Diplomacy and Its Others: The Case of Comfort Women

Abstract

The “Comfort Women incident,” now at least several decades old, troubles the familiar view of law as a funnel for politics. Viewed as a funnel, the wide range of legal, political, cultural, and diplomatic efforts to seek or resist redress for the system of sexual slavery institutionalized by the Japanese military during the Second World War would be assessed as ultimately pushing in the same direction: toward vindicating human rights. We see in the Comfort Women incident a far more chaotic interaction of law and politics. As critical legal feminist, we are concerned with finding a truthful and ethical way to respond to the horrors of sexual slavery, while also recognizing that claims on behalf of victims are often appropriated by nationalist, imperialist, and capitalist agendas. The first step in our project on the place of multi-situational law in a multi-situational politics of responses to the Comfort Women issue, this brief presentation identifies what we term the diplomatic style and analyses its collision with the constitutional law style in a landmark 2011 judgment of the Constitutional Court of Korea.

In contrast to the reluctance of courts in many countries to intervene in foreign affairs, the Constitutional Court held that the constitutional rights of the plaintiffs, former Korean Comfort Women, required the Korean government to use the dispute settlement provisions in a bilateral treaty to seek compensation for the plaintiffs from the government of Japan. Legal scholars tend not to separate out courts’ assumptions about the nature of diplomacy as one reason for their hands-off approach to foreign affairs, as distinct from concerns about law on the one hand and politics on the other. We show that focusing on diplomacy and the diplomatic style helps us to think about the implications of the Constitutional Court’s more interventionist approach. The relationship of law to politics becomes, as with the relationship of diplomacy to politics, more of an eddy than a funnel. It is on this point that we perceive a glimmer of feminist hope in the decision.

Keywords: Comfort Women, Sexual Slavery, Feminism, International Law, Diplomatic Protection, Diplomacy, Constitutional Law, Human Rights, Foreign Affairs, Constitutional Court of Korea, Supreme Court of the Philippines