And Still More on the Comfort Women

Just when you thought that the comfort women issue could not generate any more news, on Friday, Japan’s Supreme Court rejected claims by Chinese comfort women and forced laborers (see here and here). The ruling is interesting for three reasons.

First, it would appear to effectively end any chance for a Japanese domestic legal resolution to the comfort women controversy. That, combined with the comfort women’s failures to obtain legal relief in other jurisdictions, including here in the United States, leaves the international poltical arena as the only remaining avenue for relief. That, in turn, may incentivize further efforts in the U.S. Congress to play a role in this issue. Second, even as it denied the plaintiffs legal relief, the decision is notable for its admission of Japan’s role in these atrocities, in contrast to Abe’s recent attempts to avoid further admissions and to back away from those already made.

Finally, for international lawyers, another interesting aspect is the fact that the Japanese Supreme Court based its ruling on a waiver theory, i.e., that a 1972 Communique between Japan and China had resulted in a waiver by China of its citizens’ war-time related claims against Japan. I’ve not seen the communique, but its title alone makes me wonder as to its treaty status (as opposed to just being a political commitment like the Shanghai Communique concluded between the U.S. and China in the same era). If it’s a treaty, we could certainly debate whether the content of that treaty had China making the waiver found by the Japanese courts. But, if it was only a political commitment, is a binding waiver even possible?