# Iwanowa v. Ford Motor Co.

> District Court, D. New Jersey · October 28, 1999 · 67 F. Supp. 2d 424

URL: https://www.frixlaw.com/law-library/cases/2375384

## Case

- **Full name:** Elsa IWANOWA, on Her Own Behalf, and on Behalf of All Others Similarly Situated; Namely Persons Compelled to Perform Forced Labor for Ford Werke A.G., Between 1941 and 1945, Plaintiffs, v. FORD MOTOR COMPANY and Ford Werke A.G., Defendants
- **Court:** District Court, D. New Jersey
- **Decided:** October 28, 1999
- **Citations:** 67 F. Supp. 2d 424; 1999 WL 1040169
- **Precedential status:** Published
- **Opinion:** Opinion by Greenaway
- **Judges:** Greenaway
- **Cited by:** 160 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2375384

## How later opinions describe it (automated extraction)

- stating in reference to claim brought pursuant to Torture Victims Protection Act, enacted as a note to ATCA, that equitable tolling, may be appropriate where defendant has “actively misled” plaintiff, but, to avoid dismissal, a complaint asserting equitable tolling must contai…
- finding “[t]he specter of adjudicating thousands of claims arising out of a war that took place more than fifty years ago amounts to a more daunting task for this Court to tackle than the [court in Kelberine v. Societe Internationale, 363 F.2d 989 (D.C.Cir.1966) ] 11 could hav…
- rejecting the plaintiff’s argument that she was not asserting claims for reparations but rather for restitution for forced labor on grounds that both the German Supreme Court and the German Federal Government had held that forced labor claims are reparations claims
- holding class action against German manufacturer and its American parent nonjusticiable under political question doctrine where plaintiffs sought compensation and damages for forced labor in manufacturer’s factory during World War II

## Opinion text

AMENDED OPINION
GREENAWAY, District Judge.
INTRODUCTION
This matter comes before the Court on the motion of defendants Ford Motor Company (“Ford”) and its German subsidiary, Ford Werke A.G. (“Ford Werke”) (collectively “Defendants”), seeking to dismiss plaintiff Elsa Iwanowa’s (“Iwanowa” or “Plaintiff’) Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Before this Court ruled on the above-mentioned motion, Defendants filed a second motion to dismiss on the grounds of nonjusticiability and international comity. This Court shall consider each of Defendants’ motions.
This action arises out of Iwanowa’s allegations that Ford Werke coerced her, and thousands of other persons, to perform forced labor under inhuman conditions during World War II without compensa
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tion.
1
The Complaint asserts causes of action against Defendants (1) for restitution/unjust enrichment and quantum me-ruii/quasi-contract under Michigan and Delaware law
2
; (2) for restitution/unjust enrichment under German law; and (3) for violations of the law of nations. Iwanowa seeks disgorgement of all economic benefits which have accrued to Defendants as a result of her forced labor, compensation for the reasonable value of her services and damages for the inhuman conditions Ford Werke inflicted upon her.
For the reasons set forth below, Defendants’ motion to dismiss the claims under international law for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1), is denied. Defendants’ motion to dismiss all of the claims, pursuant to Rule 12(b)(6), is granted. Defendants’ motion to dismiss on the grounds of nonjusticiability and international comity is also granted. Accordingly, the Complaint is dismissed in its entirety, with prejudice.
3
BACKGROUND
4
NAZI GERMANY
Ford established its German subsidiary, Ford Werke, in 1925. (Compl.f 6.) In 1931, Ford Werke moved its headquarters and manufacturing plant to Cologne, Ger-many.
(Id.)
Ford Werke’s Cologne plant produced passenger vehicles until 1938, when it began manufacturing tracked vehicles for the German government to be used to transport troops and military equipment during World War II. (Comply 11.) By 1941, Ford Werke had ceased production of passenger vehicles and had begun to devote its entire production capacity to the manufacture of military trucks.
(Id.)
The Complaint alleges that Ford Werke produced approximately sixty percent (60%) of the three-ton tracked vehicles the German army used during World War II.
(Id.)
By December, 1941, the German National Socialist Party (the “Nazis”)
5
had achieved domination over territories, in Europe and elsewhere, with an aggregate population of 350,000,000 people. (Compl.f 8.) The Nazi juggernaut required more labor than the voluntary labor the German people could provide.
(Id.)
In order to support its war effort, the Nazi regime turned to unpaid, forced labor.
(Id.)
Specifically, the Nazis used forced labor from the captive population, inmates of concentration camps and prisoners of war.
(Id.)
On March 21, 1942, the Nazi Party appointed Fritz Sauckel (“Sauckel”) as Nazi Plenipotentiary General for the Allocation of Labor, with explicit authority over all available manpower, including workers recruited from abroad and prisoners of war.
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(Comply 9.) After Sauckel’s appointment, the Nazi regime obtained forced laborers by conducting manhunts in the streets, movie houses and churches.
(Id.)
The Nazi regime forcibly deported over 7,500,-000 persons from occupied territories to Germany to support its war effort.
(Id.)
Sauckel encouraged German industries to bid for forced laborers in order to meet production quotas and to increase their profits.
(Id.
f 10.) The Complaint alleges that Ford Werke began utilizing French prisoners of war as forced laborers in 1941 and continued utilizing thousands of forced laborers throughout World War II.
(Id.)
The Complaint further alleges that by 1942, unpaid, forced laborers comprised twenty-five percent (25%) of Ford Werke’s work force.
(Id.)
By 1943, that percentage had risen to fifty percent (50%), where it remained until the end of the war.
(Id.)
The forced laborers at Ford Werke’s Cologne plant included French prisoners of war; Russian, Ukrainian, Italian and Belgian civilians; and concentration camp inmates from Buchenwald.
(Id.)
The Complaint alleges that Ford Werke profited from the use of forced laborers because, although it paid the Nazi government
for
its use of the prisoners, it did not compensate the laborers for their work. (Comply 12.) Consequently, Ford Werke’s annual profits doubled between 1939 and 1943.
(Id.)
The Complaint further alleges that Ford Werke placed its wartime profits in a growing reserve account or reinvested them in the company through the building of additional production capacity.
(Id.)
In the years succeeding the war, as a result of its economic reserves and increased production capacity, Ford Werke continued producing trucks at a substantial profit, even though most of Europe, and specifically the German economy, was devastated.
(Id.
¶ 14.) Iwanowa alleges that Ford Werke’s internal reserves and large production capacity resulted from the work of unpaid, forced laborers.
(Id.)
In addition to bringing suit against Ford Werke, Iwanowa has also named Ford, Ford Werke’s parent company, as a defendant. Ford is a party based on its ownership of between fifty-two percent (52%) to seventy-five percent (75%) of Ford Werke’s outstanding shares during World War II.
(Id.
¶ 15.) Although the Nazi party nationalized or confiscated many American companies in Germany, the Nazis did not confiscate Ford Werke as enemy property; instead, the Nazis allowed Ford to continue its controlling ownership of Ford Werke.
(Id.
¶¶ 16-17.) Indeed, the Nazis named Robert H. Schmidt (“Schmidt”), Ford Werke’s CEO,
Wehr-wirtschaftsfuehrer,
meaning Military Economic Leader.
(Id.
¶ 17.) In addition to his duties as Military Economic Leader, Schmidt continued to manage Ford Werke on Ford’s behalf until the end of the War. (Id.)
6
IWANOWA
Plaintiff Iwanowa was born in 1925, in Rostov, Russia. Starting in November, 1941, the Nazi army occupied Rostov. (Compl-¶ 24.) In June, 1942, the Nazi army began abducting adolescents as young as fourteen (14) years of age for transportation to Germany as forced laborers.
(Id.)
On October 6, 1942, Nazi troops abducted Iwanowa and transported her to Germany with approximately 2,000 other adolescents.
(Id.
f 25.) When Iwanowa arrived in Wuppertal, Germany, a representative of Ford Werke purchased her, along with thirty-eight (38) other adolescents from Rostov.
(Id.)
Ford Werke’s representative had Iwanowa, and the other adolescents, transported to Ford Werke’s plant in Cologne.
(Id.)
Once in Cologne, Ford Werke placed Iwanowa with approximately sixty-five Ukrainian deportees in a
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wooden hut, without heat, running water or sewage facilities.
(Id.)
They slept in three-tiered bunks without bedding and were locked in at night.
(Id.)
From 1942-1945, Ford Werke required Iwanowa to perform heavy labor at its Cologne plant.
(Id.
¶ 26.) Iwanowa’s assignment consisted of drilling holes into the motor blocks of engines for military trucks.
(Id.)
Ford Werke security officials supervised the forced laborers, at times using rubber truncheons to beat those who failed to meet production quotas.
(Id.)
Iwanowa continued to perform forced labor for Ford Werke until 1945, when the victorious Allied Powers
7
liberated her, and thousands of other slave laborers, in 1945. After the War, she became a citizen of Belgium, where she presently resides. Ford Werke’s forced laborers, including Iwanowa, have never received compensation for their years of forced labor.
(Id.
¶ 27.)
On March 8, 1998, Iwanowa filed the instant suit on her own behalf and on behalf of a class of thousands of persons who were compelled to perform forced labor for Ford Werke between 1941-1945. Iwanowa seeks compensation for the reasonable value of her services, restitution of unjust enrichment flowing to Defendants, as a consequence of her labor, and damages for the pain and suffering that Defendants’ imposition of inhuman working conditions caused her.
Defendants moved to dismiss on the grounds that (1) this Court lacks subject matter jurisdiction over the claims under the law of nations; (2) all of the claims are barred by the applicable statute of limitations; (3) the Complaint fails to state a cognizable cause of action; (4) the claims are nonjusticiable; and (5) consideration of the instant claims would violate principles of international comity. This Court heard oral argument on Defendants’ motions on March 8,1999 and August 5,1999.
DISCUSSION
I.
OVERVIEW OF GERMAN JUDICIAL SYSTEM
In their submissions, the parties refer this Court to German cases and statutes; thus, a brief overview of the current German judicial system is essential. Foreign law questions are considered questions of law in the federal courts, and may be resolved by reference to any relevant information. Fed.R.Civ.P. 44.1;
see also Si-dali v. Immigration and Naturalization Serv.,
107 F.3d 191 , 197 (3d Cir.1997) (stating that “[t]he determination of foreign law in the federal courts is a question of law.”).
The German court system creates a dichotomy between ordinary courts and special courts.
See I Business Transactions in Germany
§ 4.04[2] (Campbell et al. eds., 1998)
[“I Business Transactions
”]. Ordinary courts handle all civil and criminal cases not otherwise assigned by law to one of the six special courts: labor courts, administrative courts, social welfare courts, tax courts, constitutional courts and the Federal Patent Court.
8
Id.
Since its unification in 1991, Germany consists of sixteen states: eleven from the former Federal Republic of Germany (“F.R.G.” or “West Germany”), and five from the former German Democratic Republic (“G.D.R.” or “East Germany”).
See Germany: Lato Digest of the Federal Republic of Germany, in MaHindale-Hub-bell International Law Digest
GER-1, GER-1
[“Germany: Law Digest
”]. There are ordinary courts and special courts at both the federal and state level. So far as here material, German law is
*435
federal law and, thus, is identical in each of the States.
See I Business Transactions, supra
§ 4.04[2][a]; Benjamin Kaplan et al.,
Phases of German Civil Procedure,
71 Harv.L.Rev. 1193, 1195-96 (1958). Further, although state court judges are appointed and paid by the state where the court sits, the state courts’ jurisdiction and procedure is established by federal law.
See
Kaplan,
supra,
at 1195. Consequently, although the first level of review is always before a state court, unlike the United States, there are no parallel federal and state courts in Germany.
9
See id.; see also Germany: Law Digest, supra,
at GER-10.
As in most civil law jurisdictions, Ger-many does not follow the rule of
stare decisis. See Randi Seltzer, The Erroneous Interpretation of the Foreign Compulsion Defense in the ADEAc Mahoney v. RFE/RL, Inc.,
23 Brook. J. Int’l L. 655, 682 (1997) (stating that German courts do no more than apply the law when they make a decision, thus, “the decision itself can have no force as law beyond the very case in which it is rendered.”) (citing Norbert Horn et al.,
German Private and Commercial Law: An Introduction
11 (Tony Weir, trans., 1982)); Edward J. Eberle,
Human Dignity, Privacy, and Personality in German and American Constitutional Law,
1997 Utah L.Rev. 963, 970 n. 22 (citing Donald P. Kommers,
The Constitutional Jurisprudence of the Federal Republic of Germany
48 (1989));
see also
(I Tr. at 17:22-25.)
10
(stating that “German courts don’t abide by stare decisis. There’s no principle of
stare decisis
under German law. They [German courts], respectfully, look at past cases, but each case is supposed to do on its own from the civil code.”).
In practice, however, German courts strive to adhere to precedent and generally follow the holdings of the German Supreme Court, the highest court for civil and criminal matters.
See
Eberle,
supra,
at 970 n. 22;
see also
David S. Clark,
The Selection and Accountability of Judges in West Germany: Implementation of a Rechtstaat,
61 S.Cal.L.Rev. 1795, 1847 (1988) (stating that “judge made law in Germany occupies large areas in the corpus of legal rules. In some ways German judges are just as bold and innovative as their common law colleagues.”);
Interpreting Statutes: A Comparative Study
90, 97 (D. Neil MacCormick & Robert S. Summers eds., 1991) (stating that although precedents are not a formal source of German law, they play an important role in justifying judicial decisions, and the party wishing to depart from precedent carries the burden of argument). Moreover, decisions of the Federal Constitutional Court represent binding interpretations of the German constitution, the
Grundgesetz. See
Eberle,
supra,
at 970 n. 22.
A.
Ordinary Courts
The lowest ordinary courts are the
Amtsgerichte,
the Municipal Courts (also known as Local Courts).
See Germany: Law Digest, supra,
at GER-10. Municipal Courts have jurisdiction over cases where the amount in controversy does not exceed 10,000 deustchmark (“DM”), approximately $5,412.00 American dollars.
11
Id.
They also have exclusive jurisdiction over landlord-tenant disputes, family law, divorces, bankruptcy and nonlitigation proceedings such as probate and guardianship.
See I Business Transactions, supra
§ 4.04[2][a][I]. There is one Municipal Court per city or county and cases are
*436
heard by a single judge.
See Germany: Law Digest, supra,
at GER-10. Parties litigating in a Municipal Court may proceed
pro se. See
Astrid Stadler,
The Law of Civil Procedure, in Introduction to German Law
357, 358 (Werner F. Ebke & Matthew W. Finkin, eds., 1996).
Parties may appeal decisions of the Municipal Courts to the
Landgerichte
(“LG”), the state District Courts (also known as Regional Courts).
See Germany: Law Digest, supra,
at GER-10. The District Courts’ venue covers several Municipal Courts.
See id.
District Courts possess both appellate and original jurisdiction.
See id.; I Business Transactions, supra
§ 4.04[2][a][ii]. In addition to reviewing the judgments of the Municipal Courts for findings of fact and conclusions of law, the District Courts are also courts of first resort in matters where the amount in controversy exceeds DM 10,000, and in cases not specifically assigned to the Municipal Courts or special courts.
See Germany: Law Digest, supra,
at GER-10; I
Business Transactions, supra
§ 4.04[2][a][ii]. Specific District Court panels
12
hear appeals from the Municipal Courts, while other panels handle cases in which the District Courts have original jurisdiction.
See I Business Transactions, supra
§ 4.04[2][a][ii]. Decisions of the District Courts rendered as appellate decisions reviewing the Municipal Courts’ judgments are final; no further appeal to another court exists.
See id.; Germany: Law Digest, supra,
at GER-11; Stadler,
supra,
at 371. Although three judges sit on each District Court panel, a single judge hears each case, unless the case is unusually complex, or is of fundamental importance.
See Germany: Law Digest, supra,
at GER-10;
I Business Transactions, supra
§ 4.04[2][a][ii], Parties appearing before the District Court must be represented by counsel.
See Germany: Law Digest, supra,
at GER-11; Stadler,
supra,
at 358.
Insofar as a District Court acted as a court of first resort, appeals for reasons of fact and/or law are heard by the
Oberlan-desgerichte
(“OLG”), the Courts of Appeals (also known as Higher Regional Courts).
See Germany: Law Digest, supra,
at GER-11;
I Business Transactions, supra
§ 4.04[2][a][iii]; Stadler,
supra,
at 371. Like the Municipal and District Courts, the Courts of Appeals are also state courts. Three judge panels called Senates hear civil appeals and five judge panels hear criminal appeals.
See I Business Transactions, supra
§ 4.04[2][a][iii]. There are up to three Courts of Appeals in each state.
See id.
The highest ordinary court is the
Bun-desgerichtshof
(“BGH”), the Supreme Court (also known as the Federal Court of Justice). This is the highest court for criminal and civil cases. The Supreme Court reviews the decisions of the Courts of Appeals on points of law only.
See Germany: Law Digest, supra,
at GER-11. The Supreme Court’s function,
inter alia,
is to ensure the uniform interpretation of the law. The Supreme Court hears cases only where (1) the sum involved exceeds DM 60,000 (approximately $32,471.00 U.S. dollars)
13
; (2) a Court of Appeals has granted leave to appeal because the case is of fundamental legal importance; or (3) a Court of Appeals wishes to depart from an existing ruling of the Supreme Court.
See
Stadler,
supra,
at 372. The Senates of the civil section of the Supreme Court are comprised of five judges.
See I Business Transactions, supra
§ 4.04[2][a][iv]. In order to assure uniformity of judicial decisions, however, the civil section and the criminal section each have nine judge panels, known as Great Senates, which rule on cases in which one Senate intends to de
*437
part from the rulings of another Senate.
See id.
B.
Special Courts
As stated
supra,
there are six special courts in Germany: (1) labor courts; (2) administrative courts; (3) social welfare courts; (4) tax courts; (5) constitutional courts; and (6) the Federal Patent Court.
See I Business Transactions, supra
§ 4.04[2]. Labor courts have jurisdiction over disputes between employers and employees, collective bargaining agreements and the regulation of trade unions.
See Germany: Law Digest, supra,
at GER-11;
I Business Transactions, supra
§ 4.04[2][e][I], Administrative courts have jurisdiction over matters involving zoning, immigration, state licenses, health, sanitation, transportation, regulation of the professions and the civil service.
See Germany: Law Digest, supra
at GER-11;
I Business Transactions, supra
§ 4.04[2][b]. Administrative courts also preside over claims against public authorities (federal, state or local) for violations of individual rights.
See I Business Transactions, supra
§ 4.04[2][b]. Social welfare courts hear cases involving social security, public mandatory health insurance and aid for the unemployed or disabled.
See Germany: Law Digest, supra,
at GER-11;
I Business Transactions, supra
§ 4.04[2][e][iii]. The structure of the labor, administrative and social welfare courts contains three levels of review. The respective special District Courts and Courts of Appeals represent the first two levels of review. The respective Federal Court (e.g., the Federal Labor Court, the Federal Administrative Court or the Federal Social Welfare Court) entertains the final appeal.
See I Business Transactions, supra
§§ 4.04[2][b], [c].
Tax courts have jurisdiction over tax matters, including custom duties and taxes on international and foreign trade.
See Germany: Law Digest, supra,
at GER-11. Constitutional courts preside over all constitutional matters. The tax courts and constitutional courts have only two levels of review. Only one tax court and one constitutional court exist in each state. The next and final level of review is at the federal level by the Federal Tax Court or the Federal Constitutional Court.
See Germany: Law Digest, supra,
at GER-11. The Federal Constitutional Court (the “
Bundesverfassungsgericht ”
or “BVerfG”) reviews the law and decisions of other courts, including other Federal Courts, when challenged on constitutional grounds.
See I Business Transactions, supra
§ 4.04[3][d];
Germany: Law Digest, supra,
at GER-11.
As stated in
supra
note 9, state courts lack jurisdiction over patent or trademark matters. Instead, parties may appeal decisions of the Federal Patent Office directly to the Federal Patent Court. Appeals from decisions of the Federal Patent Court are heard by the Supreme Court on points of law only.
See I Business Transactions, supra
§ 4.04[2][c][ii].
II.
CLAIMS UNDER THE LAW OF NATIONS
Iwanowa asserts that “[b]y knowingly utilizing unpaid, forced labor under inhuman conditions, [Defendants] violated the law of nations, including the Hague Convention and the Geneva Convention.” (Compl.f40.) Defendants have moved to dismiss Iwanowa’s claims under the law of nations based on (1) lack of subject matter jurisdiction; (2) failure to state a claim; and (3) expiration of the applicable limitations period.
A.
Motion to dismiss for lack of Subject Matter Jurisdiction
1.
Standard for Dismissal
Pursuant to Federal Rule of Civil Procedure 12(h)(3), “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action.” Thus, a motion to dismiss for lack of subject matter jurisdiction may be made
*438
at any time.
See id.; Mortensen v. First Fed. Sav. & Loan Ass’n,
549 F.2d 884, 891 (3d Cir.1977).
A defendant may attack a district court’s subject matter jurisdiction in one of two ways.
See Mortensen,
549 F.2d at 891 . First, a defendant may challenge subject matter jurisdiction by asserting that the complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction.
See id.; see also Cardio-Medical Assocs. Ltd. v. Crozer-Chester Med. Ctr.,
721 F.2d 68 , 75 (3d Cir.1983). In assessing a Rule 12(b)(1) motion based on the pleadings, the court “must assume that the allegations contained in the complaint are true.”
Cardio-Medical,
721 F.2d at 75;
Mortensen,
549 F.2d at 891 ;
see also Sitkoff v. BMW of N.Am., Inc.,
846 F.Supp. 380, 383 (E.D.Pa. 1994),
aff'd,
92 F.3d 1172 (3d Cir.1996). Under those circumstances, the court may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction.
See Mortensen,
549 F.2d at 891 ;
Kronmuller v. West End Fire Co. No. 3 Fire Dep’t of Borough of Phoenixville,
123 F.R.D. 170, 172 (E.D.Pa. 1988).
A defendant may also challenge a federal court’s jurisdiction by factually attacking the plaintiffs jurisdictional allegations as set forth in the complaint.
See Mortensen,
549 F.2d at 891 . In such circumstances, the “court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.”
Id.
Thus, “no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”
Id.
The court may consider affidavits, depositions and testimony to resolve factual issues bearing on jurisdiction.
See Gotha v. United States,
115 F.3d 176, 179 (3d Cir.1997). The plaintiff bears the burden of proving that the court has jurisdiction to adjudicate the claims in the complaint.
See Mortensen,
549 F.2d at 891 .
Although Defendants have not stated whether they consider their Rule 12(b)(1) motion to be a facial or factual attack, they have attached the Declaration of Professor Gerhard Laule to their reply brief. Furthermore, Iwanowa submitted the Declaration of Dr. Ekkehard Schumann with her opposition brief. Therefore, this Court will evaluate the 12(b)(1) motion as a factual attack and consider the declarations that the parties have submitted.
Upon consideration of the Complaint, the relevant case and statutory law and the declarations the parties have submitted to the Court, this Court finds that Defendants’ motion to dismiss the claims under the law of nations for lack of subject matter jurisdiction is without merit. As shown below, this Court has jurisdiction over the instant claims, pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350 .
2.
Alien Tort Claims Act
Iwanowa claims that the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350 , grants this Court subject matter jurisdiction over her claims under customary international law.
14
Originally promulgated as part of the Judiciary Act of 1789, the ATCA provides that
[t]he district courts shall have original jurisdiction of any civil action by an alien
*439
for a tort only, committed in violation of the law of nations or a treaty of the United States.
28 U.S.C. § 1350 .
The Complaint alleges that Defendants’ use of forced labor violated both the Hague Convention and the Geneva Convention.
15
(Comply 40.) At oral argument, however, Iwanowa’s attorneys clarified that Iwanowa is not asserting a claim under either of those treaties. (I Tr. at 19:8-12.) Rather, she is asserting a claim under the law of nations and is merely relying on the Hague and the Geneva Conventions as evidence of an emerging norm of customary international law. Thus, this Court need only address Iwanowa’s claim under the law of nations.
16
As stated above, Iwanowa contends that Defendants’ use of forced labor during World War II violates the law of nations. (Comply 40.) The ATCA confers federal subject matter jurisdiction when: “(1) an alien sues (2) for a tort (3) committed in violation of the law of nations (i.e., international law).”
Kadic,
70 F.3d at 238. The ATCA grants district courts subject matter jurisdiction to entertain “suits alleging torts committed anywhere in the world against aliens in violation of the law of nations.”
Id.
at 236.
As a citizen and resident of Belgium, Iwanowa is an alien. She alleges that Defendants committed a tort by forcing her to perform unpaid, forced labor under inhuman conditions. Thus, she has satisfied the first and second requirements for jurisdiction under the ATCA. This Court must now determine whether Defendants’ use of forced labor constitutes a violation of the law of nations.
a. Unpaid, Forced Labor Violates Law of Nations
“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”
Restatement (Third) of Foreign Relations Law
§ 102(2) (1987). In other words, customary international law is comprised of such widely held fundamental principles of civilized society that they constitute binding norms on the community of nations.
The law of nations “may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.”
United States v. Smith,
5 Wheat. 153 , 18 U.S. 153, 160-61 , 5 L.Ed. 57 (1820);
Kadic,
70 F.3d at 238;
Jama,
22 F.Supp.2d at 362. Further, courts may rely upon treaties (such as the
*440
Hague and Geneva Conventions) as evidence of an emerging norm of customary international law.
See Kadic,
70 F.3d at 238 & n. 1;
Jama,
22 F.Supp.2d at 362. If this inquiry reveals that forced labor violates “well-established, universally recognized norms of international law, as opposed to idiosyncratic legal rules, then federal jurisdiction exists under the [ATCA].”
Kadic,
70 F.3d at 239.
The use of unpaid, forced labor during World War II violated clearly established norms of customary international law. The Complaint alleges that Iwanowa “was literally purchased, along with 38 other children from Rostock [sic]
17
, by a representative of [Ford Werke].” (Comply 25.) Such assertions suffice to support an allegation that Defendants participated in slave trading.
See Doe v. Unocal Corp.,
963 F.Supp. 880, 892 (C.D.Cal. 1997);
National Coalition Gov’t of the Union of Burma v. Unocal, Inc.,
176 F.R.D. 329, 349 (C.D.Cal.1997) (allegations that defendants “knowingly accepted the benefit of and approved the use of forced labor” may be sufficient to state a claim for participation in slave trading). As shown below, all of the sources of international law expressly provide that the enslavement of civilians during war time violates the law of nations.
First, the Nuremberg Tribunals held that the enslavement and deportation of civilian populations during World War II constitutes a crime against humanity in violation of customary international law.
See
R. Jackson,
The Nuremberg Case
xiv-xv (1971). The Nuremberg trials “for the first time made explicit and unambiguous what was theretofore, as the tribunal has declared, implicit in International Law, namely, that ... to exterminate, enslave or deport civilian populations, is an international crime.”
Id.
(citing
The Final Report to the President by Justice Robert H. Jackson on the Nuremberg Trials
(Oct. 6, 1946)). Further, Nuremberg Principle IV(b) provides that the “deportation to slave labor ... of civilian populations of or in occupied territory” constitutes both a “war crime” and a “crime against humanity”. Nuremberg Charter, annexed to the London Agreement on War Criminals, Aug. 8, 1945, art. 6, 59 Stat. 1544 , 82 U.N.T.S. 279;
see also
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998, art. 7 ¶ 1(c), (d).
Second, courts have repeatedly held that “deportation to slave labor” violates the law of nations.
See Handel,
601 F.Supp. at 1426 n. 2;
Kadic,
70 F.3d at 239 (holding that conduct related to slave trade violates the law of nations);
Princz,
26 F.3d at 1180 (acknowledging that forced labor of civilians during World War II violated international law);
18
Siderman de
*441
Blake,
965 F.2d at 715 (finding that “[t]he universal and fundamental rights of human beings identified by Nuremberg—rights against genocide, enslavement, and other inhumane acts ... are the direct ancestors of the universal and fundamental norms recognized as
jus cogens.”); Tel-Oren,
726 F.2d at 781 (Edwards, J., concurring) (reiterating that genocide and slavery are “heinous actions—each of which violates definable, universal and obligatory norms”); LG [District Court] Bremen, 1 O 2889/90, at 7 (1998) (F.R.G.) [“LG Bremen (1998)”]
19
(‘Among these prevailing rules of international law is the law that prisoners of war and civilians in occupied territories may not be murdered or enslaved.”);
Krakauer v. Federal Republic of Germany,
LG [District Court] Bonn, 1 O 134/92, at 21 (1997) (F.R.G.)
[“Krakauer I,
LG Bonn (1997)”] (same),
rev’d on other grounds,
OLG [Court of Appeals] Cologne
[“Krakauer II,
OLG Cologne (1998)”], 7 U 222/97 (1998) (F.R.G.). Thus, the case law and statements of the Nuremberg Tribunals unequivocally establish that forced labor violates customary international law.
Defendants assert that even if forced labor violates the law of nations, Iwanowa has failed to establish subject matter jurisdiction under the ATCA because (1) no private right of action exists for violations of the law of nations and (2) the ATCA only applies to state actors. The Court shall address each of these arguments separately.
b. Private Right of Action for Violations of the Law of Nations
Defendants argue that the law of nations mimics treaties in that neither is self-executing and thus, neither is enforceable by private parties absent legislation. Defendants contend that the ATCA merely provides district courts with jurisdiction to address an alien’s claims under the law of nations in limited instances; namely, those in which Congress has enacted specific legislation authorizing a private right of action for such violations.
The majority of courts addressing claims under the law of nations have rejected Defendants’ narrow interpretation of the ATCA. Instead, those courts have concluded that the ATCA provides both subject matter jurisdiction and a cause of action for claims alleging violations of customary international law.
See Jama,
22 F.Supp.2d at 362-63;
Abebe-Jira v. Negewo,
72 F.3d 844, 848 (11th Cir.1996) (“we read the [ATCA] as requiring no more than an allegation of a violation of the law of nations in order to invoke section
*442
1350.”);
Kadic,
70 F.3d at 236 (concluding that the ATCA “appears to provide a remedy for the appellants’ allegations of violations related to genocide, war crimes and official torture”);
In re Estate of Ferdinand Marcos, Human Rights Litig., 25
F.3d 1467, 1475 (9th Cir.1994) ((iWe thus join the Second Circuit in concluding that the [ATCA], 28 U.S.C. § 1350 , creates a cause of action for violations of specific, universal and obligatory international human rights standards,” and “nothing more than a violation of the law of nations is required to invoke section 1350.”);
Xuncax v. Gramajo,
886 F.Supp. 162, 179 (D.Mass. 1995) (“ § 1350 yields both a jurisdictional grant and a private right to sue for tor-tious violations of international law ... without recourse to other law as a source of the cause of action.”);
Paul v. Avril,
812 F.Supp. 207, 212 (S.D.Fla.1993) (“The plain language of the [ATCA] and the use of the words ‘committed in violation’ strongly implies that a well pled tort[,] if committed in violation of the law of nations, would be sufficient [to give rise to a cause of action].”);
But see Tel-Oren,
726 F.2d at 810-20 (Bork, J., concurring).
20
The only case in this Circuit addressing the issue,
Jama,
followed this line of cases in holding that the ATCA provides both subject matter jurisdiction and a cause of action for violations of the law of nations.
See Jama,
22 F.Supp.2d at 363. The
Jama
Court noted that, after the Second Circuit’s decision in
Filartiga v. Peña-Irala,
630 F.2d 876 (2d Cir.1980)
21
; Congress could have amended the ATCA when it enacted the Torture Victim Protection Act of 1991 (“TVPA”)
22
to reflect its dis
*443
agreement with the courts’ interpretation of the ATCA.
See Jama,
22 F.Supp.2d at 363. Indeed, the TVPA is codified as a statutory note to the ATCA.
See supra
note 22. Congress, however, did not address whether the ATCA provides a private cause of action for violations of international law although it enacted the TVPA to codify the cause of action (torture) recognized in
Filartiga
under the ATCA.
See Kadic,
70 F.3d at 241.
The Eleventh Circuit, persuaded by both Congress’ silent endorsement of
Fi-lartiga
and subsequent interpretations of the ATCA, also found that the ATCA provides a private right of action.
See Abebe-Jira,
72 F.3d at 848 . The
Abebe-Jira
Court noted that the legislative history indicated that Congress was aware that
[t]he TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 [the ATCA], which permits Federal district courts to hear claims by aliens for torts committed in violation of the law of nations.
Abebe-Jira,
72 F.3d at 848 (quoting H.R.Rep. No. 367, 102d Cong., 2d Sess. 3,
reprinted in
1992 U.S.C.C.A.N. 84, 86). Based on this statement, the
Abebe-Jira
Court concluded that Congress recognized that courts viewed the ATCA as conferring both a forum and a private right of action to aliens alleging violations of international law. 72 F.3d at 848 .
This Court concludes that if Congress had disagreed with the courts’ finding of a private right of action under the ATCA, Congress could have, and likely would have, amended the ATCA to reflect its intent. Further, the “ ‘committed in violation’ language of the [ATCA] suggests that Congress did not intend to require an alien plaintiff to invoke a separate enabling statute as a precondition to relief under the [ATCA].”
Abebe-Jira,
72 F.3d at 847 ;
see also Paul,
812 F.Supp. at 212 . Accordingly, this Court finds that the ATCA provides both subject matter jurisdiction and a private right of action for violations of the law of nations.
See Jama,
22 F.Supp.2d at 362-63;
Abebe-Jira,
72 F.3d at 847-48 ;
Kadic,
70 F.3d at 236.
c.
Does the Law of Nations Apply to Private Actors?
Defendants contend that the Complaint does not allege violations of international law because such norms bind only states and its agents, not private corporations such as Defendants. While the Third Circuit has never addressed this issue, the Second Circuit recently held that
[w]e do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations
whether undertaken by those acting under the auspices of a state or only
as
private individuals.
Kadic,
70 F.3d at 239 (emphasis added)
23
. Similarly, in his often cited concurring opinion, Judge Edwards, although refusing to apply the ATCA to cover torture by non-state actors, stated that there are a “handful of crimes to which the law of nations attributes individual responsibility”, such as piracy and slave-trading.
Tel-Oren,
726 F.2d at 794-95 (Edwards, J., concurring);
see also Unocal Corp.,
963 F.Supp. at 891-92 (stating same);
National Coalition Gov’t,
176 F.R.D. at 348 (noting that private company utilizing slave labor may be subject to liability under the ATCA);
Jama,
22 F.Supp.2d at 362 (stating that “depending upon the nature of the offense, an ATCA claim may be brought against private individuals as well as state actors.”);
Islamic Salvation Front,
993 F.Supp. at 8 (following
Kadic
and holding that murder, mutilation, cruel
*444
treatment and torture, kidnaping, and summary executions constitute violations of international law whether committed by state or private actors);
Beanal v. Freeport-McMoRan, Inc.,
969 F.Supp. 362, 371 (E.D.La.1997) (following
Kadic
and holding that genocide violates the law of nations whether undertaken by state or nonstate actor).
In determining that private individuals who engage in slave trading violate the law of nations, the
Kadic
Court noted that “[i]ndividuals may be held liable for offenses against international law, such as piracy, war crimes, and genocide.”
Kadic,
70 F.3d at 240. As stated
supra,
deportation of civilian populations to slave labor is a war crime.
See supra
Part II.A.2.a; Nuremberg Charter, 82 U.N.T.S. 279. The
Kadic
Court further noted that section 702 of the Restatement (Third) of Foreign Relations Law
24
identifies violations that are actionable when committed by a state, whereas section 404 of the Restatement
25
lists a more limited category of violations of universal concern.
See Kadic,
70 F.3d at 240. The
Kadic
Court concluded that the inclusion of “slave trade” within both sections 702 and 404 of the Restatement demonstrates that this is an offense of “universal concern” for which non-state actors may be liable.
See id.
Several
pre-Kadic
decisions have stated that only state actors are liable for violations of international law.
See In re Estate of Ferdinand E. Marcos Human Rights Litig.,
978 F.2d 493, 501-02 (9th Cir.1992);
Sanchez-Espinoza v. Reagan,
770 F.2d 202, 206-07 (D.C.Cir.1985). These cases are inapposite. First, both of these cases expressly relied on Judge Edward’s concurring opinion in
Tel-Oren
and stating same.
See Sanchez-Espinoza,
770 F.2d at 206-07 (concluding that based on the reasons stated by Judge Edwards in
Tel-Oren,
the law of nations does not reach private, non-state conduct);
In re Estate of Ferdinand E. Marcos,
978 F.2d at 502 (citing Judge Edwards’ concurring opinion in
Tel-Oren).
As indicated
supra,
however, although Judge Edwards refused to “extend the definition of the ‘law of nations’ absent direction from the Supreme Court”, to cover torture by non-state actors, he stated that there are a “handful of crimes to which the law of nations attributes individual responsibility”, such as piracy and slave-trading.
Tel-Oren,
726 F.2d at 792, 794-95 (Edwards, J., concurring);
see also Unocal Corp.,
963 F.Supp. at 891 (stating that after
Tel-Oren,
individual liability remained for a handful of private acts, including piracy and slave trading);
Islamic Salvation Front,
993 F.Supp. at 8 (stating that “[t]he opinions in
Teh-Oren
did not hold that international law requires state action”).
Second,
Kadic
was decided after
Telr-Oren, Sanchez-Espinoza
and
In re Estate of Ferdinand E. Marcos.
Kadic’s recent interpretation of international law in 1995 carries greater weight than the conflicting interpretations of the three concurring opinions in
Tel-Oren,
which examined international law as it stood over fifteen years ago.
See Islamic Salvation Front,
*445
993 F.Supp. at 8. Customary international law is not static; thus, courts must interpret it as “it has evolved and exists among the nations of the world today.”
Id.
(quoting
Kadic,
70 F.3d at 238);
see also Tel-Oren,
726 F.2d at 777 (Edwards, J. concurring) (“[T]he ‘law of nations’ is not stagnant and should be construed as it exists today among the nations of the world.”).
Third, the Ninth Circuit later distanced itself from its statement in
In re Estate of Ferdinand E. Marcos
that only state actors are liable for violations of international law. In
Hamid v. Price Waterhouse,
51 F.3d 1411 (9th Cir.1995), the Ninth Circuit ignored its earlier comment in
In re Estate of Ferdinand E. Marcos
and merely stated that it did “not need to reach the issue of whether the law of nations applied to private as opposed to governmental conduct.”
Id.
at 1417 .
26
Fourth, none of these
cases
—Sanchez-
Espinoza, In re Estate of Ferdinand E. Marcos
or
Tel-Oren
—involved slave labor or slave trading.
Sanchez-Espinoza
involved allegations that, in violation of the law of nations, U.S. executive officials (including President Ronald Reagan) and organizations operating paramilitary training camps in the United States assisted and financed the Contra forces in their attempt to overthrow the Nicaraguan government. 770 F.2d at 204-07 . Both
In re Estate of Ferdinand E. Marcos
and
Tel-Oren
involved allegations of torture committed by non-state actors. “Because this action involves allegations of forced labor and because slave trading is included in that ‘handful of crimes’ to which the law of nations attributes individual responsibility, this action raises questions not addressed” in cases holding that private actors are not liable for violations of international law.
National Coalition Gov’t,
176 F.R.D. at 348 .
No logical reason exists for allowing private individuals and corporations to escape liability for universally condemned violations of international law merely because they were not acting under color of law. This Court is inclined to agree with
Kadic,
and its progeny, and find that private entities using slave labor are liable under the law of nations. However, this Court need not make that determination. As shown,
infra,
Iwanowa has pled sufficient facts to allege that Defendants acted as agents of the state.
d. Defendants Were De Facto State Actors
Defendants concede that the ATCA applies to
de facto
state actors. (Def.’s Reply Br. at 22) (citing
Filartiga,
630 F.2d at 884 ). Even assuming
arguen-do
that the ATCA only applies to state actors, the Complaint pleads sufficient facts to support a claim that from 1942-1945, Defendants were acting as
de facto
state actors. The Complaint alleges that the Nazi army abducted • adolescents in occupied territories, including Iwanowa, and transported them to Germany to work as slave laborers. (Compl.¶¶ 24-25.) The Complaint also asserts that Sauckel, the Nazi Plenipotentiary General for the Allocation of Labor, encouraged German industries to bid for forced laborers in order to meet production quotas and to increase their profits.
(Id.
¶¶ 9-10.) The Complaint further alleges that as a result of Sauckel’s solicitation, Ford Werke purchased forced laborers, including Iwanowa, from the Nazis.
(Id.
¶¶ 10, 25.)
Hence, the Complaint alleges that Defendants acted in close cooperation with Nazi officials in compelling civilians to perform forced labor. This constitutes an allegation that Defendants were
de facto
state actors and are therefore, liable under
*446
all possible interpretations of the ATCA.
27
(See also
I Tr. at 24:25-25:3) (Plaintiffs counsel’s assertion that Ford Werke acted under color of Nazi law when it utilized forced laborers).
The allegation that Ford Werke pursued its own economic interests, or that its own employees (as opposed to Nazi officials), mistreated Iwanowa, does not preclude a determination that Ford Werke acted as an agent of, or in concert with, the German Reich.
See
BGH [Supreme Court], NJW 1973, 1549, at 9-10 (F.R.G.) [“BGH (1973)”].
28
Indeed, German courts have held that private companies using forced labor as a result of Nazi directives, acted as agents of the German Reich. See
id.; Stancher v. I.G. Farben,
BGH [Supreme Court], RzW 1963, 525, at 4-5 (F.R.G.)
[“Stancher,
BHG (1963)”]; LG [District Court] Frankfurt, NJW 1960, 1575, at 2-3 (F.R.G.) [“LG Frankfurt (1960)”] (stating that “[b]ecause of the course taken by the war, any and all German industrial companies, whether operated as public law or private law entities, were required to put to work the foreign laborers assigned to them” by the Nazi regime);
see also Krakauer I,
LG Bonn (1997), at 15 (stating that concentration camp prisoners remained under the Nazi’s official authority during their work deployment).
Consequently, even if this Court were to find that no liability attaches to private actors for violations of international law, by showing that (1) she is an alien (2) suing for a tort (forced labor/slave trade) (3) committed by a
de facto
state actor (4) in violation of the law of nations, Iwanowa has established subject matter jurisdiction under the ATCA. Accordingly, Defendants’ motion to dismiss Iwanowa’s claims under international law for lack of subject matter jurisdiction is denied.
B.
Motion to Dismiss for Failure to State a Claim
Defendants have moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Iwanowa’s claims under the law of nations on three separate grounds: (1) the Paris Reparations Treaty subsumed all individual claims arising out of World War II into each nation’s reparations claims against Germany; (2) the claims are time-barred; and (3) the U.S.S.R. waived lwa-nowa’s claims. The Court shall address each argument separately.
1.
Standard for Dismissal for Failure to State a Claim
A motion to dismiss, pursuant to Federal of Civil Procedure 12(b)(6), may be granted only if, accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief.
See Nami,
82 F.3d at 65;
Holder v. City of Allentown,
987 F.2d 188, 194 (3d Cir.1993);
Bartholomew v. Fischl,
782 F.2d 1148, 1152 (3d Cir.1986). The Court may not dismiss the complaint unless plaintiff can prove no set of facts which would entitle him to relief.
See Conley v. Gibson,
355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957);
Graves v. Lowery,
117 F.3d 723, 726 (3d Cir.1997);
Unger v. National Residents Matching Program,
928 F.2d 1392, 1395 (3d Cir.1991);
Angelastro v. Prudential-Bache Sec., Inc.,
764 F.2d 939 , 944 (3d Cir.1985). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to
*447
support the claims.”
Scheuer v. Rhodes,
416 U.S. 232, 236 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974). In setting forth a valid claim, a party is required only to plead “a short plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a). To withstand a motion to dismiss, “a plaintiff is not required to provide evidence of or prove the truthfulness of his complaint.”
Quinones v. Szorc,
771 F.2d 289 , 291 n. 3 (7th Cir.1985). The court, however, is not required to accept conclusory allegations.
See Papasan v. Attain,
478 U.S. 265, 286 , 106 S.Ct. 2932 , 92 L.Ed.2d 209 (1986). Thus, the complaint “must set forth sufficient information to suggest that there is some recognized legal theory upon which relief may be granted.”
District of Columbia v. Air Florida, Inc.,
750 F.2d 1077, 1078 (D.C.Cir.1984).
A complete comprehension of the context of this litigation and the parties’ arguments cannot be attained without an overview of post-war Germany and four relevant treaties: (1) Agreement on Reparations From Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold, Jan 14, 1946, 61 Stat. 3157 , T.I.A.S. 1655 (“Paris Reparations Treaty”); (2) Convention Between the United Kingdom of Great Britain and Northern Ireland, France, the United States of America and the Federal Republic of Germany on the Settlement of Matters Arising Out of the War and the Occupation, May 26, 1952 (“Transition Agreement”) (as amended by Schedule IV to the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany, Oct. 23, 1954), U.S.-Fr.-U.K.-F.R.G., 6 U.S.T. 4117, 331 U.N.T.S. 219; (3) Agreement on German External Debts, Feb. 27, 1953, 4 U.S.T. 443, 333 U.N.T.S. 3 (“London Debt Agreement”); and (4) Treaty on the Final Settlement with Respect to Germany, Sept. 12, 1990, F.R.G.-G.D.R.-U.SU.S.S.R.-Fr.-U.K, 29 I.L.M. 1186 (“Two-Plus-Four Treaty”).
2.
Post-War Germany
On May 8, 1945, the Nazi army surrendered unconditionally.
See Germany: Law Digest, supra,
at GER-1. The Allied Powers’ immediate objective was to completely demilitarize, disarm and dismember Germany to the extent deemed necessary for future peace and security in Europe.
See
Protocol of Proceeding of the Crimea (Yalta) Conference, Sec. III, Feb. 11, 1945, 3 Bevans 1013 (‘Tai-ta Conference”). To implement this plan, the Allied Powers divided Germany into four occupation zones, American, British, French and Soviet, and assumed government control in their respective occupation zones.
See
Werner Maser,
Nuremberg: A Nation on Trial
33 (1979);
Germany: Law Digest, supra,
at GER-1. The most senior military commanders for each of the Allied Powers, Eisenhower (U.S.), Zhukov (U.S.S.R.), Montgomery (U.K.) and De-Latttre de Tassigny (France), formed the Inter-Allied Control Council with legislative authority over Germany.
See
Maser,
supra,
at 33. Although Berlin was situated in the Soviet zone, all four Allied Powers occupied and governed Berlin by inter-allied authority.
See Germany: Law Digest, supra,
at GER-1.
The occupying powers could not agree on Germany’s political and economic future. The U.S., France and the U.K. (‘Western Powers”) intended to create a democratic German state. In furtherance of this end, they (1) gave the Germans substantial administrative responsibility beginning in 1946, (2) set up state
(Lander)
governments with state parliaments in their zones of occupation (the “Western Zones”) and (3) helped the Germans draft a constitution, the Basic Law, in 1948.
See Germany: Law Digest, supra,
at GER-1. The Soviets objected to the Western Powers’ goals regarding the future political status of Germany, specifically, their efforts to create a fully sovereign Germany.
*448
See
Marian Nash Leich,
Contemporary Practice of the United States Relating to International Law,
85 Am.J. Int’l L. 155, 164 (1991). As shown
infra,
the U.S.S.R. and the Western Powers also disagreed on the issue of reparations. Consequently, in March, 1948, the U.S.S.R. left the Inter-Allied Control Council, thus initiating the division of Germany.
See Germany: Law Digest, supra,
at GER-1.
On May 23, 1949, the Western Powers established the F.R.G. in the Western Zones. In response to the creation of the F.R.G., the Soviets formed the G.D.R. in the Soviet Zone that same year.
See Ger-many: Law Digest, supra,
at GER-1. In 1954, the Western Powers' ended the occupation regime in the F.R.G.
See
Protocol on Termination of the Occupation Regime in the Federal Republic of Germany, Oct. 23, 1954, 6 U.S.T. 4117, 331 U.N.T.S. 219. However, the Western Powers explicitly reserved their rights with respect to Berlin and Germany as a whole, and to participate in the conclusion of a final peace treaty.
See id.
a. Yalta and Potsdam
In February, 1945, prior to Germany’s surrender, Roosevelt, Churchill and Stalin, the heads of the U.S., the U.K. and the U.S.S.R., respectively, met in Yalta to decide post-war policies.
See
Seymour J. Rubin,
The Washington Accord Fifty Years Later: Neutrality, Morality, and International Law,
14 Am.U. Int’l L.Rev. 61, 62 (1998). They agreed that “Germany must pay in kind for the losses caused by her to the Allied nations in the course of the war.” Yalta Conference, Sec. V.l. The U.S. the U.K. and the U.S.S.R. agreed that the Allied nations which bore the main burden of the war, suffered the greatest losses and organized the victory over Ger-many, would receive reparations from Ger-many.
Id.
Shortly after the war, the U.S., the U.K. and the U.S.S.R. met again, this time in Potsdam, and reiterated their Yalta understanding—to make Germany pay reparations.
See
Protocol of Proceedings Approved at Berlin (Potsdam), Sec. III, Aug. 2, 1945, 3 Bevans 1207 (“Potsdam Conference”). They decided to extract reparations from Germany in the form of machines, other industrial equipment and German external assets, rather than in monetary payments.
See
Henry A. Turner, Jr.,
The Two Germanies Since 1915,
at 12 (1987). They further agreed that the U.S.S.R. would take reparations in the form of (1) industrial equipment from the Soviet Zone and (2) German external assets in Finland, Bulgaria, Hungary, Romania and Eastern Austria.
See
Inter-Allied Reparation Agency,
First Report of the Secretary General for 1946 CIARA 1916 Report
”), at 8. In addition, since most of Germany’s production industry was located in the Western Zones, the U.S. and the U.K. agreed to give the U.S.S.R. twenty-five percent of the industrial equipment extracted from the Western Zones.
See id.
Since the Soviet Zone was mostly agricultural, the U.S.S.R. agreed to ship food and raw materials to the Western Zones as payment for fifteen percent of the industrial equipment it would receive.
See id.
Further, the U.S.S.R. agreed to satisfy Poland’s claims from its share of reparations.
See id.
In turn, the U.S. and the U.K. would satisfy the reparations claims of the rest of the Allies from the removal of industrial equipment in the Western Zones and from German external assets in countries other than those set aside for the U.S.S.R.
See id.
b. Paris Reparations Treaty
In January, 1946, the U.K. and the U.S., along with the governments of sixteen other nations
29
, met in Paris to decide upon the method of distributing reparations between those nations as to whom no decision had been reached at the
*449
Potsdam Conference.
30
The Paris conference culminated in the enactment of the Paris Reparations Treaty, which provided that each signatory nation would receive a percentage of the total reparations the Western Powers collected based on their war related damages and contribution to the Allied war effort.
See IARA 1916 Report,
at 8;
see also
Paris Reparations Treaty, Part I, Art. 1. The signatory nations agreed that Germany would pay reparations in the form of industrial and capital equipment, merchants ships, German external assets and monetary gold.
31
See
Paris Reparations Treaty, Part I, Art. 1.A, Part III. Further, the Western Powers agreed to dismantle and transfer Germany’s industrial plants located in their respective zones, along with any other German assets, to the Inter-Allied Reparation Agency
32
by the end of 1947, for redistribution as war reparations.
See IARA 1946 Report,
at 8.
Pursuant to the Paris Reparations Treaty, each signatory nation’s share of reparations was supposed to satisfy any and all claims held by a nation, or its nationals, against the German government or German companies. Specifically, the Paris Reparations Treaty provided that:
The Signatory Governments agree among themselves that their respective shares of reparation, as determined by the present Agreement,
shall be regarded by each of them as covering all its claims and those of its nationals against the former German Government and its Agencies, of a governmental or private nature arising out of the war....
Paris Reparations Treaty, Part I, Art. 2.A (“Article 2.A” or “Art. 2.A”) (emphasis added). In sum, the Paris Reparations Treaty authorized the Western Powers to seize Germany’s assets for distribution to the signatory nations in accordance with the Treaty, thereby satisfying any claims the signatory nations, or their nationals, might have against the German government or its “Agencies”.
The German Supreme Court has held that the term “Agencies” encompasses private corporations using forced laborers, such as Defendants.
See
BGH (1973), at 9;
Stancher,
BGH (1963), at 5. Thus, the parties agree that Article 2.A of the Paris Reparations Treaty subsumed the claims of the signatory nations, and their nationals, thereby precluding nationals of the signatory nations from bringing forced labor claims against the German government or German companies.
(See
II Tr. at 5:13-18.)
33
As stated by Professor Neu-borne at oral argument,
34
it would have been illogical to allow “private litigation against corporations all of whose assets were being seized, dismantled and taken and literally distributed to the people on whose behalf the litigation would have been brought.” (II Tr. at 10:3-8.)
However, the Paris Reparations Treaty did not subsume all individual claims.
*450
The War had produced a class of persons categorized as “nonrepatriable victims of German action” who had no national government to protect their interests. Consequently, the reparations scheme set forth in the Paris Reparations Treaty could not satisfy their claims. In order to assist nonrepatriable victims, the signatories inserted a provision in the Paris Reparations Treaty establishing a fund to assist nonrepatriable persons. Article 8 titled
Allocation of a Reparation Share to Nonrepatriable Victims of German Action
provides in relevant part:
In recognition of the fact that large numbers of persons have suffered heavily at the hands of the Nazis and now stand in dire need of aid to promote their rehabilitation but will be unable to claim the assistance of any Government receiving reparation from Germany, the Governments of the United States, France, the United Kingdom, Czechoslovakia and Yugoslavia, in consultation with the Inter-Governmental Committee on Refugees, shall as soon as possible work out in common agreement a plan on the following general lines:
A. A share of reparation consisting of all the non-monetary gold found by the Allied Armed Forces in Germany and in addition a sum not exceeding 25 million dollars shall be allocated for the rehabilitation and resettlement of nonrepatria-ble victims of German action.
* * * * * *
D. The persons eligible for aid under the plan in question shall be restricted to true victims of Nazi persecution and to their immediate families and dependents, in the following classes:
% ¡¡t %
* *
(iii) Nationals of countries formerly occupied by the Germans who cannot be repatriated or are not in a position to be repatriated within a reasonable time....
Part I, Art. 8 (“Article 8” or “Art. 8”). This fund, however, would not be used to satisfy nonrepatriable victims’ individual claims. Section H provides that “[t]he fund shall be used, not for the compensation of individual victims, but to further the rehabilitation or resettlement of persons in the eligible classes.” Paris Reparations Treaty, Part I, Art. 8, § H. Furthermore, Article 8 preserved the right of nonrepatriable victims to press claims against a future German government. Specifically, section I provides that “[n]othing in this Article shall be considered to prejudice the claims which individual refugees may have against a future German Government, except to the amount of the benefits that such refugees may have received from the sources referred to ... above.” Paris Reparations Treaty, Part I, Art. 8, § I.
Although Article 8 applies only to stateless refugees asserting war related claims against the government, Iwanowa asserts that Article 8, § I is evidence that the Paris Reparations Treaty contemplated that individuals like herself could, and would, assert such claims at a later date. This Court disagrees with Plaintiffs assertion.
As shown in Part II.B.3.a,
infra,
when the terms of a treaty are unambiguous, courts must interpret the treaty’s terms according to their ordinary plain meaning.
See Santovincenzo v. Egan,
284 U.S. 30, 40 , 52 S.Ct. 81 , 76 L.Ed. 151 (1931) (holding that court must construe terms of a treaty “in their ordinary meaning”);
United States v. M.H. Pulaski Co.,
243 U.S. 97, 106 , 37 S.Ct. 346 , 61 L.Ed. 617 (1917) (stating that there “is a strong presumption that the literal meaning [of a treaty] is the true one”);
Brink’s Ltd. v. South African Airways,
93 F.3d 1022, 1027 (2d Cir. 1996) (stating that interpretation of a treaty must begin “with the literal language” and where the language is “ ‘reasonably susceptible of only one interpretation, [the court’s] task of interpretation ends there.”);
Victoria Sales Corp. v. Emery Air Freight, Inc.,
917 F.2d 705, 707 (2d Cir.1990) (stating that when the text is unambiguous, “a court shall not, through
*451
interpretation, alter or amend the treaty.”).
Article 8’s plain language indicates that the Paris Reparations Treaty contemplated that nonrepatriable victims of German action could bring individual claims against the German government in the future. There is no evidence, however, that the signatories to the Paris Reparations Treaty envisioned that persons other than nonrepatriable victims could press individual claims against the German government or its agencies. Since Iwanowa has never alleged that she is a nonrepatriable victim of German action, within the meaning of Article 8, this Court finds that only Article 2.A, precluding individual claims, is relevant to this action.
c.
Halt of Reparations
Tensions between the Western Powers and the U.S.S.R. developed over the issue of reparations. The Soviets felt that they were entitled to seize as much of Germa-ny’s industrial equipment as possible as compensation for the Nazis’ destruction and ravaging of the U.S.S.R. Accordingly, they dismantled and shipped entire factories, motor vehicles and railroad rails from the Soviet Zone to the U.S.S.R.
See
Turner,
supra,
at 13. In addition, they seized a portion of the current production of German factories in the Soviet Zone and shipped it to the U.S.S.R.
See id.
These actions were unacceptable to the Western Powers. First, because the Soviets never shipped food and raw materials to the Western Zones, as agreed in Potsdam, those Zones (which did not produce enough food to feed their population) had to export industrial products to pay for the cost of importing food.
Id.
at 14. Second, the reduction in Germany’s industrial productivity as a result of reparations to the Soviets shifted the cost of feeding the Germans to the Western Powers.
Id.
at 13-14. The Western Powers feared that the extraction of reparations would destroy Germany’s economy, and that they, specifically the U.S., would have had to bear responsibility for providing relief to the Germans.
See
John L. Gaddis,
The United States and the Origins of the Cold War
at 221-22 (1972).
Pursuant to the Potsdam Conference and the Paris Reparations Treaty, the Western Powers were supposed to complete the removal of industrial equipment from their respective Zones by the end of 1947 so that the Inter-Allied Reparation Agency could complete distribution of reparations by June, 1948.
See Resolution by the Inter-Allied Reparation Agency, in II Foreign Relations,
734, 734 (1948). However, taxpayers in the U.S., the U.K. and France began pressuring their governments to reduce costly shipments of food to the Germans in the Western Zones.
Id.
Consequently, in May, 1946, the U.S. halted the dismantling of German industries in its Zone and halted reparation shipments to the Soviet Zone.
See
Turner,
supra,
at 14. Shortly thereafter, the U.K. and France did the same.
See id.
Further, by mid-1947, the Western Powers had suspended the allocation to the Inter-Allied Reparation Agency of all but 250 of the more than 1,600 plants they had estimated would be available for distribution to the Allies.
See
Inter-Allied Reparation Agency,
Report of the Secretary General for the Year 194-8 CIARA 1948 Report”),
at 5. Although the Western Powers later provided the Inter-Allied Reparation Agency with a list of 858 plants that would be available as reparations, by July, 1948, the Western Powers had allocated only 147 of those plants.
Id.
at 5-7;
see generally
Recommendation Concerning the Retention in Germany or Removal as Reparations of the German Industrial Plants Listed by the Humphrey Committee, Mar, 31, 1949, U.S.-Fr.-U.K., 63 Stat. 2901 , T.I.A.S. 2142 (agreeing to dismantle less than ten (10) of the 167 plants reviewed on the ground that the rest of the plants would contribute more to Europe’s economic recovery if they remained in the Western Zones). Furthermore, the plants that the Western Zones allocated to the Inter-Allied Reparation Agency “con
*452
tained a disproportionate amount of machines and equipment of markedly inferior quality or condition.”
LARA 1948 Report.
at 7. Consequently, the Allies never received their respective share of reparations, as negotiated in the Paris Reparations Treaty.
d. Transition Agreement
The German Reich’s military and political collapse in 1945 resulted in state bankruptcy such that the amount of debt precluded complete satisfaction of all liabilities.
See
BVerfG [Federal Constitutional Court], NJW 1996, 2717, at 3 (F.R.G.) [“BVerfG (1996)”]. By 1952, the F.R.G. had not paid its war debts, including the reparations set forth in the Paris Reparations Treaty. Furthermore, as stated above, the Western Powers feared that the payment of reparations would continue to hinder the F.R.G.’s ability to rebuild its economy.
See
Gaddis,
supra,
at 221-22. Consequently, on May 26, 1952, the Western Powers and the F.R.G. entered into the Transition Agreement, whereby the Western Powers agreed to defer payment of their share of reparations until a later date. Specifically, the Transition Agreement provides that:
The problem of reparation shall be settled by the peace treaty between Germa-ny and its former enemies or by earlier agreements concerning this matter. The Three Powers undertake that they will at no time assert any claim for reparation against the current production of the Federal Republic [of Germa-ny].
Ch. 6, Art. 1. Further, in addition to deferring payment of reparations, by agreeing to never seek reparations from the F.R.G.’s current production, the Western Powers gave the F.R.G. the encouragement and freedom it needed to rebuild its industries and stabilize its economy.
e. London Debt Agreement
Many of the signatories to the Paris Reparations Treaty agreed with the Western Powers’ philosophy, as evidenced by the Transition Agreement—that allowing West Germany to rebuild its economy was more important than collecting their respective shares of reparations.
See
LG Bremen, at 8 (stating that the signatories to the London Debt Agreement viewed “the rebuilding and economic consolidation of the [F.R.G. as] urgent—in comparison to compensation and reparations payments.”). Thus, on February 27, 1953, Belgium, Canada, Ceylon, Denmark, France, Greece, Iran, Ireland, Italy, Liechtenstein, Luxembourg, Norway, Pakistan, Spain, Sweden, Switzerland, South Africa, the U.K., the U.S. and Yugoslavia, on the one hand, and the F.R.G., on the other, entered into the London Debt Agreement.
The Preamble to the London Debt Agreement clearly states its intent. It provides in relevant part:
Desiring to remove obstacles to normal economic relations between the [F.R.G.] and other countries and thereby to make a contribution to the devel-. opment of a prosperous community of nations;
Considering that, for about twenty years, payments on German external debts have not, in general, conformed to the contractual terms; that from 1939 to 1945 the existence of a state of war prevented any payments from being made with respect to many of such debts; that since 1945 such payments have been generally suspended; and that the [F.R.G.] desires to put an end to this situation;
Considering that [France, the U.K. and the U.S.] have, since 8th May, 1945, furnished to Germany economic assistance which has substantially contributed to the rebuilding of the German economy, with the effect of facilitating a resumption of payments on the German external debts;
#
% %
#
Considering that the Governments of [France, the U.K. and the U.S.] set up
*453
... the Tripartite Commission on German Debts for the purpose of preparing and for working out, with the Government of the [F.R.G.], with other interested Governments and with representatives of creditor and debtor interests, a plan for the orderly overall settlement of German external debts;
Considering that [the Tripartite] Commission informed the representatives of the Government of the [F.R.G.] that the Governments of [France, the U.K. and the U.S.] were prepared to make important economic concessions with respect to the priority of their claims for post-war economic assistance over all other foreign claims against Germany and German nationals and with respect to the total amount of these claims, on condition that a satisfactory and equitable settlement of Germany’s pre-war externals debts was achieved;
Considering that such a settlement of German external debts could be achieved only by a single overall plan which would take into account the relative positions of the various creditor interests, the nature of various categories of claims and the general situation of the [F.R.G.].
London Debt Agreement, Preamble. As stated by the Preamble, the London Debt Agreement’s main purpose was to enable the F.R.G. to establish normal economic relations with other nations and to settle its external debts.
See id.; see also
OVG [Administrative Court of Appeals] Müenster, NJW 1998, 2302, at 8 (F.R.G.) [“OVG Muenster (1998)”]. In order to allow the F.R.G. to settle its external debts, the London Debt Agreement established a list of the debts that the Agreement would settle, along with.a schedule of payments.
35
The London Debt Agreement’s objective, “to achieve the reestablishment of orderly and normal economic relations with foreign [nations], could only be accomplished” if the F.R.G. could avoid excessive claims for wartime and pre-war debt.
See
BGH
36
(1973), at 16;
see also Stancher,
BGH (1963), at 3. To relieve the F.R.G. from excessive claims, the signatories to the London Debt Agreement agreed to defer the collection of reparations, as defined and scheduled by the Paris Reparations Treaty, until the F.R.G. rebuilt its economy. In effect, the London Debt Agreement established the equivalent of a bankruptcy workout plan designed to defer consideration of certain private Labilities until the bankrupt entity (the F.R.G.) regained its financial health.
See Krakauer I,
LG Bonn (1997), at 23, 28.
Article 5 of the London Debt Agreement sets forth the claims that would be deferred. Article 5(2) titled
Claims Excluded from the Agreement
is particularly relevant to Iwanowa’s claims. Article 5(2) provides:
Consideration of claims arising out of the Second World War by countries which were at war with or were occupied by Germany during that war, and by nationals of such countries, against the Reich [or] agencies of the Reich ... shall be deferred until the final settlement of the problem of reparations.
Thus, Article 5(2) defers consideration of the war related claims of the Allies, or their nationals, against the German government or its agencies.
37
*454
Although Article 5(2) of the London Debt Agreement only addressed claims “against the Reich or agencies of the Reich”, the Supreme Court has interpreted the London Debt Agreement as covering claims against private corporations such as Defendants.
See
BGH (1973), at 9;
Stancher,
BGH (1963), at 11. Specifically, German courts have held that, pursuant to Article 5(2) of the London Debt Agreement, private corporations that utilized unpaid labor during World War II were entitled to the same deferral defense as the German government.
See
BGH (1973), at 9-11;
Stancher,
BGH (1963), at 11 (holding that Article 5(2) of the London Debt Agreement precluded Polish plaintiffs forced labor claims against a German company).
38
f Two-Plus-Four Treaty
The London Debt Agreement precluded adjudication of any war related claims by the Allies, and their nationals, against German defendants “until the final settlement of the problem of reparations.” Art. 5(2). Although the London Debt Agreement was silent as to when this “final settlement” would occur, as stated
supra,
the Transition Agreement specifically dictated that “[t]he problem of reparation shall be settled by the peace treaty between Germany and its former enemies or by earlier agreements concerning this matter.” Ch. 6, Art. 1.
On September 12, 1990, the F.R.G. and the G.D.R. on one side and the U.S., the U.K., France and the U.S.S.R. on the other, entered into the Two-Plus-Four Treaty, effective March 15, 1991. The Two-Plus-Four Treaty reunified West and East Germany and terminated the occupying Allied Powers’ rights and responsibilities over Germany.
See
Two-Plus-Four Treaty, Art. 7.
39
In accordance with the Transition Agreement, the Two-Plus-Four Treaty, a peace treaty between a unified Germany and its former adversaries, settled the problem of reparations.
See
Transition Agreement, Ch. 6, Art. 1;
see also
OVG Müenster (1998), at 12 (stating that the final settlement of the reparations issue within the context of Article 5(2) of the London Debt Agreement was necessarily linked to Germany’s reunification “because only a government which representad] all of Germany [could] assert or waive German counterclaims.”).
In Article 7 of the Two-Plus-Four Treaty, the Allied Powers relinquished the rights and responsibilities concerning Berlin and all of Germany that they expressly had reserved in Potsdam.
See supra
note 38. Although the Two-Plus-Four Treaty does not expressly state that the phase of German reparations has ended, it is clear from Article 7 that the Allied nations can demand no further reparations payments from Germany.
See Krakauer I,
LG Bonn
*455
(1997), at 24-27; LG Bremen (1998), at 11. Further, the Two-Plus-Four Treaty’s silence on the issue of reparations can be explained, in part, by the fact that between 1953 and 1990, the F.R.G. resolved the issue of reparations by way of international agreements with the individual Allied nations.
40
(See
Letter from German Ministerial Director Horst Teltschik to Chancellor Helmut Kohl of 3/15/90, at 2.) Indeed, the F.R.G.’s Federal Government has stated that “45 years after the war, the reparations issue is de facto finished with, owing to the lack of concrete, contractually agreed upon obligations, owing to the renunciations of our former enemies, and owing to already completed efforts of Germany.” (I
d.), see also
OVG Müenster (1998), at 12 (stating that the Two-Plus-Four Treaty must be viewed before the backdrop of (1) the reparations payments which Germany had made during' the first post-war years and (2) the ongoing extensive payments toward the restitution of Nazi wrongs which Germany made to individual persons on the basis of international treaties or contracts with private organizations).
Thus, German courts have held that the signing of the Two-Plus-Four Treaty constitutes the “final settlement of the problem of [World War II] reparations” for purposes of the London Debt Agreement.
See
OVG Müenster (1998), at 9; LG Bremen (1998), at 12;
Krakauer I,
LG Bonn (1997), at 23. Since the Two-Plus-Four Treaty is the final settlement of the reparations issue, the London Debt Agreement no longer bars review of the war related claims of the Allies or their nationals against the German government or German companies.
See
OVG Müenster (1998), at 8-10. As stated by the Administrative Court of Appeals:
[T]he Two Plus Four Treaty causes the lapse of the postponement agreed upon in [the London Debt Agreement] because the issue of reparations in connection with World War II will no longer arise after the conclusion of this Treaty. It is apparent from the preamble that the [T]reaty was concluded with the goal of agreeing upon the definite settlement with regard to Germany. This makes it clear that there will be no additional (peace) treaty settlements concerning legal questions in connection with World War II and the occupation of Germany.
Id.
at 11. The Administrative Court of Appeals concluded that “it was the intent of the signatory parties that there be no future treaty settlement of the reparation issue with regard to Germany; thus, the reparations issue was ‘settled.’ ”
Id.
at 12. In short, the Two-Plus-Four Treaty lifted the London Debt Agreement’s moratorium on consideration of the Allies’, or their nationals’, claims against the German government or German companies.
See
LG Bremen (1998), at 13;
Krakauer I,
LG Bonn (1997), at 24.
3.
London Debt Agreement Contemplates Individual Claims
Defendants argue that the Paris Reparations Treaty permanently subsumed all private claims arising out of World War II, thereby precluding the instant claims. Iwanowa agrees that the intent of the Paris Reparations Treaty was to subsume gov
*456
ernment and individual claims arising out of the war into the Treaty and preclude private litigation.
(See
II Tr. at 41:23-42:5.) She asserts, however, that “the entire structure of the Paris [Reparations] Agreement was axed ... because it was self-defeating, and we moved instead to the London Debt Agreement.” (II Tr. at 42:8-12.) Iwanowa argues:,
If, in fact, the [Paris Reparations Treaty] subsumed [private] claims once and for all, and there were no individual claims left, why was it necessary to say [in the London Debt Agreement] that the individual claims would be postponed?
It was because the people who were drafting the London Debt Agreement knew that this was a new regime, that the old regime, in which these claims would have been subsumed, because there was no room for them, was simply over, and that there was a new regime in which these claims had to be thought about, but they wanted to postpone them to give the German corporations a chance to regain their economic health.
(II Tr. at 48:15-25.) In effect, Iwanowa argues that the London Debt Agreement superseded the Paris Reparations Treaty.
Defendants assert that the London Debt Agreement could not have deferred consideration of individual claims because such claims were subsumed into the governmental claims of the signatories to the Paris Reparations Treaty. Defendants assert that the London Debt Agreement only deferred consideration of the claims of governments. (II Tr. at 51:13-20.) German courts have rejected this argument and held that the London Debt Agreement deferred consideration of private claims against the German government and its agencies, including German companies.
See
BGH (1973); BGH [Supreme Court], VI ZR 186/71, at 3 (1964) (F.R.G.) [“BGH (1964)”];
Stancher,
BGH (1963), at 3;
Krakauer I,
LG Bonn (1997), at 23. Specifically, German courts have held that forced labor claims “are to be viewed as claims arising from World War II within the meaning of [the London Debt Agreement], the review of which must be postponed until the final settlement of the reparations issue.”
Krakauer I,
LG Bonn (1997), at 23-24. Until recently, German courts have denied forced labor claims as “unfounded at the time” or “invalid at the present time”; in each instance, the courts have cited Article 5(2) of the London Debt Agreement.
See
BGH (1973), at 16-17; BGH (1964), at 3;
Stancher,
BGH (1963), at 1;
Krakauer I,
LG Bonn (1997), at 24 (“all complaints by
former
forced laborers, even to the extent that they were directed against the business operations themselves, were dismissed as currently without merit.”).
As shown above, the German Supreme Court has repeatedly held that the London Debt Agreement deferred individual forced labor claims until the final settlement of the reparations issue.
See
BGH (1973), at 16-17; BGH (1964), at 3;
Staucher,
BGH (1963), at 1. However, the German Supreme Court has never held that these deferred claims were cognizable. The German Supreme Court refused to address the merits of forced labor claims and merely held that courts could not consider forced labor claims for the time being.
Id.
As such, the issue before this Court is not whether the London Debt Agreement deferred consideration of private claims — the German Supreme Court has already answered that question in the affirmative—but whether such claims are cognizable versus being permanently barred by the Paris Reparations Treaty. For the reasons discussed below, this Court finds that individual claims are cognizable under the London Debt Agreement; however, only the government of the country of which the forced laborer was a national at the time the forced labor claims arose can pursue such claims. In short, Iwanowa must press her individual claims through the governments of the successor states to the U.S.S.R.
*457
a. Standards for Interpreting Treaties
A treaty is a contract between or among sovereign nations.
See Trans World Airlines, Inc. v. Franklin Mint Corp.,
466 U.S. 248 , 253, 104 S.Ct. 1776 , 80 L.Ed.2d 273 (1984);
Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n,
443 U.S. 658, 675 , 99 S.Ct. 3055 , 61 L.Ed.2d 823 (1979). General rules of construction apply to treaties.
See Trans World Airlines,
466 U.S. at 262 , 104 S.Ct. 1776 (Stevens, J., dissenting) (citing
Ware v. Hylton,
3 U.S. 199 , 3 Dall. 199, 240-41 , 1 L.Ed. 568 (1796)). Treaties, like “other contracts ... are to be read in the light of the conditions and circumstances existing at the time they were entered into, with a view to effecting the objects and purposes of the [nations] thereby contracting.”
Trans World Airlines,
466 U.S. at 262 , 104 S.Ct. 1776 (Stevens, J., dissenting) (quoting
Rocca v. Thompson,
223 U.S. 317, 331-32 , 32 S.Ct. 207 , 56 L.Ed. 453 (1912)). The parties’ intentions dictate the interpretation of a treaty.
See United States v. Choctaw Nation,
179 U.S. 494, 531-33 , 21 S.Ct. 149 , 45 L.Ed. 291 (1900).
As with other contracts, there “is a strong presumption that the literal meaning [of a treaty] is the true one”.
United States v. M.H. Pulaski Co.,
243 U.S. 97, 106 , 37 S.Ct. 346 , 61 L.Ed. 617 (1917). Thus, interpretation of a treaty must begin “with the text of the treaty and the context in which the written words are used.”
Air France v. Saks,
470 U.S. 392, 397 , 105 S.Ct. 1338 , 84 L.Ed.2d 289 (1985) (citing
Maximov v. United States,
373 U.S. 49, 53-54 , 83 S.Ct. 1054 , 10 L.Ed.2d 184 (1963));
see also Brink’s Ltd. v. South African Airways,
93 F.3d 1022, 1027 (2d Cir.1996) (stating that interpretation of a treaty must begin “with the literal language.”). A court interpreting a treaty must construe its terms “in their ordinary meaning as understood” by the international community.
See Santovincenzo v. Egan,
284 U.S. 30, 40 , 52 S.Ct. 81 , 76 L.Ed. 151 (1931);
The Pizarra,
15 U.S. 227 , 2 Wheat. 227, 246 , 4 L.Ed. 226 (1817);
see also Trans World Airlines,
466 U.S. at 262-63 , 104 S.Ct. 1776 (Stevens, J., dissenting). Where the language of a treaty is “ ‘reasonably susceptible of only one interpretation, [the court’s] task of interpretation ends there.”
Brink’s Ltd.,
93 F.3d at 1027 (quoting
Buonocore v. Trans World Airlines,
900 F.2d 8 , 9-10 (2d Cir. 1990));
see also Choctaw Nation,
179 U.S. at 531 , 21 S.Ct. 149 . In such cases, courts must “be governed by the text—solemnly adopted by the governments of many separate nations—whatever conclusions might be drawn from the intricate drafting history”.
Chan v. Korean Air Lines, Ltd.,
490 U.S. 122, 134 , 109 S.Ct. 1676 , 104 L.Ed.2d 113 (1989). Courts must give effect to the treaty’s terms “in the manner and to the extent which the parties have declared, and not otherwise.”
The Amiable Isabella,
19 U.S. 1, 72 , 6 Wheat. 1 , 5 L.Ed. 191 (1821). When the text is unambiguous, “a court shall not, through interpretation, alter or amend the treaty.”
Victoria Sales Corp. v. Emery Air Freight, Inc.,
917 F.2d 705, 707 (2d Cir.1990) (citing
Chan,
490 U.S. at 134 , 109 S.Ct. -1676);
see also The Amiable Isabella,
19 U.S. at 71 , 6 Wheat. 1 (holding that “to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be ... an usurpation of power, and not an exercise of judicial functions.”). When construing a treaty, the court must give the terms their ordinary meaning in context of the treaty, and, unless the terms are unclear, “it should rarely be necessary to rely on extrinsic evidence in order to construe a treaty.”
Xerox Corp. v. United States,
41 F.3d 647, 652 (Fed.Cir.1994).
However, when the text of a treaty is unclear, courts may resort to extrinsic evidence to aid in its interpretation.
See Chan,
490 U.S. at 134 , 109 S.Ct. 1676 (citing
Air France v. Saks,
470 U.S. 392 , 105 S.Ct. 1338 , 84 L.Ed.2d 289 (1985));
see also Choctaw Nation,
179 U.S. at 531 , 21 S.Ct. 149 ;
Brink’s Ltd.,
93 F.3d at 1027 . The courts “may look behind the written words to the history of the treaty, the
*458
negotiations, and the practical construction adopted by the parties.”
Air France,
470 U.S. at 396 , 105 S.Ct. 1338 (citation omitted). Treaties that are susceptible
of
multiple interpretations “shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them.”
De Geofroy v. Riggs,
133 U.S. 258, 271 , 10 S.Ct. 295 , 33 L.Ed. 642 (1890);
see also Air France,
470 U.S. at 396 , 105 S.Ct. 1338 .
b. Interpretation of Article 2.A of the Paris Reparations Treaty
Article 2.A of the Paris Reparations Treaty provides that each signatory country’s respective share of reparations, as calculated and set forth by the Treaty, covers “all its claims and those of its nationals against the former German Government and its Agencies, of a governmental or private nature arising out of the war”. Paris Reparations Treaty, Part I, Art. 2.A. Article 2.A’s plain language is susceptible of only one interpretation— that governmental and individual claims against Germany or its agencies arising out of the war were subsumed in each nation’s share of reparations. Indeed, Plaintiff and Defendants agree that this is the proper interpretation of Article 2.A.
41
“When the parties to a treaty both agree as to the meaning of a treaty provision, and that interpretation follows from the clear treaty language, [the court] must, absent extraordinarily strong contrary evidence, defer to that interpretation.”
Sumitomo Shoji America, Inc. v. Avagliano,
457 U.S. 176, 185 , 102 S.Ct. 2374 , 72 L.Ed.2d 765 (1982). Thus, this Court need not go further in interpreting Article 2.A.
c.
Interpretation of Article 5(2) of the London Debt Agreement
The London Debt Agreement states that “[consideration of claims arising out of the Second World War by countries which were at war with or were occupied by Germany during that war,
and by nationals of such countries,
against the Reich or agencies
of the
Reich ... shall be deferred until the final settlement of the problem of reparations.” London Debt Agreement, Art. 5(2) (emphasis added). It is evident from the text of the London Debt Agreement that nationals of countries which were at war with Germany may have individual claims against Germa-ny and its agencies, separate and apart from those claims asserted by their countries. Defendants argue that Article 5(2) merely defers the claims of governments but does not revive individual claims because the Paris Reparations Treaty subsumed an individual’s claims with her government’s claims.
Defendants’ interpretation of the London Debt Agreement is not plausible. First, Article 5(2)’s deferral of claims brought by Allied nationals would be meaningless unless its drafters believed that such nationals possessed individual claims arising out of World War II. Second, Defendants’ construction of Article 5(2) would render the term “and by nationals of such countries” superfluous. It is a cardinal principle of construction that courts shall interpret contracts, including treaties, so as to give meaning to each provision rather than rendering some provisions, or portions thereof, superfluous.
See Sullivan v. Kidd,
254 U.S. 433, 439 , 41 S.Ct. 158 , 65 L.Ed. 344 (1921) (“all parts of a treaty are to receive a reasonable construction, with a view to giving a fair operation to the whole.”);
De Geofroy,
133 U.S. at 270 , 10 S.Ct. 295 (“It is a rule, in construing treaties as well as laws, to give a sensible meaning to all their provisions, if that be practicable.”);
United States v. State of Washington,
873 F.Supp. 1422, 1429 (W.D.Wash. 1994) (holding that “a treaty should not be interpreted so as to render one part inoperative”),
rev'd in part
*459
on other grounds,
135 F.3d 618 (9th Cir. 1998);
see also Restatement (Second) of Contracts
§ 203(a) (1981) (stating that “an interpretation which gives a reasonable, lawful and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect.”).
Third, the London Debt Agreement does not refer to the claims of nationals only once; it also refers to individual claims in Article 5(3) which provides in relevant part:
Consideration of claims, arising during the Second World War, by countries which were not at-war with or occupied by Germany during that war,
and by nationals of such countries,
against the Reich and agencies of the Reich ... shall be deferred until the settlement of these claims can be considered in conjunction with the settlement of the claims specified in [Article 5(2) ]....
London Debt Agreement, Art. 5(3) (emphasis added). Thus, the only reasonable interpretation of Article 5 of the London Debt Agreement is that its drafters and signatories contemplated that nationals of the neutral countries (Article 5(3)) and of the Allied nations (Article 5(2)) retained [their] individual claims, separate from the claims held by their governments.
d. London Debt Agreement Supersedes Paris Reparations Treaty
The language of the London Debt Agreement is inconsistent with the language of the Paris Reparations Treaty. Article 2.A of the Paris Reparations Treaty subsumed the individual claims of the nationals of the Allied nations into their respective country’s share of reparations. However, Article 5(2) of the London Debt Agreement contemplates that nationals of the Allied nations may have individual claims arising out of World War II, separate from the claims held by their respective nations. Iwanowa reconciles the inconsistency between Article 2.A of the Paris Reparations Treaty and Article 5(2) of the London Debt Agreement by arguing that the drafters of the London Debt Agreement recognized that the old regime providing for reparations to the Allied nations pursuant to the Paris Reparations Treaty and subsuming individual claims, “was simply over, and that there was a new regime in which [individual] claims had to be thought about”. (II Tr. at 48:20-23.) This Court finds that to the extent the Paris Reparations Treaty and the London Debt Agreement conflict, the London Debt Agreement is controlling.
A later statute or treaty must be harmonized with existing treaties to the extent possible.
See Menominee Tribe v. United States,
391 U.S. 404, 413 , 88 S.Ct. 1705 , 20 L.Ed.2d 697 (1968);
Cook v. United States,
288 U.S. 102, 119 , 53 S.Ct. 305 , 77 L.Ed. 641 (1933);
Whitney v. Robertson,
124 U.S. 190, 193 , 8 S.Ct. 456 , 31 L.Ed. 386 (1888);
Committee of United States Citizens Living in Nicaragua v. Reagan,
859 F.2d 929, 936 (D.C.Cir.1988). However, it has long been the rule that when a subsequent inconsistent law cannot be reconciled with a prior treaty, the subsequent law is deemed to abrogate the treaty to the extent of the inconsistency, without specific words of abrogation.
See Breard v. Greene,
523 U.S. 371, 376 , 118 S.Ct. 1352 , 140 L.Ed.2d 529 (1998) (“when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict, renders the treaty null.”);
Reid v. Covert,
354 U.S. 1, 18 , 77 S.Ct. 1222 , 1 L.Ed.2d 1148 (1957);
Whitney,
124 U.S. at 194 , 8 S.Ct. 456 ;
Bell v. Office of Personnel Mgmt.,
169 F.3d 1383 , 1386 (Fed.Cir.1999). By the same token, if there is an irreconcilable conflict between a subsequent treaty and a prior treaty between the same nations, relating to the same subject matter, the new treaty is controlling and must be deemed to abrogate the prior inconsistent treaty or provision therein.
See id.; see also Fotochrome, Inc. v. Copal Co., Ltd.,
517 F.2d 512 , 518 n. 4 (2d Cir.1975) (finding that where two countries that were parties to a
*460
treaty
later become signatories to a multinational convention covering the same subject matter, the convention is controlling).
It is assumed that when signatories to a treaty enact a subsequent treaty relating to the same subject matter covered by the prior treaty, the signatories have the earlier treaty in mind.
See Farley v. Metro-North Commuter R.R.,
865 F.2d 33, 36 (2d Cir.1989) (stating that when “the legislature enacts a provision ... it has in mind previous statutes relating to the same subject matter.”) (quoting 2A N. Singer,
Sutherland’s Statutes and Statutory Construction
§ 51.02 (Sands 4th ed.1984));
Int’l Union of Elec., Radio and Mach. Workers, AFL-CIO-CLC v. Westinghouse Elec. Corp.,
631 F.2d 1094, 1110 (3d Cir.1980) (Van Dusen, J., dissenting) (stating that “in terms of legislative intent, it is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter”);
Damato v. Jack Phelan Chevrolet Geo, Inc.,
927 F.Supp. 283, 292 (N.D.Ill. 1996) (stating same). The Western Powers were actively involved in negotiating and drafting the Paris Reparations Treaty and the London Debt Agreement. Article 2.A of the Paris Reparations Treaty addressed the claims of nationals. Article 5(2) of the London Debt Agreement also addressed the claims of nationals. Hence, both treaties relate to the same subject matter. As stated above, treaties on the same subject must be construed together so that effect is given to every provision unless there is an irreconcilable conflict between the treaties, in which case the latter supersedes the former.
Article 2.A of the Paris Reparations Treaty bars individual claims against Germany or its agencies. Article 5(2) of the London Debt Agreement defers individuals’ claims against Germany or its agencies. Thus, there exists an irreconcilable conflict between Article 2.A. of the Paris Reparations Treaty and Article 5(2) of the London Debt Agreement. As such, the canons of statutory interpretation dictate that Article 5(2) of the London Debt Agreement, as a provision in the later treaty, supersedes Article 2.A of the Paris Reparations Treaty.
42
e. Iwanowa Cannot Press Individual Claims in a Judicial Forum
As further discussed in
infra
Part V, the fact that the London Debt Agreement contemplates individual
claims is not
tantamount to a finding that such claims may be asserted in a judicial forum. Indeed, the London Debt Agreement indicates that all claims arising out of World War II, including individual claims, may only be pursued thrqugh government-to-government negotiations.
43
*461
(1)
Interpretation of Article 5(8) of the London Debt Agreement
As stated above, pursuant to Article 5(3), “[c]onsideration of claims, arising during the Second World War, by countries which were not at war with or occupied by Germany during that war, and by nationals of such countries, against the Reich and agencies of the Reich ... shall be deferred until the settlement of these claims can be considered in conjunction with the settlement of the claims specified in- [Article 5(2) ]”, the claims of the Allies and their nationals. London Debt Agreement, Art. 5(3). However, one exception’ exists: instead of waiting until their claims could be addressed in conjunction with the Allies’, or their nationals’ claims, any neutral country and its nationals could settle their claims “on the basis of, or in connection with agreements which have been signed by the Governments of [France, the U.K. and the U.S.] and the Government of any such [neutral] country.”
Id.
Art. 5(3).
As stated above, there “is a strong presumption that the literal meaning [of a treaty] is the true one”.
M.H. Pulaski Co.,
243 U.S. at 106 , 37 S.Ct. 346 . Further, where the language of a treaty is “ ‘reasonably susceptible’ of only one interpretation”,
Buonocore,
900 F.2d at 9-10, courts must “be governed by the text— solemnly adopted by the governments of many separate nations”.
Chan,
490 U.S. at 134 , 109 S.Ct. 1676 .
Article 5(3)’s text is susceptible of only one interpretation. Pursuant to Article 5(3), the claims of the neutral nations, and their nationals, could only be settled in one of two ways: (1) in conjunction with the settlement of the claims of the Alies and their nationals or (2) in connection with agreements between a neutral nation and the U.S., the U.K. or France. The first method requires an agreement between the German government and the governments of the Alied nations. The second method requires an agreement between the governments of the neutral nations and the governments of the U.S., the U.K. or France. Thus, government-to-government negotiations and agreements are a prerequisite to the settlement of the neutral countries’, and their nationals’, claims.
If nationals of the Alied nations could file individual actions in different courts in different nations, the claims of the neutral countries, and their nationals, could never “be considered in conjunction with the settlement of the claims” of the Alies, and their nationals, as contemplated by Article 5(3). How could the claims of the neutral countries ever “be considered in conjunction with the settlement of the claims” of the Alies if worldwide individual litigation were to take place? The London Debt Agreement contemplates a peace treaty between Germany and its World War II enemies. Once Germany and the Alies entered into such a treaty, if any further claims by the neutral nations and their nationals remained, such claims would be settled in conjunction with the resolution, through the peace treaty, of the claims of the Allied nations. Article 5(3) is simply incompatible with private litigation.
4.
Statute of Limitations
Defendants assert, in the alternative, that even if the Paris Reparations Treaty does not permanently bar Iwanowa’s claims, the applicable statute of limitations for claims alleging violations of customary international law has run.
Pursuant to Federal Rule of Civil Procedure 8(c), an assertion that the applicable statute of limitations bars a claim constitutes an affirmative defense to an action. The Third Circuit, however, has held that a Rule 12(b)(6) dismissal on statute of limitations grounds is warranted when “the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.”
Cito v. Bridgewater Township Police Dep’t,
892 F.2d 23, 25 (3d Cir.1989) (quoting
Bethel v. Jendoco Constr. Corp.,
570 F.2d 1168 , 1174 (3d Cir.1978));
see also Rycoline Prods., Inc.
*462
v. C&W Unlimited,
109 F.3d 883, 886 (3d Cir.1997).
The Alien Tort Claims Act (“ATCA”) does not contain a statute of limitations. When Congress fails to provide a statute of limitations for claims arising under federal statutes, courts should apply the limitations period of the “most closely analogous statute of limitations under state law.”
DelCostello v. International Bhd. of Teamsters,
462 U.S. 151, 152 , 103 S.Ct. 2281 , 76 L.Ed.2d 476 (1983);
Reed v. United Transp. Union,
488 U.S. 319, 323-24 , 109 S.Ct. 621 , 102 L.Ed.2d 665 (1989);
Wilson v. Garcia,
471 U.S. 261, 268 , 105 S.Ct. 1938 , 85 L.Ed.2d 254 (1985);
United Steelworkers of Am., AFL
—CIO—
CLC v. Crown Cork & Seal Co., Inc.,
32 F.3d 53, 56 (3d Cir.1994),
aff'd sub nom. North Star Steel Co. v. Thomas,
515 U.S. 29 , 115 S.Ct. 1927 , 132 L.Ed.2d 27 (1995). However, there exists a narrow exception to this rule when another federal statute or rule “clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make the [federal statute] a significantly more appropriate vehicle for interstitial lawmaking.”
Reed,
488 U.S. at 324 , 109 S.Ct. 621 (quoting
DelCostello,
462 U.S. at 172 , 103 S.Ct. 2281 );
see also North Star,
515 U.S. at 34 , 115 S.Ct. 1927 ;
Agency Holding Corp. v. Malley-Duff & Assocs., Inc.,
483 U.S. 143, 150 , 107 S.Ct. 2759 , 97 L.Ed.2d 121 (1987);
Forti v. Suarez-Mason,
672 F.Supp. 1531, 1547 (N.D.Cal.1987).
The Third Circuit has stated, and the Supreme Court has affirmed, that courts must “take seriously [the Supreme Court’s admonition] that analogous state statutes of limitations are to be used unless they frustrate or significantly interfere with federal policies.”
United Steelworkers,
32 F.3d at 57 (emphasis in original) (quoting
Reed,
488 U.S. at 327 , 109 S.Ct. 621 ).
To determine whether to apply a federal or state limitations period to a claim under the ATCA, “the Court must first identify the closest analogies under both federal and state law.”
Forti
672 F.Supp. at 1547 . “[A]ctionable claims under the [ATCA] involve harm to the person that is universally recognized” by the international community as violating the law of nations.
See id., see also supra
Part II.A.2.a. As shown
supra,
forced labor violates international law and is thus, an actionable tort under the ATCA. Iwanowa also seeks damages for the inhuman conditions Ford Werke inflicted upon her.
44
The most closely analogous state law (under Michigan, Delaware or New Jersey law) is for the recovery of damages for personal injuries.
The closest analogy under federal law is the Torture Victim Protection Act of 1991 (“TVPA”).
See Xuncax,
886 F.Supp. at 191 (holding that the TVPA is the most analogous statute to the ATCA). Since the enactment of the TVPA, courts addressing claims under the ATCA have applied the TVPA limitations period.
See Cabiri v. Assasie-Gyimah,
921 F.Supp. 1189, 1195-96 (S.D.N.Y.1996);
Xuncax,
886 F.Supp. at 192-93 . This Court finds that the TVPA, which was enacted as a statutory note to the ATCA, “clearly provides a closer analogy than the available state statutes.”
United Steelworkers,
32 F.3d at 57 . Thus, this Court shall apply the TVPA limitations period to Iwanowa’s claims under international law.
45
The TVPA explicitly provides a ten year limitations period.
See
28 U.S.C. § 1350 , note § 2(c). World War II ended in 1945.
*463
Iwanowa filed the instant action on March, 8, 1998, almost fifty-three (53) years after the end of the war. Iwanowa claims that the Paris Reparations Treaty, certain edicts, the doctrine of equitable tolling and the London Debt Agreement tolled the TVPA’s ten year statute of limitations until November, 1997. Defendants concede that the edicts tolled the statute of limitations until 1949. However, they assert that the statute of limitations has been running since 1949 because neither the Paris Reparations Treaty nor the London Debt Agreement toll the limitations period on private claims.
46
This Court shall address these arguments separately.
a. Tolling of the Statute of Limitations (1945-1953)
The Paris Reparations Treaty, along with the edicts that the Nazis and the Western Powers enacted, tolled the statute of limitations on claims against German defendants from the end of the war until the operative date of the London Debt Agreement, February 27,1953.
On September 27, 1944, the Nazi government issued an emergency measure tolling the statutes of limitations on all civil claims until December 31, 1945.
See Edict Regarding the Effect of Total War on the Civil Law
§ 32 (Sept. 27, 1944)
(“Second Edict").
The Second Edict remained in effect after Germany’s surrender in May, 1945. After the expiration of the Second Edict on December 31, 1945, the Allied Powers regulated the extension or tolling of limitations periods independently in their respective zones of occupation. The British Zone, where Ford Werke’s Cologne’s plant was located, issued two edicts tolling all statutes of limitations through December 31, 1948.
See Regulation of the Tolling of the Statutes of Limitations and Similar Time Limits in the Civil Law and the Administration of Civil Justice
§ 1 (Dec. 16, 1946);
Regulation Concerning the Extension of the Tolling of the Statutes of Limitations and Similar Time Limits in the Civil Law and the Administration of Civil Justice,
Art. I (Dec. 17, 1947).
In addition to these edicts, German courts have held, and Defendants concede, that the statute of limitations for forced labor claims was tolled from the end of the war until the establishment of the F.R.G. in 1949.
See
LG Bremen (1998), at 12; (I TV. at 14:14-17.) Defendants assert, however, that any tolling mechanisms ended in 1949.
Iwanowa claims that the Paris Reparations Treaty tolled the statute of limitations from 1946, the date of the Paris Reparations Treaty, until 1953, the effective date of the London Debt Agreement. As stated
supra,
Article 2.A of the Paris Reparations Treaty barred any individual claims against the German government and its Agencies,
47
including Defendants, because such claims were subsumed into the governmental claims of the signatories to the Treaty. As long as Article 2.A of the Paris Reparations Treaty was in effect, former forced laborers could not press individual claims arising out of World War II against the German government or German companies. As shown
supra,
Article 2.A. of the Paris Reparations Treaty was in effect until Article 5(2) of the London Debt Agreement superseded it in 1953. Iwanowa argues that the statute of limitations was tolled during the period when the Paris Reparations Treaty barred individual claims against Ford Werke. This Court agrees.
*464
Pursuant to German Civil Code
(“Burg-erliches Gesetzbuch”
or “BGB”) section 202(1), statutes of limitations are tolled during the period of time in which the law precludes a plaintiff from asserting a claim. Specifically, section 202(1) provides that:
Prescription is suspended for so long as the performance is deferred or the person bound is temporarily entitled on any other ground to refuse to make performance.
BGB § 202(1) (Simon L. Goren, transí., 1994).
Until the London Debt Agreement superseded Article 2.A of the Paris Reparations Treaty, the law precluded Iwanowa from asserting claims arising out of World War II against German companies. Consequently, under BGB section 202(1), the statute of limitations on claims against German defendants was tolled until German law permitted the assertion of war related claims against German companies. As soon as the London Debt Agreement went into effect, the Paris Reparations Treaty’s bar on forced labor claims ended, thereby lifting its tolling mechanism. However, as shown
infra,
the London Debt Agreement’s deferral of such claims tolled the statute of limitations from 1953 to 1991.
b. Tolling of the Statute of Limitations (1953-1991)
As shown in Part II.B.2.e, Article 5(2) of the London Debt Agreement postponed consideration of claims arising out of World War II against Germany and German companies until the final settlement of the problem of reparations. Indeed, the London Debt Agreement deferred consideration of forced labor claims asserted by any foreign nationals, even one whose country was not a signatory to the London Debt Agreement.
See Staucher,
BGH (1963), at 3;
see also Krakauer I,
LG Bonn (1997), at 23. Hence, pursuant to BGB section 202(1), it appears that the London Debt Agreement tolled the statute of limitations on claims arising out of World War II until the final settlement on the issue of reparations.
Defendants argue that the London Debt Agreement does not apply to individual claims and thus cannot toll the limitations period of the instant claims. As shown
supra,
this argument cannot stand in light of Article 5(2)’s plain language and German Supreme Court decisions holding that the London Debt Agreement defers consideration of individual forced labor claims.
See
London Debt Agreement, Art. 5(2); BGH (1973), at 9;
Staucher,
BGH 1963, at 11;
see also supra
Part II.B.2.e.
In the alternative, Defendants argue that the London Debt Agreement’s moratorium only applied to claims by foreign nationals against the German government or German companies brought under German law, but did not toll claims under international law! This Court disagrees. The purpose of the London Debt Agreement’s deferral provision was to give the F.R.G., and its industries, breathing space to rebuild and to restore its financial health. Allowing any claims against Ford Werke, regardless of whether they asserted violations of German law or customary international law, would have defeated the objectives of the London Debt Agreement. It would have been absurd for the London Debt Agreement to shield German industry from claims under German law while simultaneously allowing it to be sued for the same acts under customary international law. Hence, this Court finds that the London Debt Agreement deferred all claims by non-German nationals, arising out of World War II, against German corporations acting under color of Nazi law, regardless of whether the claims asserted violations of international law or German law.
See
London Debt Agreement, Art. 5(2).
As shown
supra
in Part II.B.2.Í, the Two-Plus-Four Treaty is the final settlement contemplated by the London Debt Agreement. Thus, this Court finds that the London Debt Agreement tolled the
*465
statute of limitations on the Allies’, and their nationals’, war-related claims against German companies until the Two-Plus-Four Treaty’s operative date of March 15, 1991.
Ford Werke is a German corporation. As stated
supra,
German courts have held that corporations utilizing forced laborers during World War II were agents of the German government.
See
BGH (1973), at 9-10;
Stancher,
BGH (1963), at 4-5;
Krakauer I,
LG Bonn (1997), at 15. Hence, the London Debt Agreement tolled the statute of limitations on the claims against Ford Werke until March 15, 1991, the effective date of the Two-Plus-Four Treaty.
See Krakauer I,
LG Bonn (1997), at 24 (finding that the London Debt Agreement deferred claims arising out of World War II until March 15, 1991); LG Bremen (1998), at 11 (same).
c.
Tolling of the Statute of Limitations (1991-1997)
As stated in Part II.B.2.f, the Two-Plus-Four Treaty does not explicitly mention reparations. Iwanowa initially argued that the London Debt Agreement tolled the limitations period, not until the Two-Plus-Four Treaty’s operative date, but rather until a German court announced that the Two-Plus-Four Treaty constituted the final resolution of the reparations issue. At oral argument, Iwanowa’s counsel conceded that statutes of limitations generally begin to run on the' effective date of a treaty.
(See
I Tr. at 37:17-21.) However, Iwanowa’s counsel asserted that “based on confusion”, the limitations period should be tolled between March 15, 1991 (the operative date of the Two-Plus-Four Treaty) and November 5, 1997, when the
Krakauer I
Court explicitly held that the Two-Plus-Four Treaty lifted the London Debt Agreement’s moratorium on forced labor claims.
(Id.
at 37:20-21.) Iwanowa’s counsel argues that Iwanowa could not have reasonably known that the London Debt Agreement no longer barred review of the instant claims until publication of the
Krakauer I
opinion on November 5, 1997. This argument is not persuasive.
A statute of limitations begins to run on the effective date of the relevant treaty, not on the subsequent date of judicial interpretations of the treaty.
See Alliance of Descendants of Texas Land Grants v. United States,
37 F.3d 1478, 1482-83 (Fed. Cir.1994). Indeed, German courts have expressly held that the London Debt Agreement postponed forced labor claims until March 15, 1991, the operative date of the Two-Plus-Four Treaty.
See
LG Bremen (1998), at 13;
Krakauer I,
LG Bonn (1998), at 46;
see also
OVG Müenster (1998), at 11.
Furthermore, Iwanowa’s argument that she did not realize that the Two-Plus-Four Treaty lifted the London Debt Agreement’s moratorium- on claims arising out of the War until the publication of the
Krakatier I
opinion lacks merit.
48
The German Federal Register published notice of the ratification of the Two-Plus-Four Treaty on March 15, 1991. The
Krakauer I
Court noted that the media and the press discussed the Two-Plus-Four Treaty extensively.
See Krakauer I,
LG Bonn (1997), at 30. Indeed, the plaintiffs in
Krakauer I
and in LG Bremen (1998) filed their claims within twelve months and four months, respectively, of the Two-Plus-Four Treaty’s operative date. Hence, it appears that those plaintiffs realized that the Two-Plus-Four Treaty lifted the London Debt Agreement’s moratorium on forced labor claims before a court interpreted it as such. Consequently, Iwa-nowa’s argument that she did not receive adequate notice that the London Debt Agreement no longer barred consideration of forced labor claims until publication of the
Krakauer I
opinion sounds hollow.
*466
Iwanowa has not cited any case law showing that the statute of limitations should be tolled until the
Krakauer I
Court expressly interpreted the Two-Plus-Four Treaty as lifting the London Debt Agreement’s moratorium. Thus, this Court concludes that the statute of limitations on Iwanowa’s claims began to run on the effective date of the Two-Plus-Four Treaty,
not when
the
Krakauer I
Court first interpreted such Treaty.
d. Claims Against Ford Werke
Iwanowa filed the instant action on March 5, 1998. The Paris Reparations Treaty tolled the statute of limitations on war related claims against German companies, such as Ford Werke, from 1946 until 1953, when it was replaced by the London Debt Agreement. The London Debt Agreement’s moratorium tolled the limitations period on such claims until March 15, 1991, the operative date of the Two-Plus-Four Treaty. As noted in supra Part II.B.4, the limitations period for claims under the ATCA is ten years. As such, the statute of limitations on Iwanowa’s claims under international law would expire on March 15, 2001. Iwanowa filed the instant claims on March 5, 1998; thus, her claims under the ATCA against Ford Werke are timely.
49
e. Statute of Limitations is Not Tolled on Claims Against Ford
Iwanowa has asserted claims under international law against both Ford Werke and Ford. The Complaint alleges that “[p]rior to November 5, 1997, plaintiffs’ efforts to seek compensation for forced labor during the Second World War from private corporations were barred under German law.” (Comply 37.) The London Debt Agreement deferred consideration of claims arising out of World War II against the German government and German companies.
See
London Debt Agreement, Art. 5(2); BHG (1973), at 9-10;
Staucher,
BGH (1963), at 11. Ford is not a German company, therefore, it is not covered by the London Debt Agreement. However, Iwanowa argues that the London Debt Agreement tolled her claims against Ford because Ford’s liability is partially derivative of Ford Werke’s liability, thus, any suit against Ford during the period when claims against Ford Werke were precluded, would have been vulnerable to dismissal for (1) failure to join a necessary party, pursuant to Federal Rule of Civil Procedure 19; or (2) interference with the London Debt Agreement’s deferral scheme. Specifically, Iwanowa argues that the London Debt Agreement tolls claims against Ford because Ford would have passed the cost incurred in defending against forced labor claims and any award recovered by forced laborers, onto Ford Werke, thereby defeating the purpose of the London Debt Agreement’s deferral scheme. This reasoning is not persuasive.
Iwanowa has not attempted to explain how claims against Ford would have been vulnerable to dismissal, pursuant to Federal Rule of Civil Procedure 19. Regardless, all lawsuits are subject to potential defenses and are thus, vulnerable to dismissal for countless reasons. A plaintiff cannot delay filing her claims in derogation of the applicable statute of limitations merely because she believes a defendant has valid defenses
*467
or her suit is subject to dismissal.
See Chakonas v. City of Chicago,
42 F.3d 1132, 1135-36 (7th Cir.1994) (refusing to extend statute of limitations simply because plaintiff was not certain his claims would have succeeded if he had brought them earlier). Furthermore, the Complaint
does not
allege that the Paris Reparations Treaty or the London Debt Agreement precluded Iwanowa from asserting claims under international law against Ford, a U.S. corporation, in a U.S. court. The Paris Reparations Treaty covers war related claims “against the former German Government and its Agencies”. Paris Reparations Treaty, Part I, Art. 2.A. The London Debt Agreement defers consideration of claims “against the Reich and agencies of the Reich”. London Debt Agreement, Art. 5(2). Although German courts have held that German corporations utilizing forced labor acted as agents of the Reich, no court has ever held, and the Complaint does not allege, that U.S. corporations (such as Ford) were agents of the German government. Thus, this Court concludes that neither the Paris Reparations Treaty nor the London Debt Agreement prevented Iwanowa from bringing forced labor claims against Ford, a U.S. corporation, under the ATCA, a U.S. statute.
Furthermore, Iwanowa’s argument that Ford would have passed the cost incurred in defending against forced labor claims onto Ford Werke must also fail. Iwa-nowa’s assertion that as the parent company, Ford would pass its losses onto Ford Werke, thereby defeating the purpose of the London Debt Agreement’s deferral scheme, is speculative at best. There is nothing before this Court enunciating what Ford’s accounting practices are or how and to what extent litigation costs or losses incurred would be passed onto Ford Werke. Consequently, neither the Paris Reparations Treaty nor the London Debt Agreement tolled the limitations periods of the claims against Ford under international law.
50
(1)
Equitable Tolling
Iwanowa argues that even if the London Debt Agreement does not toll the limitations period of her claims against Ford, the statute of limitations was equitably tolled by Ford’s affirmative misstatements denying that it gained any economic advantages from Ford Werke’s use of unpaid, forced labor.
Equitable tolling stops the statute of limitations from running where the claim’s accrual date has already passed.
See Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380, 1387 (3d Cir.1994). Equitable tolling may be appropriate,
inter alia,
where the defendant has actively misled the plaintiff.
See id.; see also United States v. Midgley,
142 F.3d 174, 179 (3d Cir.1998);
School Dist. of City of Allentown v. Marshall,
657 F.2d 16, 19-20 (3d Cir.1981). To avoid dismissal, a complaint asserting equitable tolling must contain particularized allegations that the defendant “actively misled” plaintiff.
See 287 Corporate Ctr. Assocs. v. Township of Bridgewater,
101 F.3d 320, 325 (3d Cir. 1996);
Oshiver,
38 F.3d at 1387 . In the instant case, the Complaint is devoid of any allegations of misrepresentation and concealment.
Iwanowa makes vague claims of misrepresentation by Ford for the first time in her brief in opposition to Defendants’ motions to dismiss. (Pl.’s Opp’n Br. at 41.) She alleges that in 1998, a Ford spokesperson issued a statement denying
*468
that Ford received significant economic benefits from Ford Werke

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2375384. Public record. Not legal advice.