Sovereign Immunity
Author | International Law Group |
On October 4, 2001, the United States District Court for the District of Columbia dismissed a suit brought against Japan by 15 Asian women who had been used as "comfort women" by the Japanese Army during World War II on the grounds of immunity granted to Japan under the Foreign Sovereign Immunities Act of 1976 [28 U.S.C. Section 1602] ("FSIA").
During World War II, the Japanese government kept approximately 200,000 Asian women as "comfort women" in state-sponsored and government-resourced "comfort houses." Japanese forces abducted these women from their homes in Japanese-occupied territories (including Taiwan, Korea, the Philippines, and Guam) and forced them to provide sexual favors to members of the Japanese army. The soldiers paid a fee to enter, the time and lengths of visits being determined based on rank. The proceeds of these comfort houses benefitted the Japanese military.
The court acknowledged that, with several exceptions, countries retain their traditional sovereign immunity from suit under the FSIA, unless they have explicitly and unambiguously waived it. The plaintiffs allege that Japan waived this immunity (a) by accepting and signing the Potsdam Declaration, it explicitly waived immunity under Section 1605 (a) (1), (b) by taking part in slavery, a jus cogens violation, it impliedly waived immunity under Section 1605 (a) (1), and (c) by engaging in activities that fall within the definition "commercial activity" exception in Section 1605 (a) (2), where the actions committed outside of U.S. territory had a direct effect within the United States. For the purposes of the case, the court interpreted the FSIA to apply to violations occurring before 1952.
First, the court ruled that signing the Potsdam Declaration did not constitute an explicit waiver on the part of Japan under Section 1605 (a) (1). According to precedent, the waiver must be clear, intentional, and unambiguous. The Potsdam Declaration did not contain within its text an explicit statement that Japan intended to waive its immunity and subject itself to civil actions in United States courts.
A foreign government cannot waive its immunity under Section 1605 (a) (1) by signing an international agreement that contains no mention of a waiver of immunity to suit in United States courts or even the acknowledgment of a possible cause of action in the United States. See Argentine Republic v. Amerada Hess Shipping Corp., 448 U.S. 428 (1989). While the Potsdam provision does...
To continue reading
Request your trial