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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.