Eppinger, Knop, & Riles: Diplomacy and Its Others: The Case of Korean Comfort Women

Monica E. Eppinger (Saint Louis Univ. - Law), Karen Knop (Univ. of Toronto - Law), & Annelise Riles (Cornell Univ. - Law) have posted Diplomacy and Its Others: The Case of Korean Comfort Women. Here's the abstract:

How can critical legal feminists find a way to respond, truthfully and ethically, to the horrors of wartime sexual slavery institutionalized in the Japanese military’s system of “Comfort Women,” while recognizing, at the same time, that claims on behalf of victims of sexual violence are often appropriated by nationalist, imperialist, and capitalist agendas? A first step is to understand how the bewildering range of political, legal, and cultural interventions that constitute the Comfort Women incident collide with one another, refashion one another, and give one another energy. Part of a larger project on the place of multi-situational law in an equally multi-situational politics, this brief presentation, as a very first step, 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.

The Court found the Korean government liable for violating the constitutional rights of former Comfort Women because it has not used the dispute settlement procedure available under a 1965 bilateral treaty to seek compensation from the government of Japan. This result is in marked contrast to a 2010 Philippine decision on the equivalent issue as regards Filipina Comfort Women. In keeping with the reluctance of courts in many countries to intervene in foreign affairs, the Supreme Court of the Philippines held that the “political question” doctrine in domestic law prevented it from considering the wisdom of the Philippine government’s position that all postwar claims against Japan have been settled, and held, furthermore, that a state has no duty of diplomatic protection under international law.

We show that distinguishing diplomacy from other law/politics concerns that account for courts’ hands-off approach to foreign affairs helps us to think about the implications of the Korean Constitutional Court’s judgment. By injecting itself into diplomacy, and by taking on the responsibility for managing diplomatic tactics, the Court also makes itself relevant — and arguably vulnerable — to the constituencies to which diplomats have long been vulnerable. Whereas scholars often tend to treat law as a funnel for politics, 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, more than on the linkage of international rights to constitutional duties, that we perceive a glimmer of feminist hope in the decision.