of “armed forces” has been emphatically commandeered to bolster the strict application of state immunity, and a full legal analysis under the state immunity doctrine, namely, that of the putative exception of “territorial torts,” was cut short by the court upon their finding of the element of “armed conflicts”, “armed forces”. However, the reason for making exceptions to state immunity is that state actions are sometimes not exercises of sovereignty but private commercial acts such as e.g., hiring, contracting, property owning or private civil acts such as negligently causing damages inside the forum state, etc. Japan’s mobilization and maintenance of ‘comfort women’ and ‘comfort stations’ does not constitute ‘armed conflicts’, the quintessential exercises of sovereignty. It was the result of colonialism whereby men and women of occupied territories within the empire were forced into most subservient and inhumane roles in the intra-empire economy supplying its imperial war efforts. The evolution of jurisprudence on exceptions to state immunity should not be shut down easily with respect to ‘comfort women’ issues on the ground of a nexus to “armed forces”, “armed conflicts.” For subject matter relevance, the less well-known 1992 Weltover decision of the US Supreme Court interpreting the American codification of the state immunity doctrine is instructive, where it characterized purchase of bullets and other military supplies as a commercial act exempt from state immunity. Such shut-down of the full analysis is especially worrying because it is during ‘armed conflicts’ that worst tragedies especially against women take place and they happen at the hands of ‘armed forces’. The Japanese military, as the end-customer of ‘comfort services’, solicited/procured and paid for ‘comfort services’ to reduce the cost of the war. These private legal acts incentivized the private contractors into recruiting Korean women already impoverished under colonialism by deceit and into treating the Korean women thus recruited harshly and inhumanely during the ‘comfort services’. Throughout the relevant periods, the Japanese military set the specifications of the services to be delivered, exercising its prerogative as the end-customer and primary contractor. It is for this role as a joint tortfeasor in the “territorial tort” of fraudulent human trafficking and also as a purchaser in the “commercial activity “ of purchasing ‘comfort services’ that the modern Japanese government should be held accountable in a Korean court of law despite state immunity.
참고문헌 (42)
- "Seeking the True Story of Comfort Women" (2021)[URL]
- "Japan Cannot Claim Sovereign Immunity and Also Insist that WWII Sexual Slavery was Private Contractual Act" (2021)[URL]
- Aiko Yoshioka, "Analysing Representations of the Comfort Women lssue: Gender, Race, Nation and Subjectivities 14 (1997) (citing Yoshiaki Yoshimi, Jugun Ianfu shiryoshu (Documents on Mil. Comfort Women)", ~ (1992)
- "Statement by Chief Cabinet Sec'y" (1993)[URL]
- "The “Comfort Women” Issue and the Asian Women’s Fund" (2003)[URL]
- "Announcement by Foreign Ministers of Japan and the Republic of Korea" (2015)[URL]
- "South Korea’s Comfort Women Reject Deal with Japan" (2015)[URL]
- "Japan again denies role in sexual slavery" (2007)[URL]
- "2016 Ga-Hap 505092 Compensation for Damage" (2021)[URL]
- "2016 Ga-Hap 580239 Compensation for Damage" (2021)[URL]
- "Jurisdictional Immunities of the State (Ger. v. It., Greece Intervening), judgment, 2012 I.C.J. 1, 57 (Feb. 3); Sir Ian Sinclair, The Law of Sovereign Immunity: Recent Developments", RECUEIL DES COURS, 167(113), pp.198~199 (1980)
- "Schooner Exch. v. McFaddon, 11 U.S. 116, 134", ~ (1812)
- "Jones v. United Kingdom, 2014-II Eur. Ct. H.R. 188", ~ (2014)
- "The European Convention on State Immunity of May 16, 1972" (1972)
- "The United Nations Convention on Jurisdictional Immunities of States and Their Property of December 2, 2004", ~ (2004)
- C.K. Hall, "UN Convention on State Immunity: The Need for a Human Rights Protocol", Int’l and Compar. Law Q, 55, pp.411~426 (2006)
- Alexander Orakhelashvili, "State Immunity and Hierarchy of Norms: Why the House of Lords Got it Wrong", EUR.J. INT'L L, 18, pp.955~969 (2008)
- "Ferrini v Federal Republic of Germany , Italian Court of Cassation, n. 5044", 4, 11 March 2004, 128 ILR 659, 2004
- "Hwang Geum Joo v. Japan 172 F.2d 52", ~ (2001)
- "Saudi Arabia v. Nelson, 507 U.S. 349, 360", ~ (1993)
- "Jurisdictional Immunities of the State (Ger. v. It., Greece intervening) Judgment, 51, ¶ 139" (2012)[URL]
- 1 AC 270 (appeal taken from Eng.),
- "Rep. of the Int’l Law Comm’n on the Work of its Forty-Third Session, U.N. Doc. A", 46, pp.1991, ~
- J. Craig Baker, "Negotiating the Complex Interface between State Immunity and Human Rights: An Analysis of the International Court of Justice Decision in Germany v. Italy", Int’l Comm. L. Rev, 15, pp.415~ (2013)
- Thomas Weatherall, "Jus Cogens and Sovereign Immunity : Reconciling Divergence in Contemporary Jurisprudence", GEO. J. Int’l L, 46, pp.1151~ (2015)
- Marius Emberland, "McElhinney v. Ireland App. No. 31253", 96; Al-Adsani v. United Kingdom App. No. 35763, 97, pp.American J. Int’l L, 2002[DOI]
- "Natoniewski v. Germany, IV CSK 465", 09, 2010
- Andrew Dickinson, "Germany v. Italy and the Territorial Tort Exception: Walking the Tightrope", J. Int’l Crim. Just, 11, pp.147~166 (2013)
- "Researcher, Asia Peace and History Institute, Paper Presentation at Setting the Record Straight: Primary Sources and Evidence on ‘Comfort Women’ Issues" (2021)[URL]
- Bang-Soon L. Yoon, "Race and Racism in Modern East Asia", pp.459~ (2015), Brill
- Council of Europe, Committee of Legal Advisors on Public International Law, "Proceedings of the Seminar on State Immunity under International Law and Current Challenges", ~ (2017)
- "Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 614", ~ (1992)
- "Janini v. Kuwait Univ., 43 F.3d 1534, 1537", ~ (1995)
- "Rush-Presbyterian-St Luke's Med. Ctr. v. Hellenic Republic, 877 F.2d 574, 581", ~ (1989)
- "Sun v. Taiwan, 201 F.3d 1105, 1107", ~ (2000)
- "Zveiter v. Brazilian Nat’l Superintendency of Merck Marine, 833 F. Supp. 1089, 1093", ~ (1993)
- "Saudi Arabia v. Nelson, 507 U.S. 349, 360", ~ (1993)
- "Virtual Def & Dev, Int'l, Inc. v. Republic of Moldova, 133 F. Supp. 2d 9, 4", ~ (1999)
- "Cicippio v. Islamic Republic of Iran, 30 F.3d 164, 167", ~ (1994)
- "Princz v. Federal Republic of Germany, 26 F.3d 1166, 1172", ~ (1994)
- Joseph P. Nearey, "Seeking Reparations in the New Millennium: Will Japan Compensate the “Comfort Women” of World War II?", Temp. Int’l & Compar. L. J, 15, pp.121~145 (2001)
- "Immunity for International Crimes?: Developments in the Law on Prosecuting Heads of State in Foreign Courts" (2011)[URL]