Opposition Brief — Ma v. Kajima Corp.
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Nos. 02-1773, 02-1778 | arin 4
IN THE ——_-
EC OF THE C| R
Supreme Court of the United State ce
Do GEUN OH, ET AL.,
Petitioners.
VS.
MITSUI & Co., LTD., ET AL.,
Respondents.
ZHENHUAN MA, ET AL.,
Petitioners,
VS.
KAJIMA CORPORATION, ET AL..,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
RESPONDENTS’
BRIEF IN OPPOSITION
Margaret K. Pfeiffer Arne D. Wagner
Joseph J. Reilly Counsel of Record
SULLIVAN & CROMWELL LLP Kathieen V. Fisher
1701 Pennsylvania Ave., NW John A. Kelley
Washington, DC 20006 MORRISON & FOERSTER LLP
(202) 956-7500 425 Market Street
Counsel for Respondents San Francisco, CA 94105
Nippon Steel U.S.A., Inc. (415) 268-7000
and Nippon Steel Corp. Counsel for Respondents
Mitsubishi Corp. and
Mitsubishi International Corp.
August 4, 2003
(Additional counsel listed within)
Barbara L. Croutch
PILLSBURY WINTHROP, LLP
725 S. Figueroa St., Suite 2800
Los Angeles, CA 90017
(213) 488-7100
Counsel for Respondents
Mitsubishi Heavy Industries
America, Inc. and Mitsubishi
Heavy Industries, Ltd.
Sara D. Schotland
CLEARY, GOTTLIEB, STEEN &
HAMILTON
2000 Pennsylvania Ave., NW
Washington, D.C. 20006
(202) 974-1500
Counsel for Respondent
Showa Denko America, Inc.
Bruce E. H. Johnson
DAVIS WRIGHT TREMAINE LLP
1501 Fourth Avenue
2600 Century Square
Seattle, WA 98101
(206) 662-3150
Counsel for Respondents
Mitsubishi Heavy Industries,
Lid. and Mitsubishi Heavy
Industries America, Inc. (in
Choe)
A. Victor Antola
Daniel L. Martens
LATHAM & WATKINS
633 West Fifth Street
Suite 400
Los Angeles, CA 90071-2007
(213) 485-1234
Counsel for Respondents
Kajima USA, Inc., Kajima
International, Inc., Kajima
Engineering & Construction,
Inc., Kajima Development
Corp., and Kajima
Construction Services, Inc.
John H. Beisner
John F. Niblock
Pammela Quinn
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006-4001
(202) 383-5300
Counsel for Respondents
Mitsubishi Materials Corp. and
Mitsubishi Materials U.S.A.
Corp.
Arthur W. Harrigan
Garth Wojtanowicz
DANIELSON, HARRIGAN &
TOLLEFSON, LLP
999 Third Avenue, Suite 4400
Seattle, WA 98104
(206) 623-1700
Counsel for Respondents
Mitsubishi Heavy Industries,
Lid. and Mitsubishi Heavy
Industries America, Inc. (in
Choe)
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Nathan Lane III
Joseph A. Meckes
SQUIRE, SANDERS.& DEMPSEY,
LLP
One Maritime Plaza, Suite 300
San Francisco, CA 94111
(415) 954-0200
Counsel for Respondents
Paceco Corp. and Mitsui
Engineering & Shipbuilding
Co., Lid
Thomas D. Yannucci, P.C.
Christopher Landau
Brant W. Bishop
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005
(202) 879-5000
Counsel for Respondents
Sumitomo Heavy Industries
(U.S.A.) and Sumitomo Heavy
Industries, Ltd.
Lloyd W. Aubry, Jr.
Kathryn M. Davis
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105
(415) 268-7000
Counsel for Respondents
Ishikawajima-Harima Heavy
Industries Co., Ltd. and IHI,
Inc.
Stephen V. Bomse
Neil A.F. Popovic
HELLER EHRMAN WHITE &
MCAULIFFE LLP
333 Bush Street
San Francisco, CA 94104-2878
(415) 772-6000
Counsel for Respondent
Showa Denko America, Inc.
David M. Balabanian
Christopher B. Hockett
Thomas S. Hixson
BINGHAM MCCUTCHEN LLP
3 Embarcadero Center
18th Floor
San Francisco, CA 94111
(415) 393-2000
Counsel for Respondents
Mitsui & Co., Ltd. and Mitsui &
Co. (U.S.A.), Inc.
Matthew E. Digby
Heidi A. Leider
BINGHAM MCCUTCHEN LLP
355 S. Grand Avenue
Suite 4400
Los Angeles, CA 90071
(213) 680-6400
Counsel for Respondents
Mitsui Mining Co., Ltd. and
Mitsui Mining U.S.A., Inc.
Question Presented
Whether the Ninth Circuit correctly held that a 1999
California statute purporting to create a private nght of
action on behalf of “Second World War forced labor
victim[s]” is preempted under the foreign affairs doctrine as
recently explicated by this Court’s decision in American
Insurance Association v. Garamendi, where the United
States’ foreign policy— exemplified in its drafting,
negotiation and ratification of the multilateral Treaty of
Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169 — has already
resolved the war and all war-related claims as a matter of
United States law, including consigning such claims by
Korean and Chinese nationals to diplomatic resolution.
5 Mie
Rule 29.6 Corporate Disclosure Statement
Ishikawajima-Harima Heavy Industries Co., Ltd. is a
Japanese public company and is listed on the Tokyo Stock
Exchange. Ishikawajima-Harima Heavy Industries Co., Ltd.
has no parent company, and no publicly held company owns
10% or more of its stock. IHI, Inc. is a wholly owned
subsidiary of Ishikawajima-Harima Heavy Industries Co.,
Ltd.
Kajima Construction Services, Inc. is a wholly owned
subsidiary of Kajima International, Inc., which is a wholly
owned subsidiary of Kajima USA, Inc., which is a wholly
owned subsidiary of Kajima Corporation, a Japanese
corporation. Kajima Corporation has no parent company,
and no publicly held company owns 10% or more of its
stock.
Kajima Development Corporation is a wholly owned
subsidiary of Kajima Real Estate Development, Inc., which
is a wholly owned subsidiary of Kajima USA, Inc., which is
a wholly owned subsidiary of Kajima Corporation.
Kajima Engineering and Construction, Inc. is a wholly
owned subsidiary of Kajima Corporation.
Kajima International, Inc. is a wholly owned subsidiary of
Kajima USA, Inc., which is a wholly owned subsidiary of
Kajima Corporation.
Kajima USA, Inc. is a wholly owned subsidiary of
Kajima Corporation.
Mitsubishi Corporation is a public company listed on the
Tokyo Stock Exchange. No publicly held company owns
10% or more of the outstanding stock of Mitsubishi
Corporation. Mitsubishi International Corporation is a
wholly owned subsidiary of Mitsubishi Corporation.
Mitsubishi Heavy Industries, Ltd. is a Japanese public
company and is listed on the Tokyo Stock Exchange. No
El
- ill -
publicly held company owns 10% or more of its stock.
Mitsubishi Heavy Industries America, Inc. is a wholly
owned subsidiary of Mitsubishi Heavy Industries, Ltd.
Mitsubishi Materials Corporation has no parent
corporation, and no publicly held company owns 10% or
more of its stock.
Mitsubishi Materials U.S.A. Corporation’s parent
corporation is Mitsubishi Materials Corporation, and no
other publicly held company owns 10% or more of
Mitsubishi Material U.S.A. Corporation’s stock.
Mitsui & Co., Ltd. is a public company listed on the
Tokyo Stock Exchange. No publicly held company owns
10% or more of the outstanding stock of Mitsui & Co.,
Ltd. Mitsui & Co. (U.S.A.), Inc. is a wholly owned
subsidiary of Mitsui & Co., Ltd.
Mitsui Engineering & Shipbuilding Co., Ltd. has no
parent corporation, and no publicly traded company owns
10% or more of its stock.
Mitsui Mining Co., Ltd. is a Japanese public company and
is listed on the Tokyo Stock Exchange. No publicly held
company owns 10% or more of its stock. Mitsui Mining
U.S.A., Inc. is a wholly owned subsidiary of Mitsui Mining
Co., Ltd.
Nippon Steel Corporation is a Japanese public company,
listed on the Tokyo Stock Exchange. No publicly held
company owns 10% or more of its stock. Nippon Steel
U.S.A., Inc. is a wholly owned subsidiary of Nippon Steel
Corporation.
Paceco Corp.’s parent corporation is Mitsui Engineering
& Shipbuilding Co., Ltd., and Mitsui & Co., Ltd. owns over
10% of its stock.
Showa Denko America, Inc. is a wholly owned subsidiary
of Showa Denko K.K. Showa Denko K.K. is a Japanese
public company, listed on the Tokyo Stock Exchange. No
-iv-
publicly held company owns more than 10% or more of
Showa Denko K.K.’s stock.
Sumitomo Heavy Industries, Ltd. is a Japanese public
company and is listed on the Tokyo Stock Exchange. No
publicly held company owns 10% or more of its stock.
Sumitomo Heavy Industries (U.S.A.), Inc. is a wholly owned
subsidiary of Sumitomo Heavy Industries, Ltd.
-V-
TABLE OF CONTENTS
Page
I Be acia nai tctactaneeinncnncisaetenleiaiiseScosh el cebsigsiunosiscdavetens 3
Pertinent Constitutional Provisions, Treaties
ee scceuisnadaaiaashcon 3
gL EI PID SECIS EOL ne OR LIT ORES 5
A. IIIT sean sincas ehcianecplencrnadcncemnecesnominiied 6
B. Petitioners’ Allegations...........c....sssccssesesseseee 9
ed Proceedings in the District Court................ 10
D. The Court of Appeals Decision.................... 1]
PIE sieinschobiins Saatiasadsacvandnnateassaotiancreenimanetiainissnenststbins 13
I. Because the Ninth Circuit’s Decision Accords
with Garamendi, the Petitions Should Be
IERIE AR So OR oe ae a OR 13
A. As Applied to Respondents, Section
354.6 Is Preempted Under the “Field” _
Theory Described in Garamendi................. 14
1. This Case Presents Precisely
the Circumstances that Make
Field Preemption “the
[A‘ppropriate [D]}octrine”
URGer GPCR ......0250.00000.sesesscee00 14
2. Field Preemption Is
Particularly Appropriate
Where, as Here, the Federal
Government Has Exercised Its
ST I oarectacicccsvesissrtescetnncins 16
B. Particularly As Applied to
Respondents, Section 354.6 Is Equally
Preempted Under the “Conflict”
Theory Described in Garamendi................. 17
a
TABLE OF CONTENTS
(continued)
Page
l. The State’s Interest Is
IIT saisalsilssennincsirensecsnvebiensienbansiies 18
_ The Conflict with the Allied
PET Wintiuiciinsinedveniinierdbateimennsonees 18
a The Overwhelming Federal
Foreign Policy Interest.................... 22
C. Garamendi Expressly Rejected Many
of Petitioners’ Specific Attacks on the
III scicccsc sid cchistaliccinaniiaceniiscldnsisaboninsion 23
II. Alternative Grounds for Dismissal Make
Grant of Certiorari Inappropriate .................. eee 25
A. Applying California Law Would
Ae Si i I dchtcsetcsdecsnmitransnstenconece 26
i. Due Process Requires ~-
Significant Contacts Between
California and the Conduct It
IE scntiierecescsimetepillipnaincmrinnnrses 26
2. The Presence Today of Some
Petitioners and Respondents in
California Does Not Satisfy
Se i ikthiicethaitindeiesntssnibiiiinies 27
3. Calling the Statute
“Procedural” Does Not Cure
the Due Process Violation............... 28
B. Petitioners’ Claims Are Precluded by
Japan’s Treaties with Korea and China.......30
tel Petitioners’ Claims Are Nonjusticiable....... 30
Conclusion ....
RTE AA i le OTP ECTS
-Vii-
TABLE OF AUTHORITIES
Page
Cases
Allstate Ins. Co. v. Hague,
hs ee ei ieteoninrecsocsancdpalinniniidsesaiaemnteai 26, 27
Am. Ins. Ass’n v. Garamendi,
ar a eek A Pe ED seit tna rerciictncemnviinliadaiiaenicen passim
Baker v. Carr,
es Be a i iia anise cenctinceicigaiiesatascilaatnabadeusuaiad 30
Boyle v. United Techs. Corp.,
OE Re ED iteieiistnaitannetacnsiaicninntiancinientinians 22, 23
Burger-Fischer v. Degussa AG,
65 F. Sapp. 2d 245 C.N.5.. 1999) .ccsscssesvoccesnscessecresseveees 31
Crosby v. Nat'l Foreign Trade Council,
FIO se FE CI iicikesenineinbicninn
Deutsch v. Turner Corp.,
No. CV 00-4405 SVW (AJ WX),
2000 WL 33957691,
eae ee. |)
English v. Gen. Elec. Co.,
Be GAA FE Cer re iviciirsnnistnenrineinnnneien
Franchise Tax Bd. v. Hyatt,
vie ety: ree
Gerling Global Reins. Corp. v. Low,
240 F.3d 739 (9th Cir. 2001).............024
et eto 14n.13
Laaiinaiets fas ae
ee
- Vili -
TABLE OF AUTHORITIES
(continued)
Page
Gerling Global Reins. Corp. v. Nelson,
123 F. Supp. 2d 1298
(N.D. Fla. 2000), aff'd, 267 F.3d
Se BO Be Ric teinsicscioineninccbsieactincislicenamiaaniiaanes 28 n.19
Helfand v. Gerson,
PS Fe Be Ae. TO Mitincnsstinsisanisannitenmnmecsaalintin 28
Joo v. Japan,
Sak C, OR Te UB imine 20
Landgraf v. USI Film Prods.,
F8t Gah CO inition 29
Phillips Petroleum Co. v. Shutts,
Ee ls. FPF CUP ccinntsincaininisineiecnicaaion 18, 26-27, 28
Stewart v. Kahn,
Fe is OR PE civiviecinerctenctitsinriinniaaanes 15
Stogner v. California, .
eo i, Ok Pe CE einihisncicindeinnaseinnvinenaieaaasaaainen 29
Sumitomo Shoji Am., Inc. v. Avagliano,
hE Ee, : | en N Te 19 n.16
Taiheiyo Cement Co. v. Superior Court (Jeong), 2
Fe Cia Cee BNE sictsicininseinencienmeaonemeals 29 n.20
Ware v. Hylton,
FF Fk Fe OG Fi virtisiskncdiaeninertiaeneneineaas 15,19
- 1X
TABLE OF AUTHORITIES.
(continued)
Page
Zschernig v. Miller,
Se a aciiticecnncssennseosessvecerasccocees 12, 13, 16
Constitutional Provisions, Statutes, and Rules
U.S. Const. art. I,
EEE SR 4
EL LIE 4,17
U.S. Const. art II,
Ne ne es cstncetienenrvcersecevecccceceses 3,17
Cal. Civ. Proc. Code
et iicrtdenerntensscesrecescccececee passim
EET 23, 24
ee ptenscrinctencecrnsecetorvoccccccssetececee 29
Cal. Ins. Code §§ 13800-13807 .................scssssssssseesseee passim
TEE ESE 29 n.20
Treaties
Agreement on the Settlement of
Problems Concerning Property and
Claims and on Economic
Cooperation, Japan-Republic of
Korea, June 22, 1965,
Ee 4,6, 9,21
Joint Communiqué of the Government
of Japan and the Government of the
People’s Republic of China,
a eae ivinnerrwerencecess 4, 6, 9, 21, 22
- x -
TABLE OF AUTHORITIES
(continued)
Page
Treaty of Peace and Friendship
Between Japan and the People’s
Republic of China, Aug. 18, 1978 ............... 5, 6, 9.21, a2
Treaty of Peace Between China and
Japan, Apr. 28, 1952, 38 U.N.T.S.
RR LINC NL TSIEN ORONO See 4,6, 9,21, 22
Treaty of Peace with Japan
(Allied Treaty),
OE: Bi, Beg FGA 8s PRM vcccccsenstcsnissinincenvseasciseved passim
Other Authorities
The Federalist No. 3 (John Jay) ..............ssccccccccsssssssees 16n.15
A OED
IN THE
Supreme Court of the Gnited States
Do GUEN OH, ET AL.,
Petitioners,
Vv.
MITSUI & Co., LTD., ET AL.,
Respondents.
ZHENHUAN MA, ET AL.,
Petitioners,
Vv.
KAJIMA CORPORATION, ET AL.,
Respondents.
RESPONDENTS’
BRIEF IN OPPOSITION
This Court should deny the Oh and Ma petitions for a
writ of certiorari.' The judgment of the U.S. Court of
Appeals for the Ninth Circuit correctly holds that a
California statute creating a cause of action for conduct of
Japanese nationals in Asia during World War II is preempted
1
Two certiorari petitions were filed by petitioners in seven cases.
Petition 02-1773 (Oh) includes Kim v. Ishikawajima Harima Heavy
Indus., Ltd., et al. (01-17197); Sin v. Mitsui & Co., Ltd, et al. (01-
17203); Choe v. Nippon Steel Corp., et al. (01-17211); and Oh, et al., v.
Mitsui & Co. Ltd. et al. (01-17251). Petition 02-1778 (Ma) includes
Ma v. Kajima Corp., et al. (01-17201); Sung v. Mitsubishi Corp., et al.
(01-17207); and Su, et al., v. Mitsubishi Corp., et al. (01-17243).
ys
by the core federal power to make and resolve war, which
the United States “already exercised” when it “resolve[d] the
war, including claims arising out of it,” in the multilateral
Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169
(“Allied Treaty” or “Treaty”). See Appendix to Petition for
Certiorari of the Oh petitioners (“Oh Pet. App.”) at 24a, 27a.
The Ninth Circuit’s ruling is supported by the amicus curiae
position of the United States below.”
The Oh and Ma petitions rely on a decision of a different
Ninth Circuit panel, which this Court reversed in American
Insurance Ass'n v. Garamendi, 123 S. Ct. 2374 (2003) just
three weeks after the petitions were filed. Garamendi held
another World War II-related California statute to be
preempted under the foreign affairs doctrine by virtue of
Executive agreements aimed at resolving claims arising out
of World War II in Europe.
Here the federal interest — the exercise of the war powers
through a peace treaty — is even stronger than in Garamendi,
and is in direct conflict with the state statute, whose only
purpose is “to redress wrongs committed in the course of the
Second World War.” Oh Pet. App. at 23a. As the Ninth
Circuit recognized in distinguishing its own earlier decision,
which was subsequently reversed in Garamendi, these
factors make this a clear case for foreign affairs preemption.
No conflict exists among the U.S. Courts of Appeal or state
courts of last resort with respect to the foreign affairs
preemption issue raised by the petitions.
The statute, section 354.6 of the California Code of Civil
Procedure, is also invalid for other reasons not reached by
the Ninth Circuit. Among these are California’s lack of
legislative jurisdiction to create a cause of action for events
* The Brief for Amicus Curiae the United States of America, filed
with the Ninth Circuit on June 6, 2002, appears at respondents’
Appendix F.
Sa
that occurred beyond its borders, on behalf of persons such
as petitioners who, at the time of the events, were all foreign
nationals having no ties to California or the United States.
Petitioners had no right to sue in U.S. courts a half century
ago and they have none now. The petitions should be
denied.
Opinions Below
The pertinent opinion of the Court of Appeals is that
reported at 324 F.3d 692 (9th Cir. 2003) and not, as the Oh
petition asserts, the amended and superseded opinion
reported at 317 F.3d 1005 (9th Cir. 2003). Oh Pet. at 1. The
version of the opinion attached to the Oh petition is,
however, the correct one.
Pertinent Constitutional Provisions,
Treaties and Statutes
Constitution of the United States
The President shall be Commander in Chief
of the Army and Navy of the United States,
and of the Militia of the several States, when
called into the actual Service of the United
States ....
He shall have Power, by and with the Advice
and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present
concur;....
U.S. Const. art. II, § 2, cls. 1, 2.
The Congress shall have Power To...
provide for the common Defense . . .;
To define and punish Piracies and Felonies
committed on the high Seas, and Offenses
against the Law of Nations;
id
ein
To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning
Captures on Land and Water;
To raise and support Armies .. .;
To provide and maintain a Navy;
To make Rules for the Government and
Regulation of the land and naval Forces... .
U.S. Const. art. I, § 8, cls. 1, 10-14.
No State shall enter into any Treaty, Alliance,
or Confederation; [or] grant Letters of
Marque and Reprisal... .
No State shall, without the Consent of
Congress, lay any Duty of Tonnage, keep
Troops, or Ships of War in time of Peace,
enter into any Agreement or Compact with
... a foreign Power, or engage in War, unless
actually invaded, or in such imminent Danger
as will not admit of delay.
U.S. Const. art. I, § 10, cls. 1, 3.
Treaties
The Allied Treaty appears at respondents’ Appendix A.
The Agreement on the Settlement of Problems
Concerning Property and Claims and on Economic
Cooperation, Japan-Republic of Korea, June 22, 1965,
583 U.N.T.S. 258 (“Japan-Korea Treaty”), appears at
respondents’ Appendix B.
The Treaty of Peace Between China and Japan, Apr. 28,
1952, 38 U.N.T.S. 1858 (“Japan-ROC Treaty”), appears at
respondents’ Appendix C.
The Joint Communiqué of the Government of Japan and
the Government of the People’s Republic of China, Sept. 29,
Peete
pews Sheba
«2
1972 (“Joint Communiqué”), appears at respondents’
Appendix D.
The Treaty of Peace and Friendship Between Japan and
the People’s Republic of China, Aug. 18, 1978 (“Japan-PRC
Treaty”), appears at respondents’ Appendix E.
Statutes
Section 354.6 of the California Code of Civil Procedure is
set forth in full in the Ninth Circuit’s opinion. See Oh Pet.
App. at 10a-12a.
Statement of the Case
Petitioners and the classes they claim to represent’ were
all foreign nationals and nonresidents of the United States at
all relevant times.* All rely on section 354.6 of the
California Code of Civil Procedure, enacted in 1999, which
creates a cause of action for persons allegedly forced to labor
during World War II by, or in areas occupied by, “the Nazi
> No class has been certified; putative class members allegedly
number in the “thousands” or “hundreds of thousands.” ER 7 (Kim
Complaint); ER 39 (Choe Complaint); ER 94; (Sin Complaint); ER 120
(Oh Complaint); ER 75 (Sung Complaint); ER 151 (Su Complaint);
ER 245 (Ma Complaint).
“ER” refers to the Excerpts of Record filed jointly in the U.S.
Court of Appeals for the Ninth Circuit by the Oh and Ma groups of
petitioners. “SER” refers to the Supplemental Excerpts of Record filed
jointly in the Ninth Circuit in the Oh and Ma cases by respondents.
* Although the Oh petitioners generally are referred to as “Koreans”
in this brief, they actually were subjects of Japan at all relevant times;
Japan annexed Korea in 1910, and Korea became independent only after
World WarlII. ER11 (Kim Complaint); ER 43 (Choe Complaint);
ER 123 (Oh Complaint). The Ma petitioners were Chinese nationals at
all relevant times. ER 68-69 (Sung Complaint); ER 143-45 (Su
Complaint); ER 237-39 (Ma Complaint).
oe
regime or its allies,” which, petitioners allege, include
Japar..”
A. Background
Because petitioners’ claims are bound up in the
prosecution and conclusion of World War II in Asia, it is
essential (as the courts below recognized) to understand the
foreign policy that the United States formulated,
incorporated into the Treaty and persuaded 47 other Allied
Nations to adopt. Of special importance are the Treaty’s
requirements that claims of Korean nationals be resolved, not
by litigation, but through “special arrangements” between
the governments of Japan and Korea, art. 4(a) (which
eventuated in the Japan-Korea treaty), and that Japan
conclude treaties with Korea and China on “substantially the
same terms” as the Allied Treaty, including the latter’s
resolution of war-related claims, art. 26 (which eventuated,
in the case of China, in the Japan-ROC Treaty, the Joint
Communiqué and the Japan-PRC Treaty). See App. A at 3a,
19a-20a.
The United States viewed a “free, prosperous and
democratic Japan” as “an important stabilizing influence in
the Far East” in the face of “mount[ing] international
tensions” in that region. SER 545-46 (S. Exec. Rep.
No. 82-2). Convinced that peace would be jeopardized “if
the treaty validated, or kept contingently alive, monetary
reparation claims against Japan,” the United States
convinced its Allies that “it is our duty not to dwell on the
past, but to turn our eyes toward the future.” SER 304, 309
(Record of Proceedings of the Conference for the Conclusion
5
Respondents are Japanese companies and certain of their
contemporary U.S. subsidiaries. The latter are sued not for their own
acts, but for the alleged acts of their Japanese parents — in most cases for
acts of purported predecessors of their parents. See, e.g., ER 36 (Choe
Complaint); ER 118 (Oh Complaint); ER 71 (Sung Complaint); ER 147-
48 (Su Complaint); ER 239-40 (Ma Complaint).
Re ee ne ee ‘+
xP
and Signature of the Treaty of Peace with Japan (1951)
(“Proceedings’”)).
The Treaty’s reparations provisions were premised on the
recognition that it “would have been a short sighted policy
and would certainly have laid the foundation of a lasting
resentment” to leave Japan and its nationals open to future
war-related claims. SER 311 (Proceedings). Consistent with
the well-settled principle that “reparations for war losses is a
... matter to be settled between governments” and “‘it is the
. responsibility of each government to provide such
compensation for persons under its protection as that
government deems fair and equitable ... out of reparations
that may be received from Japan or from other sources,”
SER 556 (S. Exec. Rep. No. 82-2), the United States
negotiated and crafted a Treaty that conclusively provided
for resolution of all war-related claims.°
Allied signatories of the Treaty were accorded specified
reparations and waived all further claims of their own and
their nationals against Japan and its nationals (and vice
versa). App. A at 10a-17a (arts. 14-19); see generally Brief
of Respondents in Opposition to the petitions for a writ of
certiorari filed in Tenney, et al., v. Mitsui & Co., Ltd, et al.
(02-1776) and Saldajeno, et al., v. Ishihara Sangyo Kaisha
Ltd., et al. (02-1784) (“Signatory Brief’). The funds to pay
these reparations came principally from assets of Japanese
businesses and individuals located in Allied and neutral
nations. App. A at 10a-15a (arts. 14(a), 16); see generally
Signatory Brief.
Although Korea could not sign the Treaty “because [it]
was never at war with Japan,” the Treaty “in many ways,
treat[ed] Korea like an Allied Power,” “obtain[ing] for Korea
Japan’s formal recognition of Korea’s independence, and
6
Emphasis in quotations is added throughout this brief, unless
otherwise specified.
ai
Japan’s consent to the vesting in the Republic of Korea, of
the very considerable Japanese property in Korea,” and
placing Korea “on a parity with the Allied powers as
regards... commercial arrangements.” SER 305
(Proceedings).
Because of disagreement among the Allies as to which
“China” should sign the Treaty — Nationalist or Communist —
neither did. SER 305 (Proceedings). Nevertheless, “[t]he
Treaty preserve[d], in full, the rights of China as one of the
Allied Victors,” by, inter alia, awarding China all Japanese
property in Chinese territory. Jd. at SER 306. At the same
time, the United States insisted that China’s nonparticipation
not defeat the policy of achieving final resolution of all war
claims; “it would ... be wrong, cruel and stupid to penalize
Japan because there is civil war in China and international
disagreement regarding China.” Jd. at SER 305.
While acknowledging that nonsignatory nations,
particularly Korea and China, had suffered enormously from
“Japanese aggression,” SER 304,305 (Proceedings), the
United States concluded .that requiring reparations from
Japan “in any proportion commensurate with the claims of
the injured countries and their nationals” would be “contrary
to the basic purposes and policy of the free nations, the
Allied Powers, and the United States in particular.”
SER 555 (S. Exec. Rep. No. 82-2). Peace “would be
impossible if the Treaty kept alive the right[s] of the [injured
countries] to demand monetary reparations payments.”
SER 424 (Memo, Sec’y of State to President, Aug. 7, 1951).
Accordingly, article 26 of the Treaty obligated Japan to
conclude separate treaties with Korea and China “on the
same or substantially the same terms” as the Allied Treaty,
SER 289-90, including the latter’s reparations provisions.
See App. A at 10a-13a (art. 14); see generally Signatory
Brief. Article 4(a) also directed that “claims. .. of [Korea]
and [its] residents against Japan and its nationals, shall be the
subject of special arrangements between Japan and
O.
[Korea],” App.A at 3a, thus mandating that Korean
nationals’ claims “be resolved through inter-governmental
agreements rather than litigation.” App. F at 54a.
Faithful to the Allied Treaty, Japan negotiated the Korea-
Japan Treaty and, consistent with U.S. foreign policy, three
agreements with China: one with the Republic of China (the
Japan-ROC Treaty) and, later, two with the People’s
Republic of China (the Joint Communiqué and the Japan-
PRC Treaty). As discussed in sections I.B.2. and II.B. infra,
these treaties also address reparations and independently
preclude adjudication of petitioners’ claims.
B. Petitioners’ Allegations
Petitioners admittedly have never had any contact with
California, except for a handful who emigrated after World
War II. None of the conduct underlying their claims
occurred in California, or even in the United States.
Petitioners allege that their forced labor was in furtherance of
the Japanese war effort.’ Several of the complaints’ details
attest to the Japanese Government’s deep involvement in the
forced labor regime, e.g., through laws and government
directives requiring companies to use forced labor to achieve
Japan’s war aims, and through the use of police and other
government agencies to dragoon forced laborers.” Some
” See, e.g., ER34 (“To assist in the war effort the Japanese
government directed that Korean Nationals be forcibly deported and put
to work by Japanese industry.”); see also ER 36 4 10, 52 4 60; ER 2, 4;
ER 67; ER 93; ER 123; ER 142; ER 235-36.
* See, e.g., ER 43-44 (“National General Mobilization Law directed ;
. authorities to ‘draft Imperial subjects and make them serve the
purposes of general mobilization.’”); ER 12 (“[T]he Japanese Cabinet . . .
prescribed ... numbers of Koreans ... deported for forced and slave
labor and detailed allocations [of laborers] to particular industries.”).
° See, e.g., ER 98 (“[Plaintiff] was raided by a policeman and an
officer of the [regional] office while asleep in [his] home,...
handcuffed [,] . . . taken to a gathering place . . . , and was transported to
Japan forcibly.”); ER 12 (“Japanese Welfare Ministry issued a directive
(continued ...)
x.
complaints allege that respondents’ predecessors “turned
over” petitioners’ wages to the Japanese Government, which
never remitted the money to petitioners. '°
C. Proceedings in the District Court
The Judicial Panel on Multidistrict Litigation consolidated
petitioners’ cases in the U.S. District Court for the Northern
District of California, along with 21 others based on section
354.6. SER 16-23, 265-67, 578. That court dismissed all 28
cases, holding section 354.6 unconstitutional “because it
infringes on the exclusive foreign affairs power of the United
States.”'' Oh Pet. App. at 52a, 73a.
The District Court had the benefit of a Statement of
Interest of the United States, explaining the Treaty’s
negotiating and legislative history, U.S. foreign policy
underlying it, and the Treaty’s status as the cornerstone of
U.S. Far Eastern policy over the last half century. The court
was also provided with a Note Verbale from the Government
of Japan to the United States. Both governments explained
that section 354.6 would frustrate the operation of the
Treaty — which contemplated resolution of all war claims by
“state-to-state negotiations’— and would “jeopardize
relations between the United States and Japan and Japan and
its Asian neighbors.” SER 517, 520 (U.S. Statement of
Interest); see SER 525 (Note Verbale).
(... continued)
that confirmed that the forcible deportation of Koreans was systematic
and calculated.”).
1 See ER 10; ER 42; ER 97.
'! The District Court also ruled that petitioners’ other claims were
all time-barred. Oh Pet. App. at 82a, 84a. That ruling, affirmed by the
Ninth Circuit, id. at 32a-35a, is not challenged in the certiorari petitions.
F
poe
‘ pi
|
D. The Court of Appeals Decision
The Ninth Circuit affirmed the District Court’s judgments
in all 28 consolidated cases.'!? Like the District Court, the
Ninth Circuit had the bénefit of the views of the United
States, which supplemented its Statement of Interest with an
amicus curiae brief and presented oral argument on the
Treaty and U.S. foreign policy issues.
In its analysis, the panel expressly distinguished an earlier
decision of a different panel — later reversed by this Court in
Garamendi— in Gerling Global Reins. Corp. v. Low,
240 F.3d 739 (9th Cir. 2001). Low involved another World
War II statute enacted by California, the Holocaust Victim
Insurance Relief Act, Cal. Ins. Code §§ 13800-13807
(“HVIRA”). HVIRA, unlike Section 354.6, did not create a
private right of action; rather, it required insurers doing
business in California to provide disclosure about policies
sold to persons in Europe, which were in effect between
1920 and 1945. The panel deciding the present cases
recognized that the basis for preemption is much stronger for
section 354.6 than for HVIRA. While section 354.6 has no
purpose except “to provide a monetary remedy for decades-
old wartime wrongs,” Oh Pet. App. at 31a, HVIRA was a
“forward-looking regulatory statute” that “merely” required
disclosure and at least purported to safeguard contemporary
consumer interests. Jd.
In assessing where the line between federal and state
power is to be drawn in the context of a law to remedy war-
related injuries, the Ninth Circuit considered that, of the
eleven clauses of the Constitution dealing with the foreign
affairs powers of the President and Congress, seven
* In addition, the Ninth Circuit affirmed dismissal of Deutsch v.
Turner Corp., No. CV 00-4405 SVW (AJWX), 2000 WL 33957691
(C.D. Cal. Aug. 25, 2000), which alleged World War II wrongs by
German, not Japanese corporations. No certiorari petition was filed in
Deutsch.
o $2.
enumerate war powers, including “settling war.” Oh Pet.
App. at 2la. Conversely, “[mJost of the Constitution’s
express limitations on States’ foreign affairs powers also
concern war.” Jd. The court found that the power “to
resolve war, including the power to establish the procedure
for resolving war claims” is “part of the inner core” of the
“foreign relations power that is denied to the states.” Oh Pet.
App. at 20a-21la. It also noted that the state statute struck
down by this Court in Zschernig v. Miller, 389 U.S. 429
(1968), although not by its terms war-related, “was seen by a
Court operating at the height of the Cold War as a potential
provocation to foreign powers.” Oh Pet. App. at 21a-22a.
The Ninth Circuit went on to note that the federal
government had “already exercised its own exclusive
authority to resolve” World War II, “including claims arising
out of it,” by the ratification of the Allied Treaty. Oh Pet.
App. at 24a, 27a. As the parties agreed, that resolution
neither created “a private right of action against Japan or its
nationals” nor authorized “states of the United States to
create such a right.” Oh Pet. App. at 27a. Because section
354.6 would “modify” that resolution, the court held that the
statute was preempted. Oh Pet. App. at 27a-28a & n.14.
This holding did not depend on the nationality of any
particular plaintiff who might invoke section 354.6 in a U.S.
court; accordingly, it was “immaterial” that petitioners were
citizens of nations that did not sign the Treaty. Oh Pet. App.
at 28a n.14.
Petitioners requested rehearing and rehearing en banc,
which were unanimously denied on March 6, 2003. No
active judge requested a vote on rehearing en banc, although
two of the Low panel members are active judges. Oh Pet.
App. at 41a. Nevertheless, the Ninth Circuit held issuance of
its mandate pending this Court’s decision in Garamendi.
After this Court decided Garamendi on June 23, 2003, the
Ma petitioners asked the Ninth Circuit to reconsider its
—
. .
decision. The Ninth Circuit denied the request for
reconsideration and issued its mandate on July 30, 2003.
Argument
I. Because the Ninth Circuit’s Decision Accords with
Garamendi, the Petitions Should Be Denied
The Ninth Circuit’s decision is fully consistent with
Garamendi — indeed, had the Ninth Circuit not invalidated
section 354.6, Garamendi would require __ reversal.
Preemption is required under either, or both, preemption
theories discussed in Garamendi-— the “field” theory
Garamendi identified as the basis of the majority opinion in
Zschernig and the “conflict” theory of Justice Harlan’s
Zschernig concurrence. Garamendi, 123 S. Ct. at 2388-89.
As Garamendi explained, under the “field” approach, all
“state action with more than incidental effect on foreign
affairs is preempted, even absent any affirmative federal
activity in the subject area of the law, and hence without any
showing of conflict.” Id. at 2388 (citing Zschernig, 389 U.S.
at 441; Hines v. Davidowitz, 312 U.S. 52, 63 (1941); United
States v. Belmont, 301 U.S. 324, 331 (1937); and United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316-19
(1936)). “Conflict” preemption requires an actual conflict
between state law and a federal foreign policy interest.
Garamendi, 123 S. Ct. at 2389.
Garamendi found it unnecessary to make a “categorical
choice” between the two theories; there was a “sufficiently
clear conflict” between the federal policy and state law in
that case to result in preemption. Jd. at 2389-90. The Court
further observed that no such choice may be nece in
other cases, or, indeed ever, for the two theories “can be seen
as complementary.” /d at 2389 nll. Thus, “field
preemption might be the appropriate doctrine” where a state
“take[s] a position on a matter of foreign policy with no
serious claim to be addressing a traditional/ state
responsibility,” while “it might make good sense to r¢quire a
/
/
«Sts
conflict” where “a state has acted within” its “traditional
competence,’ but in a way that affects foreign relations.”
Id. (quoting Zschernig, 389 U.S. at 459 (Harlan, J.,
concurring)).
The Ninth Circuit also did not explicitly choose one
preemption theory, nor did it need to.'° As shown below,
either theory could apply here and, under either analysis,
section 354.6 is invalid.
A. As Applied to Respondents, Section 354.6 Is
Preempted Under the “Field” Theory Described in
Garamendi
1. This Case Presents Precisely the Circumstances
That Make Field Preemption “the [A]ppropriate
[D]octrine” Under Garamendi
Garamendi teaches that field preemption may be “the
appropriate doctrine” where astate acts in the area “of
foreign policy with no serious claim to be addressing a
traditional state responsibility.” 123 S.Ct. at 2389 n.11.
Here California has fashioned its own war reparations cause
of action and can make no “serious claim” that it is
addressing a “traditional state responsibility” — not even one
with the “tangential relation to present-day” regulatory
objectives asserted (albeit unsuccessfully) to justify the
statute struck down in Garamendi. Id. at 2394."
'? This Court has previously held that the “categories of preemption
are not ‘rigidly distinct.” Crosby v. Nat'l Foreign Trade Council,
530 U.S. 363, 373 n.6 (2000) (quoting English v. Gen. Elec. Co., 496
U.S. 72, 79 n.5 (1990)). “Indeed, field pre-emption may be understood
as a species of conflict pre-emption: A state law that falls within a pre-
empted field conflicts with Congress’ intent (either express or plainly
implied) to exclude state regulation.” English, 496 U.S. at 79 n.5.
'4 In seeking rehearing of Garamendi, even California has stressed
that “HVIRA is simply a disclosure statute that does not force the
payment of any claim” and that the conduct that prompted it is the
“present refusal of companies to disclose,” Am. Ins. Ass'n v. Garamendi,
: (continued ...)
St.
As the Ninth Circuit correctly recognized, section 354.6
permits suit “only” by “‘Second Werld War slave labor
victims’” and “‘Second World War forced labor victims.’”
Oh Pet. App. at 23a (quoting § 354.6(b)). The “wrong-doers
under the statute”’-— “‘the Nazi regime, its allies and
sympathizers, or enterprises transacting business in any of
the areas occupied by or under control of the Nazi regime or
its allies or sympathizers’” — were, “by definition, wartime
enemies of the United States,” or at least “were operating in
enemy territory . . . with the consent and for the benefit of
our wartime enemy.” Jd. (quoting § 354.6(a)(1), (2)). By
enacting section 354.6, California plainly sought “to create
its Own resolution to a major issue arising out of the war —a
remedy for wartime acts that California’s legislature believed
had never been fairly resolved.” Jd.
Since this country’s founding, the law has been clear:
resolution of war claims is for the federal government ta
address through treaties or other state-to-state agreements.
Warev. Hylton, 3U.S. (Dall.) 199, 229-30 (1796)
(compensation for losses sustained “during [a] war . . . [may]
only be provided for by the treaty of peace” because “‘a treaty
of peace abolishes the subject of the war..., [and alll
violences, injuries or damages sustained by the government
or people of either [belligerent] during the war, are buried in
oblivion ... by the very treaty of peace”); see also Stewart
v. Kahn, 78 U.S. 493, 506-07 (1870) (states cannot interfere
with federal war- and peace-making powers, which include
the power to “remedy the evils which have arisen from
[war’s] rise and progress”). This principle is grounded, as
the Ninth Circuit recognized, in the Constitution’s textual
(... continued)
No. 02-722, Pet. Reh. at 7— wholly unlike section 354.6. See also
Garamendi, 123 S. Ct. at 2397 (Ginsberg, J., dissenting) (noting that
“statutory provisions enabling the litigation of Holocaust era insurance
claims” were “not at issue” there).
» 16.
commitment of war powers to the federal government, while
withholding them from the states.!
The Ninth Circuit’s conclusion that the “power to
establish the procedure for resolving war claims” is “part of
the inner core” of the “foreign relations power that is denied
to the states,” Oh Pet. App. at 20a-21a, seems to anticipate
Garamendi’s observation that “[v]indicating victims injured
by acts and omissions of enemy corporations in wartime
is... within the traditional subject matter of foreign policy
in which the national, not state, interests are overriding.”
Garamendi, 123 S. Ct. at 2390. Thus California’s attempt to
provide its own war reparations law is surely subject to
preemption under Garamendi.
2. Field Preemption Is Particularly Appropriate
Where, as Here, the Federal Government Has
Exercised Its Treaty Powers
Under the field preemption theory of the Zschernig
majority opinion, state action may be preempted “even
absent any affirmative federal activity’ in the field.
Garamendi, 123 S. Ct. at 2388; see also Zschernig, 389 U.S.
at 441 (preemption found in the “absence of a treaty,” statute
or executive agreement). Here, unlike Zschernig, there has
been intense federal activity in the very area of foreign
affairs in which the California statute purports to operate. As
the Ninth Circuit recognized, “the United States has already
exercised its own exclusive authority to resolve the war,
including claims arising out of it.” Oh Pet. App. at 24a, 27a.
The fact that the United States’ exercise of its foreign
affairs authority culminated in the Treaty — as opposed to
some other “affirmative federal activity’— provides
additional support for finding preemption here. Whatever
'S See also The Federalist No. 3 (“[NJot only fewer just causes of
war will be given by the national government, but it will also be more in
their power to accommodate and settle them amicably.”).
ee
may be said regarding executive agreements or other
exercises of foreign affairs powers, the federal treaty power
“enjoy[s] . . . textual detail” in the Constitution. Garamendi,
123 S. Ct. at 2386; see U.S. Const. art. II, § 2, cl. 2. Indeed,
the power to make treaties is expressly denied to the states.
Id. art. I, § 10, cl. 1. Furthermore, federal law embodied in a
treaty reflects the consensus of Congress and the Executive
regarding foreign policy. Cf Crosby, 530 U.S. at 375
(noting that ““[w]hen the President acts [in foreign affairs]
pursuant to an . . . authorization from Congress, his authority
is at its maximum’”’) (quoting Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 635 (1952)); Garamendi, 123 S. Ct.
at 2400n.4 (Ginsburg, J., dissenting) (criticizing the
majority’s reliance on Crosby because “Crosby was a
statutory preemption case”). Here, both the Executive and
Congress have acted to occupy the field of war reparations
against Japan, through a longstanding policy embodied in the
Treaty, leaving California no possible ambit to enact section
354.6.
B. Particularly As Applied to Respondents, Section
354.6 Is Equally Preempted Under the “Conflict”
Theory Described in Garamendi
Even if section 354.6 could somehow be viewed as
addressing issues “within areas of . . . traditional state
responsibility,” so as to warrant application of the “conflict”
preemption standard articulated in Garamendi, the California
statute would still be preempted if applied to
respondents. As articulated in Garamendi, the “clarity or
substantiality” of a conflict “var[ies] with the strength or the
traditional importance of the state concern asserted,” id. at
2389 n.11, and, as appropriate, “the strength of the federal
foreign policy interest.” Jd. Here, California’s interest is
extraordinarily weak, the conflict is acute, and the federal
interest is overwhelming.
-18-
1. The State’s Interest Is Nonexistent
California’s interest in enacting section 354.6 is
considerably weaker than it was even with respect to
HVIRA, because here the statute possesses neither a state
regulatory purpose nor any colorable claim to having been
authorized by federal legislation. Cf Garamendi, 123 S. Ct.
at 2393 (discussing California’s argument that Congress
authorized laws like HVIRA in the McCarran-Ferguson Act
and the U.S. Holocaust Assets Commission Act); see also
supra n.14. Moreover, section 354.6 shares with HVIRA the
fatal flaw that the conduct California seeks to govern —
namely, conduct by Japan and Japanese nationals towards
Korean and Chinese nationals in Asia during World War II —
is wholly divorced from California. Garamendi, 123 S. Ct.
at 2393 (citing Phillips Petroleum Co.v. Shutts,
472 U.S. 797 (1985) and Allstate Ins. Co. v. Hague, 449 U.S.
302 (1981)); see infra section II.A.
Even more attenuated than its interest in enacting section
354.6 is California’s interest in having the statute applied in
these cases. At best, California might have an interest in the
welfare of Korean and Chinese nationals who moved to the
state after World War II, but Garamendi explicitly held that
this factor should be accorded “little or no significance.’”
Id. (quoting Shutts, 472 U.S. at 820). Furthermore, as a
matter of fact, only a few of the hundreds of thousands of
putative class members in these cases have claimed
California residency. ER 3 (Kim Complaint); ER 68 (Sung
Complaint). Thus no cognizable state interest is at stake in
these cases.
2. The Conflict with the Allied Treaty
Given the lack of state interest, only a minimal conflict is
required for “conflict” preemption to exist under Garamendi.
Id. at 2389 (strength of state interest determines “how
serious a con‘lict must be shown before declaring the state
oat.
law preempted”). In this case, though, the conflict is clear
and direct.
“The Treaty reflects the United States government’s
foreign policy determination that all war-related claims
against Japan and its nationals — including private claims and
including the claims of those whose governments were not
party to the Treaty — should be resolved by government-to-
government agreement rather than litigation.” App.F at
42a-43a, 49a, 54a.'® This approach is in harmony with well-
settled international and U.S. legal principles. See, e.g.,
Ware, 3 U.S. at 229 (Chase, J.).
With respect to Korea, U.S. law and policy is codified in
article 4(a) of the Treaty, which commits the Korean
petitioners’ claims to resolution through “special
arrangements” between Japan and Korea and leaves no room
for any other U.S. law remedy. App. A at 3a. Article 26 of
the Treaty obligated Japan to conclude separate treaties with
China as well as Korea “on the same or substantially the
same terms” as the Allied Treaty, including the latter’s
claims resolution provisions. App. A at 19a-20a. Private
lawsuits in U.S. courts under California (or even federal) law
are, of course, the antithesis of the diplomatic resolution
mandated by the Treaty. See App. F at 53a-55a (“The Treaty
of Peace . . . provides that the claims of Korea and China,
and those of their nationals, will be resolved through inter-
governmental agreements rather than through litigation.”).
Japan shares this view. SER525 (Japan’s Note Verbale)
(“[T]hese issues should not be adjudicated in the courts in
the United States.”). Allowing claims to proceed in U.S.
courts would therefore “undermine[] the intended purpose
and ‘natural effect’” of the Treaty. See Crosby, 530 U.S. at
'© “(T]he meaning attributed to treaty provisions by the Government
agencies charged with their negotiation and enforcernent is entitled to
great weight.” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176,
184-85 (1982).
-20 -
373 (finding conflict preemption); App. F at 49a-50a (noting
the “conflict[]” between section 354.6 and the Treaty), 55a
(stating that Korean and Chinese plaintiffs “may not,
consistent with the United States’ policy adopted in the
Treaty, pursue their claims in the courts of the United
States.”).
Very recently, a unanimous panel of the U.S. Court of
Appeals for the District of Columbia Circuit found that the
Treaty foreclosed war-related claims by Korean and Chinese
nationals in U.S. courts. In Joo v. Japan, 332 F.3d 679 (D.C.
Cir. 2003), the court considered whether the commercial
exception to the Foreign Sovereign Immunities Act could be
applied retroactively to World War II events; the court
concluded that it could not, in part because “the [Allied]
Treaty manifests the parties’ intent to resolve matters arising
from World War II without involving the courts of the United
States (or of any signatory nation).” Jd. at 684-85. The court
found that the Treaty “expressed a clear [U.S.] policy of
resolving the claims of Korean and Chinese nationals
through government-to-government negotiation.” Jd. at
685.!’ Indeed, as evidence of such subsequent negotiations,
the Joo court cited the Japan-Korea Treaty and the Japan-
ROC Treaty. Jd.; see also App. B and App. C.
The certiorari petitions never mention the Treaty
provisions directed to resolution of war claims among Japan,
Korea and China, confining their treatment of the Treaty to
stating that Korea and China were not signatories. The issue,
however, is not whether Korea or China were signatories; it
is that the Treaty “establish[es] the law of the United States
'7 The court pointed to article 14 of the Treaty, which reciprocally
waived all claims of Allied and Japanese nationals, and noted that “it
would be odd indeed for the United States, on the one hand, to waive all
claims of its nationals against Japan and, on the other hand, to allow non-
[signatory] nationals to proceed against Japan in its courts.” Joo,
332 F.3d at 685.
a
with respect to the war-related claims of Korean and Chinese
nationals.” App. F at 54a. That law — mandating resolution
through diplomacy — binds U.S. courts, including state courts
and state legislatures; no other or additional remedy can be
' supplied under United States law.
One result of the diplomacy mandated by the Treaty was
the Japan-Korea Treaty, which is “part and parcel of the
framework created by the United States in 1951.” SER 512
(U.S. Statement of Interest). That treaty independently
precludes adjudication of petitioners’ claims, for through it
Japan paid Korea a half billion dollars in grants and loans,
App. B at 21a-22a (art. I), and the parties “settled completely
and finally” the “problem concerning property, rights and
interests of the two Contracting Parties and their nationals”
as well as “claims between the Contracting Parties and their _
nationals” (including juridical persons), App.B at 23a
(art. II, § 1). The claims resolved “include[d]” — but are not
restricted to — “those provided for in” article 4 of the Allied
Treaty -— i.e, reparations— and “claims that... Korean
natural persons have against... Japanese nationals such
as... claims by Koreans’ against Japanese...
corporations.” SER 370 (Agreed Minutes § 2(g)); SER 320-
22 (Republic of Korea, White Paper on Korea-Japan Talks
(1965)); SER 346-47 (Outline of the “Eight Items” — Claims
Made by Korea Against Japan).
Other products of the Treaty are the Japan-ROC and
Japan-PRC treaties and the Joint Communiqué, which,
separately and together, reciprocally settled all war claims of
Japanese and Chinese nationals. In negotiating and signing
these treaties, Japan complied not only with its obligations
under the Allied Treaty, but with the admonition of the
United States that Japan “pursue foreign policies in Asia
which were generally compatible with those of the United
States, particularly in relation to China.” SER 376-77. The
Japan-ROC Treaty literally incorporated by reference the
“relevant provisions” of the Allied Treaty as the rule by
7.
which “any problem” between the signatories resulting from
“the existence of a state of war” “shall be settled” (unless the
Japan-ROC Treaty, or its supplementary documents,
provided otherwise). App.C at 29a (art. XI). Having
concluded a treaty with the only government of China
recognized by the United States— the ROC- Japan
reasonably took the position that its treaty with the ROC
resolved all war claims involving China. Nevertheless, in
1972, Japan responded to the United States’ recognition of
the PRC by opening negotiations to “normalize” its own
relations with the PRC, SER 409-410, an “opening to China”
that led to the Joint Communiqué in which Japan and the
PRC agreed to language, carefully drafted as a political
compromise to preserve the dignity of both sides, whereby
the PRC declared “that in the interest of the friendship
between the Chinese and the Japanese peoples,” the PRC
“renounces its demand for war reparation from Japan.”
App. D at 33a (art. 5). The Japan-PRC Treaty, App. E,
incorporated and reaffirmed the terms of the Joint
Communiqué. Thus the fruit of the Allied Treaty’s
resolution of petitioners’ claims via diplomacy resulted in
other, nonjudicial resolutions of those claims under the laws
of petitioners’ own countries."
3. The Overwhelming Federal Foreign Policy
Interest
The resolution of World War II-era reparations claims
against Japanese companies is an “area of uniquely federal
interest” for all of the reasons discussed above with respect
to the appropriateness of a “field” preemption analysis.
Garamendi, 123 S. Ct. at 2389 n.11; Boyle v. United Techs.
'8 As noted above, however, petitioners would be unable to proceed
in U.S. courts even if the agreements between Japan and Korea and Japan
and China permitted lawsuits. U.S. courts are bound by “the law of the
United States,” which mandates a nonjudicial resolution of “the war-
related claims of Korean and Chinese nationals.” App. F. at 54a.
a.
Corp., 487 U.S. 500, 507-08 (1987). The Ninth Circuit
carefully and correctly assessed this overwhelming federal
interest, which provides a further reason that the balance of
factors leads inexorably to preemption in these cases, even
under a “conflict” theory analysis.
C. Garamendi Expressly Rejected Many of
Petitioners’ Specific Attacks on the Decision Below
In addition to validating the Ninth Circuit’s foreign affairs
preemption analysis, Garamendi addressed and rejected
several of petitioners’ arguments based on their (incorrect)
assumption that Low was decided correctly. Both petitions
insist that foreign affairs preemption does not apply to suits
against “private” parties. Oh Pet. at 2, 16, 18, 20; Ma Pet. at
18 and 21. Garamendi, however, flatly rejected any
“distinction” between companies and governments of
“formerly belligerent states.” 123 S. Ct. at 2387. Observing
that “untangling government policy from private initiative
during war time is often so hard that diplomatic action
settling claims against private parties may well be just as
essential in the aftermath of hostilities as diplomacy to settle
claims against foreign governments,” this Court found that
the attempted distinction simply “does not matter”. Id.
What was true in Garamendi is doubly so here, where
petitioners have alleged that the Japanese government
ordered their forced labor. See, e.g., ER34 (Choe
complaint); ER 97, 98-99 (Sin complaint); ER 123-24 (Oh
complaint). Indeed, as the Ninth Circuit recognized, the only
suits permitted by section 354.6 are against ““enterprises’”
that, “if not themselves our wartime enemies, were operating
in enemy territory and presumably — no party disputes this —
with the consent and for the benefit of our wartime enemy.”
Oh Pet. App. at 23a (quoting § 354.6(a)(1), (2)).
The Qh petitioners also make the odd argument that
section 354.6 is not subject to preemption because it does
“not focus on any single country.” Oh Pet. at 17. Not only
7 -
is their premise wrong-— the statute focuses solely on
conduct of the “Nazi regime, its allies and sympathizers,”
while ignoring forced labor practices of other countries or
eras, § 354.6(a)(1), (2) — but also the reach of HVIRA was —
even broader. As the Oh petitioners concede, HVIRA did
not “target any particular country,” Oh Pet. at 14-15, yet its
wider scope posed no obstacle to the application of foreign
affairs preemption in Garamendi.
Petitioners also incorrectly characterize section 354.6 as
purely a statute of limitations, implying that it cannot
therefore interfere with foreign affairs. Oh Pet. at 2, 6-7; Ma
Pet. at 22-25. Once again, the premise is wrong. As the
Ninth Circuit found, and as discussed in section II.A.3. infra,
section 354.6 is not merely a limitations statute. But, even if
it were, petitioners cite no authority differentiating between
limitations and substantive statutes in a foreign affairs
analysis, and, as the Ninth Circuit recognized, neither logic
nor policy permits such a distinction. See Oh Pet. App. at
14a (“Whether substantive or procedural,” section 354.6
creates a “new rule [that] profoundly alters the likelihood
that” Second World War reparations “actions will
succeed.”).
Just as misguided is petitioners’ argument that section
354.6 does not “implicate current foreign policy.” Oh Pet. at
16, 21; Ma Pet. at 21. The Allied Treaty, although signed
some 50 years ago, is current law in the United States and
Japan. As the United States advised the lower courts, it
remains the cornerstone of U.S. foreign policy in the Far
East and is as much an expression of U.S. and Japanese
foreign policy today as it was in 1951. SER505 (US.
Statement of Interest). Section 354.6 therefore does affect
ongoing foreign relations— indeed, the United States and
Japan agree that the iaw threatens to “jeopardiz[e] relations
between the United States and Japan and Japan and its Asian
neighbors.” SER520 (U.S. Statement of Interest); see
SER 525 (Note Verbale).
. o
Petitioners’ contention that the Ninth Circuit applied a
“rigid rule” so broad that it would preclude numerous suits
that other courts have allowed to go forward, Oh Pet. at 22-
28; Ma Pet. at 19-22, misrepresents both ihe Ninth Circuit’s
decision and the suits that other courts have entertained.
Contrary to petitioners’ assertions that the Ninth Circuit’s
holding precludes any state cause of action “somehow
relate[d] to war,” Oh Pet. at i, see clso Oh Pet. at 25-27, that
arose “before or during a time of war” see, e. g., Ma Pet. at i,
see also Ma Pet. at 12, 14, 18-19 and 21, the decision
contains neither words nor reasoning that remotely could
yield such a result.
The Ninth Circuit’s holding, in fact, is narrow: “section
354.6 is impermissible because it intrudes on the federal
government’s exclusive power to make and resolve war,
including the procedure for resolving war claims.” Oh Pet.
App. at 23a. This holding is further limited by the court’s
explicit reliance on the fact that the federal government “has
already exercised” its authority to resolve the war it waged.
Oh Pet. App. at 24a. Of the cases that petitioners allege are
in conflict with the Ninth Circuit’s opinion, none involves
the core federal power to resolve, through a treaty or
otherwise, a war waged by the United States or a state-
created cause of action devoted to war reparations. Thus
there is no contradiction between the Ninth Circuit’s holding
and the cases petitioners cite. Oh Pet. at 25-27; Ma Pet. at
20-21.
II. Alternative Grounds for Dismissal Make Grant of
Certiorari Inappropriate
Preemption is only one of many grounds for dismissing
petitioners’ claims. Respondents briefly bring a few of these
to the Court’s attention both to inform the decision on the
petitions and to request that, should review on the issue of
foreign affairs preemption be granted, these grounds also be
considered as a basis for affirmance.
=
A. Applying California Law Would Violate Due Process
One of the issues on which certiorari was granted in
Garamendi was whether HVIRA exceeded California’s
“legislative jurisdiction” under the Due Process Clause,
given the tenuous connection between California and the
issuance of insurance policies in Europe decades ago.
“Garamendi, 123 S. Ct. at 2385 n.7. While the Court did not
reach the issue in Garamendi, id., in this case there can be no
doubt that the Due Process Clause forbids California to apply
its law to the conduct of Japan and Japanese nationals toward
Koreans and Chinese in Asia during World War II. —
1. Due Process Requires Significant Contacts
Between California and the Conduct It Regulates
As Garamendi explained, “the general standards for
evaluating a State’s claim to apply its forum law to a
particular controversy or transaction” may be found in this
Court’s opinions in Shutts and Allstate. 123 S. Ct. at 2393.
Those standards make it unconstitutional to apply the law of
a “State [that] has only an insignificant contact with the
parties and the occurrence or transaction.” Allstate,
449 U.S. at 310-11 (plurality); id. at 333 (Powell, J.,
dissenting); see also Shutts, 472 U.S. at 822 (state “may not
abrogate the rights of parties beyond its borders having no
relation to anything done or to be done within them”). In
Shutts, for example, this Court held that Kansas law could
not constitutionally govern claims of non-Kansas petitioners
against a non-Kansas respondent regarding non-Kansas
leases, even though respondent “own[ed] property and
conduct[ed] substantial business in the State” and “hundreds
of Kansas plaintiffs were [also] affected” by the challenged
conduct. Jd., 472 U.S. at 818-22.
A state may apply its law only if it has “‘a significant
contact or significant aggregation of contacts, creating state
interests, such that choice of its law is neither arbitrary nor
fundamentally unfair.” Shutts, 472 U.S. at 818 (quoting
a.
Allstate, 449 U.S. at 312-13); accord Franchise Tax Bad. v.
Hyatt, 123 S. Ct. 1683, 1687 (2003). In determining whether
“application of [forum law is] sufficiently arbitrary and
unfair as to exceed constitutional limits,” the “expectation of
the parties [is] an important element.” Shutts, 472 U.S.
at 822.
Here, the conduct at issue is wholly unconnected to
California. None of the petitioners had any relationship with
California at the time of the alleged conduct, and almost
none does even now. Neither petitioners nor respondents, at
the time of the events, couid “reasonably have anticipated
that their actions would later be judged” by California law.
Allstate, 449 U.S. at 327 (Stevens, J., concurring). Thus
section 354.6, as applied, exceeds California’s legislative
jurisdiction.
2. The Presence Today of Some Petitioners and
Respondents in California Does Not Satisfy Due
Process
Nor is the absence of any “significant contact” between
California and these cases cured because a few petitioners
may have become California residents in the sixty years
since their claims arose. “‘Even if a plaintiff evidences his
desire for forum law by moving to the forum,’” this Court
has “‘generally accorded such a move little or no
significance.”” Garamendi, 123S.Ct. at 2393 (quoting
Shutts, 472 U.S. 820); see also Allstate, 449 U.S. at 319
(plurality) (“[A] postoccurrence change of residence to the
forum State [is] insufficient” in and of itself to confer power
on the forum State to choose its law.) cited in Garamendi,
123 S. Ct. at 2393.
No more pertinent is the amenability of some respondents
to personal jurisdiction in California.'? “[W]hile a State
'? Petitioners assert claims under section 354.6 against US.
subsidiaries that came into being long after World War II, and therefore
(continued ...)
=
may... assume jurisdiction over the claims of [parties]
whose principal contacts are with other States, it may not use
this assumption of jurisdiction as an added weight in the
scale when considering the permissible constitutional limits
on choice of substantive law.” Shutts, 472 U.S. at 819, 821.
3. Calling the Statute “Procedural” Does Not Cure
the Due Process Violation
Both petitioners and the California Attorney General
admitted in the District Court that section 354.6 is not just a
statute of limitations that extends the time within which
claims under existing law can be filed, but creates a new
cause of action — which petitioners in fact sued upon — and
without which, they also admit by their arguments in this
Court, they would have no claim at all. Plaintiffs’
Supplemental Brief Regarding the Constitutionality of Code
of Civil Procedure Section 354.6, filed Mar. 1, 2001, at 2, 3;
Amicus Curiae Brief of the Attorney General of the State of
California, filed Aug. 8, 2000, at4. Now, however, these
parties, hoping to evade the rule of Shutts, have altered their
position, contending that the statute is only a “procedural”
statute of limitations. See, e.g., Oh Pet. at 2, 6-7; Ma Pet. at
22-25.
Even if these parties were free to change position — and
‘they were not, see, e.g., Helfand v. Gerson, 105 F.3d 530,
535-36 (9th Cir. 1996)— their revised argument is both
wrong and irrelevant. It is wrong because, as the Ninth
Circuit observed, the statute “explicitly creates a cause of
action by providing that certain individuals ‘may bring an
(... continued)
had no involvement whatsoever in any of the alleged forced labor. The
further due process violation that would result from applying the statute
to such entities provides yet another basis for affirming the court of
appeals. See Gerling Global Reins. Corp. v. Nelson, 123 F. Supp. 2d
1298, 1302 (N.D. Fla. 2000), aff'd, Gerling Global Reins. Corp. of Am.
v. Gallagher, 267 F.3d 1228 (11" Cir. 2001). \
«90.
action’ for certain wrongs.” Oh Pet. App. at 12a (quoting
§ 354.6(b) and citing Verizon Md, Inc. v. Public Serv.
Comm'n of Md., 535 U.S. 635, 644 (2002) (statute providing
party “may bring an action” “reads like the conferral of a
private right of action”)). Further, the limitations period of
section 354.6(c) applies only to “action[s] brought under this
section,” i.e., actions maintained under section 354.6 itself 2°
Thus it cannot be just a statute of limitations, for it would not
have any claim to limit. Petitioners’ assertion of claims
directly based on section 354.6 also confirms its substantive
nature. ER 24 (Kim); ER 56 (Choe); ER 80 (Sung); ER 103
(Sin); ER 126 (Oh); ER 153 (Su); ER 254 (Ma).
The argument is irrelevant because, even if section 354.6
were merely a statute of limitations that revived other
California claims, subjecting respondents to liability for
those claims would itself violate due process, for the reasons
discussed in part, II.A.1. supra. It would also run afoul of
the constitutional prohibition on retroactive legislation. See
Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); cf
Stogner v. California, 123 S. Ct. 2446 (2003) (a law enacted
after expiration of a previously applicable limitations period
violates the Ex Post Facto Clause when applied to revive a
previously time-barred criminal prosecution). The Ninth
Circuit, although not deciding the retroactivity issue,
recognized that “[s]uch a revival of liability— even civil
*° The Ma petition alludes to a supposed conflict between the Ninth
Circuit’s decision and the California Court of Appeal decision in
Taihetyo Cement Co. v. Superior Court (Jeong) on the issue of whether
section 354.6 creates a cause of action. See Ma Pet. at 1, 15-16 (arguing
that the “embarrassing conflict” between Taiheiyo and Deutsch adds
“some urgency to the need for this Court’s review”). As petitioners
acknowledge, however (id. at 1), the decision in Taiheiyo has been
superseded by the California Supreme Court’s grant of review. See
Taiheiyo Cement Co. v. Superior Court (Jeong), 66 P.3d 1231 (Cal.
2003), and Cal. Rule of Court 976(c).
.
liability-— is troubling and raises serious due process
questions.” Oh Pet. App. at 14a.
B. Petitioners’ Claims Are Precluded by Japan’s
Treaties with Korea and China
As discussed briefly supra pp. 21-22, the bilateral treaties
Japan entered into with Korea and China, in obedience to the
Allied Treaty and consistent with U.S. foreign policy, all
contain provisions effectively settling and barring ail
war-related claims of Korean and Chinese nationals. The
Japan-Korea Treaty’s waiver of claims provision has also
been implemented through domestic legislation in both
countries. SER 30, 45-71 (Declaration of Akira Kotera,
Professor of International Law at the University of Tokyo);
SER 76-77 (Declaration of Yuji Iwasawa, Professor of
International Law at the University of Tokyo).
C. Petitioners’ Claims Are Nonjusticiable
As discussed briefly above, the negotiations culminating ~
in the Allied Treaty accommodated diverse policies and
interests of both signatory and nonsignatory states, including
Korea and China. Petitioners ask this Court to set aside
these policies and political compromises, the fruits of which
remain the cornerstone of U.S. foreign policy in Asia, and to
put the courts of California in the business of deciding war
claims — an inherently political, nonjudicial realm. This
course is foreclosed by the political question doctrine.
Baker v. Carr, 369 U.S. 186, 210-11 (1962) identified six
indicia of nonjusticiable, political questions; if even one is
present, a case must be dismissed. 369 U.S. at 217. All six
Baker indicia are present here. Matters of war and peace,
including resolution of war claims, are foreign affairs issues
“constitutionally committed” to the political branches, and
the actions of those branches in negotiating and adopting the
Treaty framework required § numerous “policy
determination[s]” that are entitled to “respect” and
ee
“unquestioning adherence.” See id. Not only would it create
a “potentiality of embarrassment from multifarious
pronouncements” for a court to revisit these long-resolved
political issues — as the United States urged below — courts
simply lack the ability to perform the type of political
calculus involved in resolving war claims. See id. The
Treaty framework consists of “reparations agreements which
the United States and other World War II combatants (whose
blood and treasure brought the war of conquest... to an
end) forged in the crucible of a devastated post-war [world]
and in the crucible of the Cold War” — agreements “which
the court does not have the judicial power” to refashion, even
had they the necessary wisdom. Burger-Fischer v. Degussa
AG, 65 F. Supp. 2d 248, 282 (D.N.J. 1999).
Conclusion
The Court should deny the petitions outright. The foreign
affairs analysis of the decision below accords with, and the
judgment is compelled by, Garamendi. Should this Court
nevertheless choose to consider the foreign affairs doctrine
issues raised by petitioners, it should also certify for review
respondents’ alternative grounds for dismissal of the
complaints. :
Respectfully submitted,
Margaret K. Pfeiffer Ame D. Wagner
Joseph J. Reilly Counsel of Record
SULLIVAN & CROMWELL LLP
1701 Pennsylvania Ave., NW
Washington, DC 20006
(202) 956-7500
Counsel for Respondents
Nippon Steel U.S.A., Inc. -
and Nippon Steel Corp.
Kathleen V. Fisher
John A. Kelley
MORRISON & FOERSTER LLP
425 Market Street -
San Francisco, CA 94105
(415) 268-7000
Counsel for Respondents
Mitsubishi Corp. and
Mitsubishi International Corp.
Barbara L. Croutch
PILLSBURY WINTHROP LLP
725 S. Figueroa St., Suite 2800
Los Angeles, CA 90017
(213) 488-7100
Counsel for Respondents
Mitsubishi Heavy Industries
America, Inc. and Mitsubishi
Heavy Industries, Ltd.
Sara D. Schotland
CLEARY, GOTTLIEB, STEEN &
HAMILTON
2000 Pennsylvania Ave., NW
Washington, D.C. 20006
(202) 974-1500
Counsel for Respondent
Showa Denko America, Inc.
A. Victor Antola
Daniel L. Martens
LATHAM & WATKINS
633 West Fifth Street
Suite 400
Los Angeies, CA 99071-2007
(213) 485-1234
Counsel for Respondents
Kajima USA, Inc., Kajima
International, Inc., Kajima
Engineering & Construction,
Inc., Kajima Development
Corp., and Kajima
Construction Services, Inc.
John H. Beisner
John F. Niblock
Pammela Quinn
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006-4001
(202) 383-5300
Counsel for Respondents
Mitsubishi Materials Corp.
and Mitsubishi Materials
U.S.A. Corp.
Bruce E. H. Johnson
DAVIS WRIGHT TREMAINE LLP
1501 Fourth Avenue
2600 Century Square
Seattle, WA 98101
(206) 662-3150
Counsel for Respondents
Mitsubishi Heavy Industries,
Ltd. and Mitsubishi Heavy
Industries America, Inc. (in
Choe)
Nathan Lane III
Joseph A. Meckes
SQUIRE, SANDERS &
DEMPSEY, LLP
One Maritime Plaza, Suite 300
San Francisco, CA 94111
(415) 954-0200
Counsel for Respondents
Paceco Corp. and Mitsui
Engineering & Shipbuilding
Co., Ltd
Arthur W. Harrigan
Garth Wojtanowicz
DANIELSON, HARRIGAN &
TOLLEFSON, LLP
999 Third Avenue, Suite 4400
Seattle, WA 98104
(206) 623-1700
Counsel for Respondents
Mitsubishi Heavy Industries,
Ltd. and Mitsubishi Heavy
Industries America, Inc. (in
Choe)
Stephen V. Bomse
Neil A.F. Popovic
HELLER EHRMAN WHITE &
MCAULIFFE LLP
333 Bush Street
San Francisco, CA 94104-
2878
(415)-772-6000
Counsel for Respondent
Showa Denko America, Inc.
Thomas D. Yannucci, P.C.
Christopher Landau
Brant W. Bishop
KIRKLAND & ELLIS LLP
655 Fifteenth Sireet, N.W.
Suite 1200
Washington, D.C. 20005
(202) 879-5000
Counsel for Respondents
Sumitomo Heavy Industries
(U.S.A.) and Sumitomo Heavy
Industries, Ltd.
Lloyd W. Aubry, Jr.
Kathryn M. Davis
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105
(415) 268-7000
Counsel for Respondents
Ishikawajima-Harima Heavy
Industries Co., Ltd. and IHI,
Inc.
Dated: August 4, 2003
David M. Balabanian
Christopher B. Hockett
Thomas S. Hixson
BINGHAM MCCUTCHEN LLP
3 Embarcadero Center
18th Floor
San Francisco, CA 94111
(415) 393-2000
Counsel for Respondents
Mitsui & Co., Ltd. and Mitsui
& Co. (U.S.A.), Inc.
Matthew E. Digby
Heidi A. Leider
BINGHAM MCCUTCHEN LLP
355 S. Grand Avenue
Suite 4400
Los Angeles, CA 90071
(213) 680-6400
Counsel for Respondents
Mitsui Mining Co., Ltd. and
Mitsui Mining U.S.A., Inc.
APPENDICES
la
Appendix A
TREATY OF PEACE WITH JAPAN
Sept. 8, 1951
San Francisco, California
Whereas the Allied Powers and Japan are resolved that
henceforth their relations shall be those of nations which, as
sovereign equals, cooperate in friendly association to promote
their common welfare and to maintain international peace and
security, and are therefore desirous of concluding a Treaty of
Peace which will settle questions still outstanding as a result of
the existence of a state of war between them;
Whereas Japan for its part declares its intention to apply for
membership in the United Nations and in all circumstances to
conform to the principles of the Charter of the United Nations;
to strive to realize the objectives of the Universal Declaration of
Human Rights; to seek to create within Japan conditions of
stability and well-being as defined in Articles 55 and 56 of the
Charter of the United Nations and already initiated by post-
surrender Japanese legislation; and in public and private trade
and commerce to conform to internationally accepted fair
practices;
Whereas the Allied Powers welcome the intentions of Japan set
out in the foregoing paragraph;
The Allied Powers and Japan have therefore determined to
conclude the present Treaty of Peace, and have accordingly
appointed the undersigned Plenipotentiaries, who, after
presentation of their full powers, found in good and due form,
have agreed on the following provisions:
2a
Appendix A
CHAPTER I
PEACE
Article 1
(a) The state of war between Japan and each of the Allied
Powers is terminated as from the date on which the present
Treaty comes into force between Japan and the Allied Power
concerned as provided for in Article 23.
(b) The Allied Powers recognize the full sovereignty of the
Japanese people over Japan and its territorial waters.
CHAPTER II
TERRITORY
Article 2
(a) Japan recognizing the independence of Korea, renounces all
right, title and claim to Korea, including the islands of Quelpart,
Port Hamilton and Dagelet.
(b) Japan renounces all right, title and claim to Formosa and the
Pescadores.
(c) Japan renounces all right, title and claim to the Kurile
Islands, and to that portion of Sakhalin and the islands adjacent
to it over which Japan acquired sovereignty as a consequence of
the Treaty of Portsmouth of September 5, 1905.
(d) Japan renounces all right, title and claim in connection with
the League of Nations Mandate System, and accepts the action
of the-United Nations Security Council of April 2, 1947,
extending the trusteeship system to the Pacific Islands formerly
under mandate to Japan.
3a
Appendix A
(e) Japan renounces all claim to any right or title to or interest in
connection with any part of the Antarctic area, whether deriving
from the activities of Japanese nationals or otherwise.
(f) Japan renounces all right, title and claim to the Spratly
Islands and to the Paracel Islands.
Article 3
Japan will concur in any proposal of the United States to the
United Nations to place under its trusteeship system, with the
United States as the sole administering authority, Nansei Shoto
south of 29° north latitude (including the Ryukyu Islands and
the Daito Islands), Nanpo Shoto south of Sofu Gan (including
the Bonin Islands, Rosario Island and the Volcano Islands) and
Parece Vela and Marcus Island. Pending the making of such a
proposal and affirmative action thereon, the United States will
have the right to exercise all and any powers of administration,
legislation and jurisdiction over the territory and inhabitants of
these islands, including their territorial waters.
Article 4
(a) Subject to the provisions of paragraph (b) of this Article, the
disposition of property of Japan and of its nationals in the areas
referred to in Article 2, and their claims, including debts,
against the authorities presently administering such areas and
the residents (including juridical persons) thereof, and the
disposition in Japan of property of such authorities and
residents, and of claims, including debts, of such authorities and
residents against Japan and its nationals, shall be the subject of
special arrangements between Japan and such authorities. The
property of any of the Allied Powers or its nationals in the areas
referred to in Article 2 shall, insofar as this has not already been
done, be returned by the administering authority in the
condition in which it now exists. (The term nationals whenever
used in the present Treaty includes juridical persons. )
4a
Appendix A
(b) Japan recognizes the validity of dispositions of property of
Japan and Japanese nationals made by or pursuant to directives
of the United States Military Government in any of the areas
referred to in Articles 2 and 3.
(c) Japanese owned submarine cables connecting Japan with
territory removed from Japanese control pursuant to the present
Treaty shall be equally divided, Japan retaining the Japanese
terminal and adjoining half of the cable, and the detached
territory the remainder of the cable and connecting terminal
facilities.
CHAPTER III
SECURITY
Article 5
(a) Japan accepts the obligations set forth in Article 2 of the
Charter of the United Nations, and in particular the obligations
(i) to settle its international disputes by peaceful means in such
a manner that international peace and security, and justice, are
not endangered;
(ii) to refrain in its international relations from the threat or use
of force against the territorial integrity or political independence
of any State or in any other manner inconsistent with the
Purposes of the United Nations;
(iii) to give the United Nations every assistance in any action it
takes in accordance with the Charter and to refrain from giving
assistance to any State against which the United Nations may
take preventive or enforcement action.
(b) The Allied Powers confirm that they will be guided by the
principles of Article 2 of the Charter of the United Nations in
their relations with Japan.
Sa
Appendix A
(c) The Allied Powers for their part recognize that Japan as a
sovereign nation possesses the inherent right of individual or
collective self-defense referred to in Article 51 of the Charter of
the United Nations and that Japan may voluntarily enter into
collective security arrangements.
Article 6
(a) All occupation forces of the Allied Powers shall be
withdrawn from Japan as soon as possible after the coming into
force of the present Treaty, and in any case not later than 90
days thereafter. Nothing in this provision shall, however,
prevent the stationing or retention of foreign armed forces in
Japanese territory under or in consequence of any bilateral or
multilateral agreements which have been or may be made
between one or more of the Allied Powers, on the one hand, and
Japan on the other.
(b) The provisions of Article 9 of the Potsdam Proclamation of
26 July 1945, dealing with the return of Japanese military forces
to their homes, to the extent not already completed, will be
carried out.
(c) All Japanese property for which compensation has not
already been paid, which was supplied for the use of the
occupation forces and which remains in the possession of those
forces at the time of the coming into force of the present Treaty,
shall be returned to the Japanese Government within the same
90 days unless other arrangements are made by mutual
4 agreement.
CHAPTER IV
POLITICAL AND ECONOMIC CLAUSES
Article 7
(a) Each of the Allied Powers, within one year after the present
Treaty has come into force between it and Japan, will notify
6a
Appendix A
Japan which of its prewar bilateral treaties or conventions with
Japan it wishes to continue in force or revive, and any treaties or
conventions so notified shall continue in force or by revived
subject only to such amendments as may be necessary to ensure
conformity with the present Treaty. The treaties and
conventions so notified shall be considered as having been
continued in force or revived three months after the date of
notification and shall be registered with the Secretariat of the
United Nations. All such treaties and conventions as to which
Japan is not so notified shall be regarded as abrogated.
(b) Any notification made under paragraph (a) of this Article
may except from the operation or-revival of a treaty or
convention any territory for the international relations of which
the notifying Power is responsible, until three months after the
date on which notice is given to Japan that such exception shall
cease to apply.
Article 8
(a) Japan will recognize the full force of all treaties now or
hereafter concluded by the Allied Powers for terminating the ©
state of war initiated on September 1, 1939, as well as any other
arrangements by the Allied Powers for or in connection with the
restoration of peace. Japan also accepts the arrangements made
for terminating the former League of Nations and Permanent
Court of International Justice.
(b) Japan renounces all such rights and interests as it may derive
from being a signatory power of the Conventions of
St. Germain-en-Laye of September 10, 1919, and the Straits
Agreement of Montreux of July 20, 1936, and from Article 16
of the Treaty of Peace with Turkey signed at Lausanne on
July 24, 1923.
(c) Japan renounces all rights, title and interests acquired under,
and is discharged from all obligations resulting from, the
Agreement between Germany and the Creditor Powers of
7a
Appendix A
January 20, 1930 and its Annexes, including the Trust
Agreement, dated 17 May 1930, the Convention of January 20,
1930, respecting the Bank for International Settlements; and the
Statutes of the Bank for International Settlements. Japan will
notify to the Ministry of Foreign Affairs in Paris within six
months of the first coming into force of the present Treaty its
renunciation of the rights, title and interests referred to in this
paragraph.
Article 9
Japan will enter promptly into negotiations with the Allied
Powers so desiring for the conclusion of bilateral and
multilateral agreements providing for the regulation or
limitation of fishing and the conservation and development of
fisheries on the high seas.
Article 10
Japan renounces all special rights and interests in China,
including all benefits and privileges resulting from the
provisions of the final Protocol signed at Peking on
September 7, 1901, and all annexes, notes and documents
Supplementary thereto, and agrees to the abrogation in respect
to Japan of the said protocol, annexes, notes and documents.
Article 1]
Japan accepts the judgments of the International Military
Tribunal for the Far East and of other Allied War Crimes Courts
both within and outside Japan, and will Carry out the sentences
imposed thereby upon Japanese nationals imprisoned in Japan.
The power to grant clemency, to reduce sentences and to parole
with respect to such prisoners may not be exercised except on
the decision of the Government or Governments which imposed
the sentence in each instance, and on recommendation of Japan.
In the case of persons sentenced by the International Military
Tribunal for the Far East, such power may not be exercised
8a
Appendix A
except on the decision of a majority of the weer:
represented on the Tribunal, and on the recommendation
Japan.
Article 12
(a) Japan declares its readiness promptly to enter into
negotiations for the conclusion with each of the Allied Powers
of treaties or agreements to place their trading, maritime and
other commercial relations on a stable and friendly basis.
(b) Pending the conclusion of the relevant treaty or agreement,
Japan will, during a period of four years from the first coming
into force of the present Treaty
(1) accord to each of the Allied Powers, its nationals, products
and vessels
(i) most-favored-nation treatment with respect to customs duties,
charges, restrictions and other regulations on or in connection
with the importation and exportation of goods;
(ii) national treatment with respect to shipping, navigation and
imported goods, and with respect to natural and juridical
persons and their interests - such treatment to include all matters
pertaining to the levying and collection of taxes, access to the
courts, the making and performance of contracts, rights to
property (tangible and intangible), participating in juridical
entities constituted under Japanese law, and generally the
conduct of all kinds of business and professional activities;
(2) ensure that external purchases and sales of Japanese state
trading enterprises shall be based solely on commercial
considerations.
(c) In respect to any matter, however, Japan shall be obliged to
accord to an Allied Power national treatment, or most-favored-
nation treatment, only to the extent that the Allied Power
concerned accords Japan national treatment or most-favored-
2 9a
Appendix A
nation treatment, as the case may be, in respect of the same
matter. The reciprocity envisaged in the foregoing sentence
shall be determined, in the case of products, vessels and
juridical entities of, and persons domiciled in, any non-
metropolitan territory of an Allied Power, and in the case of
juridical entities of, and persons domiciled in, any state or
province of an Allied Power having a federal government, by
reference to the treatment accorded to Japan in such territory,
State or province.
(d) In the application of this Article, a discriminatory measure
shall not be considered to derogate from the grant of national or
most-favored-nation treatment, as the case may be, if such
measure is based on an exception customarily provided for in
the commercial treaties of the party applying it, or on the need
to safeguard that party's external financial position or balance of
payments (except in respect to shipping and navigation), or on
the need to maintain its essential security interests, and provided
Such measure is proportionate to the circumstances and not
applied in an arbitrary or unreasonable manner.
(e) Japan's obligations under this Article shall not be affected by
the exercise of any Allied rights under Article 14 of the present
Treaty; nor shall the provisions of this Article be understood as
limiting the undertakings assumed by Japan by virtue of Article
15 of the Treaty.
Article 13
(a) Japan will enter into negotiations with any of the Allied
Powers, promptly upon the request of such Power or Powers,
for the conclusion of bilateral or multilateral agreements
relating to international civil air transport.
(b) Pending the conclusion of such agreement or agreements,
Japan will, during a period of four years from the first coming
into force of the present Treaty, extend to such Power treatment
not less favorable with respect to air-traffic rights and privileges
10a
Appendix A
than those exercised by any such Powers at the date of such
coming into force, and will accord complete equality of
opportunity in respect to the operation and development of air
services.
(c) Pending its becoming a party to the Convention on
International Civil Aviation in accordance with Article 93
thereof, Japan will give effect to the provisions of that
Convention applicable to the international navigation of aircraft,
and will give effect to the standards, practices and procedures
adopted as annexes to the Convention in accordance with the
terms of the Convention.
CHAPTER V
CLAIMS AND PROPERTY
Article 14
(a) It is recognized that Japan should pay reparations to the
Allied Powers for the damage and suffering caused by it during
the war. Nevertheless it is also recognized that the resources of
Japan are not presently sufficient, if it is to maintain a viable
economy, to make complete reparation for all such damage and
suffering and at the same time meet its other obligations.
Therefore,
1. Japan will promptly enter into negotiations with Allied
Powers so desiring, whose present territories were occupied by
Japanese forces and damaged by Japan, with a view to assisting
to compensate those countries for the cost of repairing the
damage done, by making available the services of the Japanese
people in production, salvaging and other work for the Allied
Powers in question. Such arrangements shall avoid the
imposition of additional liabilities on other Allied Powers, and,
where the manufacturing of raw materials is called for, they
lla
Appendix A
shall be supplied by the Allied Powers in question, so as not to
throw any foreign exchange burden upon Japan.
2. (I) Subject to the provisions of subparagraph (II) below, each
of the Allied Powers shall have the right to seize, retain,
liquidate or otherwise dispose of all property, rights and
interests of
(a) Japan and Japanese nationals,
(b) persons acting for or on behalf of Japan or Japanese
nationals, and
(c) entities owned or controlled by Japan or Japanese nationals,
which on the first coming into force of the present Treaty were
subject to its jurisdiction. The property, rights and interests
specified in this subparagraph shall include those now blocked,
vested or in the possession or under the control of enemy
property authorities of Allied Powers, which belong to, or were
held or managed on behalf of, any of the persons or entities
mentioned in (a), (b) or (c) above at the time such assets came
under the cor-‘rols of such authorities.
(II) The following shall be excepted from the right specified in
subparagraph (I) above:
(i) property of Japanese natural persons who during the war
resided with the permission of the Government concerned in the
territory of one of the Allied Powers, other than territory
occupied by Japan, except property subjected to restrictions
during the war and not released from such restrictions as of the
date of the first coming into force of the present Treaty;
(ii) all real property, furniture and fixtures owned by the
Government of Japan and used for diplomatic or consular
purposes, and all personal furniture and furnishings and other
private property not of an investment nature which was
normally necessary for the carrying out of diplomatic and
12a
Appendix A
consular functions, owned by Japanese diplomatic and consular
personnel;
(iii) property belonging to religious bodies or private charitable
institutions and used exclusively for religious or charitable
purposes;
(iv) property, rights and interests which have come within its
jurisdiction in consequence of the resumption of trade and
financial relations subsequent to September 2, 1945, between
the country concerned and Japan, except such as have resulted
from transactions contrary to the laws of the Allied Power
concerned; —
(v) obligations of Japan or Japanese nationals, any right, title or
interest in tangible property located in Japan, interests in
enterprises organized under the laws of Japan, or any paper
evidence thereof; provided that this exception shall only apply
to obligations of Japan and its nationals expressed in Japanese
currency.
(III) Property referred to in exceptions (i) through (v) above
shall be returned subject to reasonable expenses for its
preservation and administration. If any such property has been
liquidated the proceeds shall be returned instead.
(IV) The right to seize, retain, liquidate or otherwise dispose of
property as provided in subparagraph (I) above shall be
exercised in accordance with the laws of the Allied Power
concerned, and the owner shall have only such rights as may be
given him by those laws.
(V) The Allied Powers agree to deal with Japanese trademarks
and literary and artistic property rights on a basis as favorable to
Japan as circumstances ruling in each country will permit.
(b) Except as otherwise provided in the present Treaty, the
Allied Powers waive all reparations claims of the Allied Powers,
l3a
Appendix A
other claims of the Allied Powers and their nationals arising out
of any actions taken by Japan and its nationals in the course of
the prosecution of the war, and claims of the Allied Powers for
direct military costs of occupation.
Article 15
(a) Upon application made within nine months of the coming
into force of the present Treaty between Japan and the Allied
Power concerned, Japan will, within six months of the date of
such application, return the property, tangible and intangible,
and all rights or interests of any kind in Japan of each Allied
Power and its nationals which was within Japan at any time
between December 7, 1941 and September 2, 1945, unless the
owner has freely disposed thereof without duress or fraud. Such
property shall be returned free of all encumbrances and charges
to which it may have become subject because of the war, and
without any charges for its return. Property whose return is not
applied for by or on behalf of the owner or by his Government
within the prescribed period may be disposed of by the Japanese
Government as it may determine. In cases where such property
was within Japan on December 7, 1941, and cannot be returned
or has suffered injury or damage as a result of the war,
compensation will be made on terms not less favorable than the
terms provided in the draft Allied Powers Property
Compensation Law approved by the Japanese Cabinet on
July 13, 1951.
(b) With respect to industrial property rights impaired during
the war, Japan will continue to accord to the Allied Powers and
their nationals benefits no less than those heretofore accorded
by Cabinet Orders No. 309 effective September 1, 1949, No. 12
effective January 28, 1950, and No. 9 effective February 1,
1950, all as now amended, provided such nationals have applied
for such benefits within the time limits prescribed therein.
(c) (i) Japan acknowledges that the literary and artistic property
rights which existed in Japan on December 7, 1941, in respect
TS ET STL aT eee oe oe
l4a
Appendix A
to the published and unpublished works of the Allied Powers
and their nationals have continued in force since that date, and
recognizes those rights which have arisen, or but for the war
would have arisen, in Japan since that date, by the operation of
any conventions and agreements to which Japan was a party on
that date, irrespective of whether or not such conventions or
agreements were abrogated or suspended upon or since the
outbreak of war by the domestic law of Japan or of the Allied
Power concerned.
(ii) Without the need for application by the proprietor of the
right and without the payment of any fee or compliance with
any other formality, the period from December 7, 1941, until
the coming into force of the present Treaty between Japan and
the Allied Power concerned shall be excluded from the running
of the normal term of such rights; and such period, with an
additional period of six months, shall be excluded from the time
within which a literary work must be translated into Japanese in
order to obtain translating rights in Japan.
Article 16
As an expression of its desire to indemnify those members of
the armed forces of the Allied Powers who suffered undue
hardships while prisoners of war of Japan, Japan will transfer its
assets and those of its nationals in countries which were neutral
during the war, or which were at war with any of the Allied
Powers, or, at its option, the equivalent of such assets, to the
International Committee of the Red Cross which shall liquidate
such assets and distribute the resultant fund to appropriate
national agencies, for the benefit of former prisoners of war and
their families on such basis as it may determine to be equitable.
The categories of assets described in Article 14(a)2(II)(ii)
through (v) of the present Treaty shall be excepted from transfer,
as well as assets of Japanese natural persons not residents of
Japan on the first coming into force of the Treaty. It is equally
understood that the transfer provision of this Article has no
15a
Appendix A
application to the 19,770 shares in the Bank for International
Settlements presently owned by Japanese financial institutions.
Article 17
(a) Upon the request of any of the Allied Powers, the Japanese
Government shall review and revise in conformity with
international law any decision or order of the Japanese Prize
Courts in cases involving ownership rights of nationals of that
Allied Power and shall supply copies of all documents
comprising the records of these cases, including the decisions
taken and orders issued. In any case in which such review or
revision shows that restoration is due, the provisions of Article
15 shall apply to the property concerned.
(b) The Japanese Government shall take the necessary measures
to enable nationals of any of the Allied Powers at any time
within one year from the coming into force of the present Treaty
between Japan and the Allied Power concerned to submit to the
appropriate Japanese authorities for review any judgment given
by a Japanese court between 7 December 1941 and such coming
into force, in any proceedings in which any such national was
unable to make adequate presentation of his case either as
plaintiff or defendant. The Japanese Government shall provide
that, where the national has suffered injury by reason of any
such judgment, he shall be restored in the position in which he
was before the judgment was given or shall be afforded such
relief as may be just and equitable in the circumstances.
Article 18
(a) It is recognized that the intervention of the state of war has
not affected the obligation to pay pecuniary debts arising out of
obligatior’ and contracts (including those in respect of bonds)
which existed and rights which were acquired before the
existence of a state of war, and which are due by the
Government or nationals of Japan to the Government or
nationals of one of the Allied Powers, or are due by the
l6a
Appendix A
Government or nationals of one of the Allied Powers to the
Government or nationals of Japan. The intervention of a state of
war shall equally not be regarded as affecting the obligation to
consider on their merits claims for loss or damage to property or
for personal injury or death which arose before the existence of
a state of war, and which may be presented or re-presented by
the Government of one of the Allied Powers to the Government
of Japan, or by the Government of Japan to any of the
Governments of the Allied Powers. The provisions of this
paragraph are without prejudice to the rights conferred by
Article 14.
(b) Japan affirms its liability for the prewar external debt of the
Japanese State and for debts of corporate bodies subsequently
declared to be liabilities of the Japanese State, and expresses its
intention to enter into negotiations at an early date with its
creditors with respect to the resumption of payments on those
debts; to encourage negotiations in respect to other prewar
claims and obligations; and to facilitate the transfer of sums
accordingly.
Article 19
(a) Japan waives all claims of Japan and its nationals against the
Allied Powers and their nationals arising out of the war or out
of actions taken because of the existence of.a state of war, and
waives all claims arising from the presence, operations or
actions of forces or authorities of any of the Allied Powers in
Japanese territory prior to the coming into force of the present
Treaty.
(b) The foregoing waiver includes any claims arising out of
actions taken by any of the Allied Powers with respect to
Japanese ships between September 1, 1939, and the coming into
force of the present Treaty, as well as any claims and debts
arising in respect to Japanese prisoners of war and civilian
internees in the hands of the Allied Powers, but does not include
17a
Appendix A
Japanese claims specifically recognized in the laws of any
Allied Power enacted since September 2, 1945.
(c) Subject to reciprocal renunciation, the Japanese Government
also renounces all claims (including debts) against Germany
and German nationals on behalf of the Japanese Government
and Japanese nationals, including intergovernmental claims and
claims for loss or damage sustained during the war, but
excepting (a) claims in respect of contracts entered into and
rights acquired before September 1, 1939, and (b) claims arising
out of trade and financial relations between Japan and Germany
after September 2, 1945. Such renunciation shall not prejudice
actions taken in accordance with Articles 16 and 20 of the
present Treaty.
(d) Japan recognizes the validity of all acts and omissions done
during the period of occupation under or in consequence of
directives of the occupation authorities or authorized by
Japanese law at that time, and will take no action subjecting
Allied nationals to civil or criminal liability arising out of such
acts Or omissions.
Article 20
Japan will take all necessary measures to ensure such
disposition of German assets in Japan as has been or may be
determined by those powers entitled under the Protocol of the
proceedings of the Berlin Conference of 1945 to dispose of
those assets, and pending the final disposition of such assets
will be responsible for the conservation and administration
thereof.
Article 21
Notwithstanding the provisions of Article 25 of the present
Treaty, China shall be entitled to the benefits of Articles 10 and
14(a)2; and Korea to the benefits of Articles 2, 4, 9 and 12 of
the present Treaty.
18a
Appendix A
CHAPTER VI
SETTLEMENT OF DISPUTES
Article 22
If in the opinion of any Party to the present Treaty there has
arisen a dispute concerning the interpretation or execution of the
Treaty, which is not settled by reference to a special claims
tribunal or by other agreed means, the dispute shall, at the
request of any party thereto, be referred for decision to the
International Court of Justice. Japan and those Allied Powers
which are not already parties to the Statute of the International
Court of Justice will deposit with the Registrar of the Court, at
the time of their respective ratifications of the present Treaty,
and in conformity with the resolution of the United Nations
Security Council, dated October 15, 1946, a general declaration
accepting the jurisdiction, without special agreement, of the
Court generally in respect to all disputes of the character
referred to in this Article.
CHAPTER VII
FINAL CLAUSES
Article 23
(a) The present Treaty shall be ratified by the States which sign
it, including Japan, and will come into force for all the States
which have then ratified it, when instruments of ratification
have been deposited by Japan and by a majority, including the
United States of America as the principal occupying Power, of
the following States, namely Australia, Canada, Ceylon, France,
Indonesia, the Kingdom of the Netherlands, New Zealand,
Pakistan, the Republic of the Philippines, the United Kingdom
of Great Britain and Northern Ireland, and the United States of
America. The present Treaty shall come into force of each State
19a
Appendix A
which subsequently ratifies it, on the date of the deposit of its
instrument of ratification.
(b) If the Treaty has not come into force within nine months
after the date of the deposit of Japan's ratification, any State
which has ratified it may bring the Treaty into force between
itself and Japan by a notification to that effect given to the
Governments of Japan and the United States of America not
later than three years after the date of deposit of Japan's
ratification.
Article 24
All instruments of ratification shall be deposited with the
Government of the United States of America which will notify
all the signatory States of each such deposit, of the date of the
coming into force of the Treaty under paragraph (a) of Article
23, and of any notifications made under paragraph (b) of Article
23.
Article 25
For the purposes of the present Treaty the Allied Powers shall
be the States at war with Japan, or any State which previously
formed a part of the territory of a State named in Article 23,
provided that in each case the State concerned has signed and
ratified the Treaty. Subject to the provisions of Article 21, the
present Treaty shall not confer any rights, titles or benefits on
any State which is not an Allied Power as herein defined; nor
shall any right, title or interest of Japan be deemed to be
diminished or prejudiced by any provision of the Treaty in favor
of a State which is not an Allied Power as so defined.
Article 26
Japan will be prepared to conclude with any State which signed
or adhered to the United Nations Declaration of J anuary 1, 1942,
and which is at war with Japan, or with any State which
20a
Appendix A
previously formed a part of the territory of a State named in
Article 23, which is not a signatory of the present Treaty, a
bilateral Treaty of Peace on the same or substantially the same
terms as are provided for in the present Treaty, but this
obligation on the part of Japan will expire three years after the
first coming into force of the present Treaty. Should Japan
make a peace settlement or war claims settlement with any State
granting that State greater advantages than those provided by
the present Treaty, those same advantages shall be extended to
the parties to the present Treaty.
Article 27
The present Treaty shall be deposited in the archives of the
Government of the United States of America which shall
furnish each signatory State with a certified copy thereof.
2la
Appendix B
AGREEMENT ON THE SETTLEMENT OF PROBLEMS
CONCERNING PROPERTY AND CLAIMS AND ON
THE ECONOMIC CO-OPERATION BETWEEN JAPAN
AND THE REPUBLIC OF KOREA
June 22, 1965
Tokyo, Japan
Japan and the Republic of Korea,
Desiring to settle [the] problem concerning property of the two
countries and their nationals and claims between the two
countries and their nationals; and
Desiring to promote the economic co-operation between the two
countries;
Have agreed as follows:
Article I
1. To the Republic of Korea Japan shall:
(a) Supply the products of Japan and the services of the
Japanese people, the total value of which will be so much in yen
as shall be equivalent to three hundred million United States
dollars ($300,000,000) at present Computed at one hundred and
eight billion yen (¥108,000,000,000), in grants [on a non-
repayable basis] within the period of ten years from the date of
the entry into force of the present Agreement. The supply of
such products and services in each year shall be limited to [shall
be such] such amount in yen as shall be equivalent to thirty
million United States dollars ($30,000,000) at present computed
at ten billion eight hundred million yen (¥10,800,000,000); in
case the supply of any one year falls short of the set amount, the
remainder shall be added to the amounts of the supplies for the
next and subsequent years. However, the ceiling on the amount
22a
Appendix B
of the supply for any one year can be raised [increased] by
agreement between the Governments of the Contracting Parties.
(b) Extend long-term and low-interest loans up to such
amount in yen as shall be equivalent to two hundred million
United States dollars ($200,000,000) at present computed at
seventy-two billion yen (¥72,000,000,000), which _ the
Government of the Republic of Korea may request and which-
shall be used for the procurement by the Republic of Korea of
the products of Japan and the services of the Japanese people
necessary in implementing the projects to be determined in
accordance with arrangements to be concluded under the
provisions of paragraph 3 of the present Article, within the
period of ten years from the date of the entry into force of the
present Agreement. Such loans shall be extended by the
Overseas Economic Co-operation Fund of Japan, and the
Government of Japan shall take necessary measures in order
that the said Fund will be able to secure the necessary funds for
implementing the loans evenly each year.
The above-mentioned supply and loans should be such that will
be conducive to the economic development of the Republic of
Korea.
2. The Governments of the Contracting Parties shall establish,
as an organ of consultation between the two Governments with
powers to recommend on matters concerning the
implementation of the provisions of the present Article, a Joint
Committee composed of representatives of the two
Governments.
3. The Governments of the Contracting Parties shall conclude
necessary arrangements for the implementation of the
provisions of the present Article.
23a
Appendix B
Article II
1. The Contracting Parties confirm that [the] problem
concerning property, rights and interests of the two Contracting
Parties and their nationals (including juridical persons) and
concerning claims between the Contracting Parties and their
nationals, including those provided for in Article IV, paragraph
(a) of the Treaty of Peace with Japan signed at the city of San
Francisco on September 8, 1951, is settled completely and
finally.
2. The provisions of the present Article shall not affect the
following (excluding those subject to the special measures
which the respective Contracting Parties have taken by the date
of the signing of the present Agreement):
(a) Property, rights and interests of those nationals of either
Contracting Party who have ever resided in the other country in
the period between August 15, 1947, and the date of the signing
of the present Agreement;
(b) Property, rights and interests of either Contracting Party
and its nationals, which have been acquired or have come
within the jurisdiction of the other Contracting Party in the
course of normal contacts on or after August 15, 1945.
3. Subject to the provisions of paragraph 2, no contention shall
be made with respect to the measures on property, rights and
interests of either Contracting Party and its nationals which are
within the jurisdiction of other Contracting Party on the date of
the signing of the present Agreement, or with respect to any
claims of either Contracting Party and its nationals against the
other Contracting Party and its nationals arising from the causes
which occurred on or before the said date.
24a
Appendix B
Article III
1. Any dispute between the Contracting Parties concerning the
interpretation and implementation of the present Agreement
shall be settled, first of all, through diplomatic channels.
2. Any dispute which fails to be settled under the provision of
paragraph 1 shall be referred for decision to an arbitration
board composed of three arbitrators, one to be appointed by the
Government of each Contracting Party within a period of thirty
days from the date of receipt by the Government of either
Contracting Party from the Government of the other of a note
requesting arbitration of the dispute, and the third to be agreed
upon by the two arbitrators so chosen within a further period of
thirty days or the third arbitrator to be appointed by the
government of a third country agreed upon within such further
period by the two arbitrators, provided that the third arbitrator
shall not be a national of either Contracting Party. ©
3. If, within the periods respectively referred to, the
Government of either Contracting Party fails to appoint an
arbitrator, or the third arbitrator or a third country is not agreed
upon, the arbitration board shall be composed of the two
arbitrators to be designated by each of the governments of the
twe countries respectively chosen by the Governments of the
Contracting Parties within a period of thirty days and the third
arbitrator to be designated by the government of a third country
to be determined upon consultation between the governments so
chosen.
4. The Governments of the Contracting Parties shall abide by
any award made by the arbitration board under the provisions of
the present Article.
Article IV
The present Agreement shall be ratified. The instruments of
ratification shall be exchanged at Seoul as soon as possible. The
25a
Appendix B
present Agreement shall enter into force on the date of the
exchange of the instruments of ratification.
IN WITNESS WHEREOF, the undersigned, being duly
authorized thereto by their respective Governments, have signed
the present Agreement.
DONE in duplicate at Tokyo, in the Japanese and Korean
languages, both being equally authentic, this twenty-second day
of June of the year one thousand nine hundred and sixty-five.
For Japan: For the Republic of Korea:
Etsusaburo Shiina Tong Won Lee
Shinichi Takasugi Dong Jo Kim
26a
Appendix C
TREATY OF PEACE BETWEEN THE
REPUBLIC OF CHINA AND JAPAN
April 28, 1952
Taipei, Taiwan
The Republic of China and Japan,
Considering their mutual desire for good neighborliness in
view of their historical and cultural ties and geographical
proximity;
Realizing the importance of their close cooperation to the
promotion of their common welfare and to the maintenance of
international peace and security;
Recognizing the need of a settlement of problems that have
arisen as a result of the existence of a state of war between them;
Have resolved to conclude a Treaty of Peace and have
accordingly appointed as their Plenipotentiaries,
His Excellency the President of the Republic of China:
Mr. Yeh Kung Chao;
_ The Government of Japan: Mr. Isao Kawada;
Who, having communicated to each other their full powers
found to be in good and due form, have agreed upon the
following articles:
27a
Appendix C
Article I
The state of war between the Republic of China and Japan is
terminated as frorn the date on which the present Treaty enters
into force.
Article IT
It is recognized that under Article 2 of the Treaty of Peace
with Japan signed at the city of San Francisco in the United
States of America on September 8, 1951 (hereinafter referred to
as the San Francisco Treaty), Japan has renounced all right, title
and claim to Taiwan (Formosa) and Penghu (the Pescadores) as
well as the Spratly Islands and the Paracel Islands.
\ Article IIT
The disposition of property of Japan and its nationals in
Taiwan (Formosa) and Penghu (the Pescadores), and their
claims, including debts, against the authorities of the Republic
of China in Taiwan (Formosa) and Penghu (the Pescadores) and
the residents thereof, and the disposition in Japan of property of
such authorities and residents and their claims, including debts,
against Japan and its nationals, shall be the subject of special
arrangements between the Government of the Republic of
China and the Government of Japan. The terms nationals and
residents whenever used in the present Treaty include juridical
persons.
Article IV
It is recognized that all treaties, conventions and agreements
concluded before December 9, 1941, between China and Japan
have become null and void as a consequence of the war.
Article V
It is recognized that under the provisions of Article 10 of the
San Francisco Treaty, Japan has renounced all special rights and
28a
Appendix C
its interests in China, including all benefits and privileges
resulting from the provisions of the final Protocol signed at
Peking on September 7, 1901, and all annexes, notes and
documents supplementary thereto, and has agreed to the
abrogation in respect to Japan of the said protocol, annexes,
notes and documents.
Article VI
(a) The Republic of China and Japan will be guided by the
principles of Article 2 of the Charter of the United Nations in
their mutual relations.
(b) The Republic of China and Japan will cooperate in
accordance with the principles of the Charter of the United
Nations and, in particular, will promote their common welfare
through friendly cooperation in the economic field.
Article VII
The Republic of China and Japan will endeavor to conclude,
as soon as possible, a treaty or agreement to place their trading,
maritime and other commercial relations, on a stable and
friendly basis.
Article VIII
The Republic of China and Japan will endeavor to conclude,
as soon as possible, an agreement relating to civil air transport.
Article IX
The Republic of China and Japan will endeavor to conclude,
as soon as possible, an agreement providing for the regulation
or limitation of fishing and the conservation and development
of fisheries on the high seas.
29a
Appendix C
Article X
For the purposes of the present Treaty, nationals of the
Republic of China shall be deemed to include all the inhabitants
and former inhabitants of Taiwan (Formosa) and Penghu (the
Pescadores) and their descendents who are of the Chinese
nationality in accordance with the laws and regulations which
have been or may hereafter be enforced by the Republic of
China in Taiwan (Formosa) and Penghu (the Pescadores); and
juridical persons of the Republic of China shall be deemed to
include all those registered under the laws and regulations
which have been or may hereafter be enforced by the Republic
of China in Taiwan (Formosa) and Penghu (the Pescadores).
Article XI
Unless otherwise provided for in the present Treaty and the
documents supplementary thereto, any problem arising between
the Republic of China and Japan as a result of the existence of a
state of war shall be settled in accordance with the relevant
provisions of the San Francisco Treaty.
Article XII
Any dispute that may arise out of the interpretation or
application of the present Treaty shall be settled by negotiation
or other pacific means.
Article XIII
The present Treaty shall be ratified and the instruments of
ratification shall be exchanged at Taipei as soon as possible.
The present Treaty shall enter into force as from the date on
which such instruments of ratification are exchanged.
30a
Appendix C
Article XIV
The present Treaty shall be in the Chinese, Japanese, and
English languages. In case of any divergence of interpretation,
the English text shall prevail.
IN WITNESS WHEREOF, the respective Plenipotentiaries
have signed the present Treaty and have affixed thereto their
seals.
DONE in duplicate at Taipei, this Twenty Eighth day of the
Fourth month of the Forty First year of the Republic of China,
corresponding to the Twenty Eighth day of the Fourth month of
the Twenty Seventh year of Showa of Japan and to the Twenty
Eighth day of April in the year One Thousand Nine Hundred
and Fifty Two.
For the Republic of China: For Japan:
Yeh Kung Chao Isao Kawada
rrr oe ee Pe ae Tene miter ge}
3la
Appendix D
JOINT COMMUNIQUE OF THE GOVERNMENT
OF JAPAN AND THE GOVERNMENT OF
THE PEOPLE’S REPUBLIC OF CHINA
September 29, 1972
Peking, People’s Republic of China
Prime Minister Kakuei Tanaka of Japan visited the
People’s Republic of China at the invitation of Premier of the
State Council Chou En-lai of the People’s Republic of China
from September 25 to September 30, 1972. Accompanying
Prime Minister Tanaka were Minister for Foreign Affairs
Masayoshi Ohira, Chief Cabinet Secretary Susumu Nikaido and
other government officials.
Chairman Mao Tse-tung met Prime Minister Kakuei Tanaka on
September 27. They had an earnest and friendly conversation.
Prime Minister Tanaka and Minister for Foreign Affairs Ohira
had an earnest and frank exchange of views with Premier Chou
En-lai and Minister for Foreign Affairs Chi Peng-fei in a
friendly atmosphere throughout on the question of the
normalization of relations between Japan and China and other
problems between the two countries as well as on other matters
of interest to both sides, and agreed to issue the following Joint
Communiqué of the two Governments:
Japan and China are neighboring countries, separated only by a
strip of water with a long history of traditional friendship. The
peoples of the two countries earnestly desire to put an end to the
abnormal state of affairs that has hitherto existed between the
two countries. The realization of the aspiration of the two
peoples for the termination of the state of war and the
normalization of relations between Japan and China will add a
new page to the annals of relations between the two countries.
The Japanese side is keenly conscious of the responsibility for
the serious damage that Japan caused in the past to the Chinese
32a
Appendix D
people through war, and deeply reproaches itself. Further, the
Japanese side reaffirms its position that it intends to realize the
normalization of relations between the two countries from the
stand of fully understanding “the three principles for the
restoration of relations” put forward by the Government of the
People’s Republic of China. The Chinese side expresses its
welcome for this.
In spite of the differences in their social systems existing
between the two countries, the two countries should, and can,
establish relations of peace and friendship. The normalization of
relations and development of good-neighborly and friendly
relations between the two countries are in the interests of the
two peoples and will contribute to the relaxation of tension in
Asia and peace in the world.
1. The abnormal state of affairs that has hitherto
existed between Japan and the People’s Republic of China is
terminated on the date on which this Joint Communiqué is
issued.
2. The Government of Japan recognizes that
Government of the People’s Republic of China as the sole legal
Government of China.
3. The Government of the People’s Republic of China
reiterates that Taiwan is an inalienable part of the territory of
the People’s Republic of China. The Government of Japan fully
understands and respects this stand of the Government of the
People’s Republic of China, and it firmly maintains its stand
under Article 8 of the Potsdam Proclamation.
4. The Government of Japan and the Government of
People’s Republic of China have decided to establish
diplomatic relations as from September 29, 1972. The two
Governments have decided to take all necessary measures for
the establishment and the performance of the functions of each
other’s embassy in their respective capitals in accordance with
33a
Appendix D
international law and practice, and to exchange ambassadors as
speedily as possible.
5. The Government of the People’s Republic of China
declares that in the interest of the friendship between the
Chinese and the Japanese peoples, it renounces its demand for
war reparation from Japan.
6. The Government of Japan and the Government of
the People’s Republic of China agree to establish relations of
perpetual peace and friendship between the two countries on the
basis of the principles of mutual respect for sovereignty and
territorial integrity, mutual non-aggression, non-interference in
each other’s internal affairs, equality and mutual benefit and
peaceful co-existence.
The two Governments confirm that, in conformity with
the foregoing principles and the principles of the Charter of the
United Nations, Japan and China shall in their mutual relations
settle all disputes by peaceful means and shall refrain from the
use or threat of force.
7. The normalization of relations between Japan and
China is not directed against any third country. Neither of the
two countries should seek hegemony in the Asia-Pacific region
and each is opposed to efforts by any other country or group of
countries to establish such hegemony.
8. The Government of Japan and the Government of
the People’s Republic of China have agreed that, with a view to
solidifying and developing the relations of peace and friendship
between the two countries, the two Governments will enter into
negotiations for the purpose of concluding a treaty of peace and
friendship.
9. The Government of Japan and the Government of
the People’s Republic of China have agreed that, with a view to
further promoting relations between the two countries and to
34a
Appendix D
expanding interchanges of people, the two Governments will, as
necessary and taking account of the existing non-governmental
arrangements, enter into negotiations for the purpose of
concluding agreements concerning such matters as trade,
shipping, aviation, and fisheries.
Done at Peking, September 29, 1972
Prime Minister of Japan
Minister for Foreign Affairs of Japan
Premier of the State Council of the People’s Republic of China
Minister for Foreign Affairs of the People’s Republic of China
~ 35a
Appendix E
TREATY OF PEACE AND FRIENDSHIP BETWEEN
THE PEOPLE’S REPUBLIC OF CHINA AND JAPAN
August 12, 1978
_ Peking, People’s Republic of China
The People’s Republic of China and Japan,
Recalling with satisfaction that since the Government of
the People’s Republic of China and the Government of Japan
issued a Joint Statement in Peking on September 29, 1972, the
friendly relations between the two Governments and the peoples
of the two countries have developed greatly on a new basis,
Confirming that the above-mentioned Joint Statement
constitutes the basis of the relations of peace and friendship
between the two countries and that the principles enunciated in
the Joint Statement should be strictly observed,
Confirming that the principles of the Charter of the
United Nations should be fully respected,
Hoping to contribute to peace and stability in Asia and
in the world,
For the purpose of solidifying and developing the
relations of peace and friendship between the two countries,
Have resolved to conclude a Treaty of Peace and
Friendship and for that purpose have appointed as their
Plenipotentiaries:
The People’s Republic of China:
Huang Hua, Minister for Foreign Affairs
Japan:
Sunao Sonoda, Minister for F oreign Affairs
36a
Appendix E
Who, having communicated to each other their full
powers, found to be in good and due form, have agreed as
follows:
Article I
1. The Contracting Parties shall develop durable relations of
peace and friendship between the two countries on the basis of
the principles of mutual respect for sovereignty and territorial
integrity, mutual non-aggression, non-interference in each
other’s internal affairs, equality and mutual benefit and peaceful
coexistence.
2. In keeping with the foregoing principles and the principles
of the United Nations Charter, the Contracting Parties affirm
that in their mutual relations, all disputes shall be settled by
peaceful means without resorting to the use or threat of force.
Article II
The Contracting Parties declare that neither of them should
seek hegemony in the Asia-Pacific region or in any other region
and that each is opposed to efforts by any other country or
group of countries to establish such hegemony.
Article III
The Contracting Parties shall, in a good-neighbourly and
friendly spirit and in conformity with the principles of equality
_ and mutual benefit and non-interference in each other’s internal
affairs, endeavour to further develop economic and cultural
relations between the two countries and to promote exchanges
between the peoples of the two countries.
Article IV
The present Treaty shall not affect the position of either
Contracting Party regarding its relations with third countries.
Most y 5
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» > we ee Atnth A Soh A De Y8 hog ea TL lr AME ate SIs are ete
hh A nb ARN a TPR tabs Me oeg i PULA GRETA Roahe peat a els RE GORE
Ae ee PY
37a
Appendix E
Article V
1. The present Treaty shall be ratified and shall enter into force
on the date of the exchange of instruments of ratification which
shall take place at Tokyo. The present Treaty shall remain in
force for ten years and thereafter shall continue to be in force
until terminated in accordance with the provisions of
paragraph 2 of this Article.
2. Either Contracting Party may, by giving one year’s written
notice to the other Contracting Party, terminate the present
Treaty at the end of the initial ten-year period or at any time
thereafter.
li: witness whereof the respective Plenipotentiaries have
signed the present Treaty and have affixed thereto their seals.
Done in duplicate in the Chinese and Japanese
languages, both texts being equally authentic, at Peking, this
twelfth day of August 1978.
For the People’s Republic of China: For Japan:
Huang Hua Sunao Sonoda
38a
Appendix F
Nos. 01-17197, 01-17201, 01-17203, 01-17207
01-17211, 01-17243, and 01-17251
IN THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
SUK YOON KIM, et al.,
Plaintiffs-Appellants,
V.
ISHKAWAJIMA HIRIMA HEAVY INDUS. CO., LTD., et al.,
Defendants-Appellees.
BRIEF FOR AMICUS CURIAE THE UNITED STATES
OF AMERICA CONCERNING GROUP 4
IN SUPPORT OF AFFIRMANCE
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, THE HONORABLE VAUGHN R. WALKER
Of Counsel: ROBERT D. McCALLUM, JR.
Assistant Attorney General
JAMES G. HERGEN
LARA A. BALLARD DAVID W. SHAPIRO
United States Dept. of State United States Attorney
Office of the Legal Advisor
Washington, D.C. 20037
39a
Appendix F
MARK B. STERN
DOUGLAS HALLWARD-DRIEMEIER
Attorneys, Appellate Staff
Civil Division, Room 9113
Department of Justice
Washington, DC 20530-0001
Tel: (202) 514-5735
Fax: (202) 514-9405
Attorneys for the United States
40a
Appendix F
Table of Contents
I eivnsnincesetevincncianniniontdsinnieisininemieacnaennenianbalmaneets 42a
I siscrseisssssicsccpniniscsaicsinsiinsccslipibapiniissiaidaaalaniainiasiaibimilimainni 42a
ER re Sy OE I iiss 42a
2. California’s World War II Forced Labor
ID recsnrsnrvonsntsuinvoinsapisannsiendanittanianmcaitenntibucteciondinin 47a
3. Proceedings in the District Court .......... ee 48a
Ce Ra TI He 49a
PUTT circ ciectsitcintientanieiarnadhdbeenteabiiaiabptudmtianeaemaeate 50a
I. THE CONSTITUTION PRECLUDES
CALIFORNIA FROM INTERFERING IN THE
FEDERAL GOVERNMENT'S
DETERMINATION THAT PLAINTIFFS’
CLAIMS SHOULD BE RESOLVED THROUGH
GOVERNMENT-TO-GOVERNMENT
PTE scenic nantiulmninnniantinanamiminniinnaitih 50a
A. The Constitution Vests Full and Exclusive
Responsibility For Foreign Relations In The
ee « ibianedhniaiaunicaliiiasiaileen 50a
B. Federal Law Preempts California’s Forced
Labor Statute, Which Stands As An
Obstacle To Achieving The United States’
Foreign Policy Established In The 1951
I asiicievicaiacheenicetncesittacteenteinsigsenguitaieanenpiciie 53a
4la
Appendix F
C. Even if Not Affirmatively Preempted, the
California Forced Labor Statute Is an
Unconstitutional Intrusion Into the Conduct
| _____EREIte nn HTieTRa 56a
ll. THE CALIFORNIA WORLD WAR II FORCED
LABOR STATUTE IS EXTRATERRITORIAL
LEGISLATION THAT IS BEYOND THE
AUTHORITY OF THE STATE TO ENACT.........ccccecceceees 62a
a eI acts copie seescssiasesrebselilecnia scant habbia tela 67a
42a
Appendix F
INTRODUCTION
The Constitution assigns to the Federal Government
exclusive responsibility for conducting the nation’s foreign
policy. At the conclusion of World War II, the President and
Senate determined that the United States’ interests in security
and stability in Asia would be best served by rebuilding Japan
into a strong, democratic ally. They recognized that this would
not be possible as long as Japan and its industrial base were
subject to ongoing compensation claims arising out of the war.
At the same time, the United States insisted that Japan pay some
compensation for the untold injury it had caused during the war.
Balancing these interests, the Treaty of Peace between the
United States, other Allied nations, and Japan, provided for
resolution, on a government-to-government basis, of all war
related claims and, in return, required Japan to relinquish
billions of dollars in foreign assets to those who had suffered at
the hands of the Japanese.
Now, half a century after the war’s end, the California
legislature has adopted a statute that encourages litigation of ~
precisely those claims that the Treaty provided should be
resolved by inter-governmental arrangement. California’s
World War Il forced labor statute goes far beyond the State’s
legitimate domestic interests and interferes in a direct and
significant way in matters of foreign relations, undermining in
the process long-established federal policy.
BACKGROUND
1. The 1951 Treaty of Peace.
The Treaty of Peace signed on September 8, 1951 between
the United States, 47 other Allied powers, and Japan formally
concluded World War II with respect to the Pacific Theater.
See 3 U.S.T. 3169. The Treaty reflects the United States
43a
Appendix F
government’s foreign policy determination that all war-related
claims against Japan and its nationals — including private
claims and including the claims of those whose governments
were not party to the Treaty— should be resolved by
government-to government agreement rather than litigation.’
John Foster Dulles, the United States’ principal negotiator,
believed that continued demands for war claims compensation
would prevent Japan’s economic recovery and its development
into a reliable democratic ally against communism. The Korean
War had begun; communist forces had taken control of the
Chinese mainland; and Soviet expansionism was a world-wide
threat. Japan was at the center of these geopolitical forces. The
United States viewed an economically stable, anti-communist
Japan as essential to the United States’ interests in the Pacific
region. Japan could not play that role if it were subject to
continuing war-related claims that might stifle its economy. See
generally August 2000 Statement, 3-7 [Signatory SER 340-44].
Nor did the United States and the Allies want to repeat the
experience of the Versailles Treaty after World War I, which
many consider to be one of the root causes of World War II.
See generally id. at 4-6 [Signatory SER 341-43]. Finally, the
United States government, having assumed sole responsibility
for Japan’s recovery during the occupation of Japan following
the war, concluded that any substantial payment of war-related
claims ultimately would come out of the pockets of the
American taxpayers. See ibid. For these reasons, the President,
and the Senate in its advise-and-consent role, determined that
' The history of the 1951 Treaty is discussed in much greater detail, with
extensive citations to the historical record, in the August 9, 2000, and
December 6, 2000, Statements of Interest filed by the United States with
the district court. See Supplemental Excerpts of Record Concerning
Groups 1, 2, & 3 [Signatory SER], 328 (“August 2000 Statement”);
Supplemental Excerpts of Record filed in Kim et al [Non-Signatory SER],
498 (“December 2000 Statement”).
44a
Appendix F
all claims against Japan and its nationals should be waived in
exchange for the forfeiture by Japan and its nationals of their
foreign assets.
The Allied nations that are parties to the Treaty, including
the United States, expressly waived all claims that they or their
nationals might have against Japan and its nationals arising out
of the war. Article 14 of the Treaty authorized Allied
governments “to seize * * * all property, rights and interests of
* * * Japan and Japanese Nationals” located in the Allies’
respective jurisdictions in exchange for a commitment by Japan
to help rebuild the territory it had occupied and a waiver of
claims by Allied governments and their nationals against Japan
and Japanese nationals. Art. 14. The waiver provision states:
Except as otherwise provided in the present Treaty, the
Allied Powers waive all reparations claims of the Allied
Powers, other claims of the Allied Powers and their
nationals arising out of any actions taken by Japan and its
nationals in the course of the prosecution of the war, and
claims of the Allied Powers for direct military costs of
occupation.
Art. 14(b).
In addition to finally resolving the Allies’ own war claims
and those of their nationals, the Treaty also provided that the
war claims of non-signatory countries and their nationals were
to be resolved by government-to-government negotiations.
These claims, especially those of China and Korea, were
extremely large. Japan’s infamous conduct in Nanking and its
use of Asian slave labor was well documented by the time of
the Treaty’s negotiation. See December 2000 Statement, 4-6
[Non-Signatory SER 507-09]. If left unresolved, these
potentially enormous liabilities would likely have prevented
Japan’s economic recovery. Permitting assertion of these
claims would thus have been flatly at odds with one of the chief
reasons for the Allies’ agreement to waive their own claims and
45a
Appendix F
those of their nationals. See ibid See also Memorandum of
Conversation, by the Officer in Charge of Korean Affairs
(Emmons), Washington, Jan. 17, 1951 (Ex. 8 to the December
2000 Statement) (“any reparations which might be paid to the
Koreans by the Japanese would in fact come from the United
States taxpayers”). The Allies thus determined that the Treaty
should also provide for the resolution of these nonsignatory
claims.
Implementing this policy posed significant difficulties. No
consensus existed among the Allies as to whether the People’s
Republic of China (“PRC”) or the Republic of ‘China
(“Taiwan”) legally represented China. Neither could Korea be
a party to the Treaty because Korea, as part of the Japanese
empire, had fought against the Allies during the Pacific War.
As a result of these complications, no Chinese or Korean
political entities signed the 1951 Treaty, and Article 14(b)’s
waiver provision does not, by its own terms, cover the PRC,
Taiwan, or North or South Korea. See generally December
2000 Statement 4-6 [Non-Signatory SER 507-09].
To achieve their foreign policy goals, the Allies inserted into
the Treaty several other provisions intended to ensure that
Chinese and Korean war claims against Japan were also
resolved through government-to-government arrangements.
Although China and Korea were not signatories, the Treaty
provided that China and Korea would receive from Japan the
same compensation that the Allies had obtained for themselves
in return for waiving their claims. In turn, the Treaty obligated
Japan to enter into bilateral agreements with Chinese and
Korean representatives on terms similar to those provided in the
Treaty.
Article 21 of the Treaty gave China the benefits of Articles
10, in which Japan renounced all iights and interests in China,
and 14(a)2, which authorized China to seize and liquidate all
assets of Japan and Japanese nationals located in Chinese
territory. These provisions were extremely significant to China;
46a
Appendix F
almost half of all Japanese-owned foreign assets were located in
China. See December 2000 Statement at 4 [Non-Signatory SER
507]. In return, Article 26 provided that Japan was expected to
enter into a separate treaty settling the war with a Chinese
political entity “on the same or substantially the same terms as
are provided for in the present Treaty.” Art. 26 (emphasis
added). As contemplated by Article 26, a subsequent treaty
between Japan and the Republic of China (“Taiwan”) states that
“property of such authorities and residents [of Taiwan] and their
claims against Japan and its nationals, shall be the subject of
special arrangements between the Government of the Republic
of China and the Government of Japan.” See Treaty of Peace
Between the Republic of China and Japan, April 28, 1952, 1858
U.N.T.S. 38 [Non-Signatory SER .
The Treaty of Peace dealt with Korean war claims against
Japan in a similar fashion. Article 21 stated that Kofea was
entitled to the benefits of Articles 2, 4, 9, and 12 of the Treaty.
Article 2 required Japan to recognize Korea’s independence and
renounce all claims to Korea. Article 4(b), as construed by the
United States, gave Korea the same benefits the Allies had
obtained for themselves. It authorized the seizure by Korean
authorities of all Japanese-owned assets in Korea — assets worth
billions of dollars. See December 2000 Statement, 8 [Non-
Signatory SER 511]. In turn, Article 4(a) provided that the
“claims * * * of [Korean] authorities and residents against
Japan and its nationals, shall be the subject of special
arrangements between Japan and [Korean] authorities.”
As contemplated in Article 4(a), Japan and the Republic of
Korea (“South Korea”) entered into an agreement in 1965,
following years of protracted negotiations in which the United
States was heavily involved. 8473 U.N.T.S. 258 [Non-
Signatory SER, 352]. The terms of this agreement were greatly
influenced by the fact that Korea had already received
substantial compensation under Article 4(b) of the 1951 Treaty.
Article II.1 of the Japan-ROK treaty specifically provides that
47a
Appendix F
the “problem * * * concerning claims between the Contracting
Parties and their nationals, including those provided for in
Article IV, paragraph (a) of the [1951] Treaty of Peace * * * is
settled completely and finally.” Non-Signatory SER, 354. A
similar agreement between Japan and North Korea is currently
under negotiation.
2. California’s World War II Forced Labor Statute.
In 1999, California enacted a statute that permits World War
II slave and forced laborers to sue the companies that benefited
from their labor. See Cal. Code of Civ. Pro. § 354.6. The
author of the provision, State Senator Tom Hayden, stated at the
time of its enactment that the law was intended to “send[] a
very powerful message from California to the U.S. government
and the German government, who are in the midst of rather
closed negotiations about a settlement” of World War II-era
claims. See Henry Weinstein, Bill Signed Bolstering
Holocaust-Era Claims, Los Angeles Times, July 29, 1999, at
A3 (1999 WL 2181642) (emphasis added). The “message,”
according to Hayden, was that “[i]f the international negotiators
want to avoid very expensive litigation by survivors * * *, they
ought to settle. Otherwise, this law allows us to go ahead and
take them to court.” Jbid.
The California statute creates a cause of action for victims of
Slave labor practices of the “Nazi regime, its allies and
sympathizers” with uniquely favorable substantive and
procedural rules. See Cal. Civ. Pro. § 354.6. The statute
permits any “prisoner-of-war,” “concentration camp” prisoner,
or “member of the civilian population conquered by the Nazi
regime, its allies or sympathizers,” who was forced “to perform
labor without pay for any period of time between 1929 and
1945, by the Nazi regime, its allies and sympathizers,” or
companies within their jurisdictions, to bring suit to recover the
“market value” of the labor they performed. Jbid California
has defined the cause of action so as to remove any defense
48a
Appendix F
based on the law of the place where the conduct occurred, id.
§ 354.6(b), affixed damages in a manner to eliminate the effect
of post-war inflation, id. § 354.6(a)(3), made corporations doing
business in California liable for the debts of their Asian and
European affiliates, without regard to traditional principles of
corporate identity, id § 354.6(b), and set aside generally-
applicable statutes of limitations in favor of a limitations period
that extends to 2010, id. § 354.6(c).
3. Proceedings in the District Court
Plaintiffs are nationals of China and Kcerea who allege that,
during World War II, they were forced by the Japanese
government to perform labor for Japanese companies in support
of Japan’s war effort. See, e.g., Non-Signatory ER 11-25,
43-57, 98-99. Plaintiffs, purporting to represent all similarly
situated Korean and Chinese nationals, filed class action suits
against the companies for which they were forced to work as
well as their American affiliates. Plaintiffs allege claims under
California’s Section 354.6 as well as common law causes of
action. Defendants moved to dismiss, arguing, among other
grounds, that plaintiffs’ claims present no1-justiciable political
questions, that the suits are barred by the 1951 Treaty of Peace,
and that California’s forced labor statute is unconstitutional.
The United States, appearing as amicus curiae, filed a
Statement of Interest supporting dismissa. The United States
explained that California’s forced labor statute frustrates the
foreign policy of the United States, established in the 1951
Treaty of Peace, that claims such as plaintiffs’ are to be
resolved through government-to-government arrangements
rather than through litigation.
On September 17, 2001, the distnct court dismissed
plaintiffs’ claims. See In re World War II Era Japanese Forced
Labor Litigation, 164 F. Supp. 2d 11€0 (N.D. Cal. 2001).
Although the district court found that the Treaty of Peace did
49a
Appendix F
not directly bar plaintiffs’ claims, because neither Korea nor
China had signed the Treaty, id. at 1165-66, the court held that
the California” legislature had impermissibly attempted to
intrude into the conduct of foreign policy when it attempted to
create a cause of action for wrongs committed by Japan and its
nationals during World War II, id. at 1166-78. With respect to
plaintiffs’ Alien Tort Statute and remaining state-law claims,
the court held that, even under the longest statute of limitations
that might arguably apply, plaintiffs’ claims were time-barred.
Id. at 1178-83.
SUMMARY OF ARGUMENT
1. The Constitution grants to the Federal Government
exclusive authority to conduct the nation’s foreign relations, an
area that the Framers determined should “be left entirely free
from local interference.” Hines v. Davidowitz, 312 U.S. 52, 63
(1941). The Supreme Court has enforced the constitutional
design by striking down state laws that would frustrate the
objectives of established federal foreign policy and, even in the
absence of federal action, setting aside state regulations that
have more than an indirect effect on the nation’s foreign
relations. Under these precedents, California’s policy of
promoting litigation of World War II forced labor claims must
give way. The State’s foreign policy conflicts with the
considered judgment of the President and Senate, reflected in
the 1951 Treaty of Peace, that such claims against Japanese
nationals should be resolved by government-to-government
agreement, rather than individual litigation.
2. Section 354.6 also violates additional constitutional limits
on the jurisdictional reach of state law. It is an inherent
constraint of our federal system of government, reflected in
both the Commerce Clause and Due Process Clause of the
United States Constitution, that each State may legislate only
with respect to matters that take place within its borders. A
50a
Appendix F
contrary view would permit the proliferation of conflicting legal
obligations.
California’s forced labor statute is a clear example of
extraterritorial legislation. The conduct that California seeks to
regulate took place exclusively in foreign lands, with no
perceptible connection to California. The fact that certain
named plaintiffs have subsequently moved to California does
not give California the authority to apply its substantive law to
events that took place entirely outside the State’s boundaries.
The legislation cannot be saved by casting it as a mere
“statute of limitations.” The structure and language of Section
354.6 betray the State’s attempt to define the substantive as well
as procedural rules under which the defendants’ liability is to be
determined.
ARGUMENT
I. THE CONSTITUTION PRECLUDES CALIFORNIA
FROM INTERFERING IN THE FEDERAL
GOVERNMENT’S DETERMINATION THAT
PLAINTIFFS’ CLAIMS SHOULD BE RESOLVED
THROUGH GOVERNMENT-TO-GOVERNMENT
ARRANGEMENTS.
A. The Constitution Vests Full and Exclusive Responsibility
For Foreign Relations In The Federal Government.
From the earliest days of the Republic, the Supreme Court
has recognized that the Constitution’s specific commitment of
foreign affairs powers to the national government” and the
* The Constitution grants to Congress the authority “[t]o regulate Commerce
with foreign Nations,” U.S. Const. Art. I, § 8, cl. 3, and “[t]o define and
punish Piracies and Felonies committed on the high Seas, and Offences
against the Law of Nations,” id., cl. 10. The Constitution also designates
the President as the “Commander in Chief of the Army and Navy of the
Sla
Appendix F
express prohibitions on the States’ activities in that sphere?
reflect a general rule of exclusive federal authority over
international relations. “Power over external affairs is not
shared by the States; it is vested in the national government
exclusively.” United States v. Pink, 315 U.S. 203, 233 (1942).
See also Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (the
Federal Government is entrusted “with full and exclusive
responsibility for the conduct of affairs with foreign
sovereignties”); United States v. Arjona, 120 U.S. 479, 487
(1887) (power to define and punish violations of the Law of
Nations is “conferred by the constitution on the government of
the United States exclusively”).
In light of the “imperative[] * * * that federal power in the
field affecting foreign relations be left entirely free from local
interference,” Hines, 312 U.S. at 63, the Supreme Court has
held that state “regulations must give way if they impair the
effective exercise of the Nation’s foreign policy,” Zschernig v.
Miller, 389 U.S. 429, 440 (1968).
United States,” id., Art. II, § 2, cl. 1, and gives him the authority to “make
Treaties” and “appoint Ambassadors” with the “Advice and Consent of
the Senate,” id, cl. 2, and to “receive Ambassadors and other public
Ministers,” id., § 3.
The Constitution also confers upon Congress the authority “[t]o lay and
collect * * * Duties, Imposts and Excises,” and “provide for the common
Defence,” U.S. Const. Art. I, § 8, cl. 1, “[t]o establish a uniform Rule of
Naturalization,” id., cl. 4, “[t]o declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water,” id, cl.
11, “[t]o raise and support Armies,” id. cl. 12, “[t]o provide and maintain
a Navy,” id. cl. 13, and to regulate “the land and naval forces,” id. cl. 14.
> The Constitution provides that “[nJo State shall enter into any Treaty,
Alliance, or Confederation; grant Letters of Marque and Reprisal” or,
without the consent of Congress, “lay any Imposts or Duties on Imports or
Exports,” “keep Troops or Ships of War in time of Peace,” “enter into any
Agreement or Compact * * * with a foreign Power,” or “engage in War,
unless actually invaded.” U.S. Const. Art. 1, § 10.
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Appendix F
Because the conduct of foreign policy is committed to the
Federal Government, and because of the unique concerns raised
by state action in that arena, federal preemption of a state law
concerning foreign affairs may be more readily inferred than in
the domestic context where federal and state governments share
regulatory authority. When the States act in an area in which
federal interests predominate, “[t]he conflict with federal policy
need not be as sharp as that which must exist for ordinary pre-
emption when Congress legislates in a field which the states
have traditionally occupied.” Boyle v. United Technologies
Corp., 487 U.S. 500, 507 (1988) (quotation omitted).
“Preemption of a whole field * * * will be inferred where the
field is one in which ‘the federal interest is so dominant that the
federal system will be assumed to preclude enforcement of state
laws on the same subject.” Hillsborough County v. Automated
Medical Laboratories, Inc., 471 U.S. 707, 713 (1985) (quoting
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
Thus, when a State legislates in an area affecting foreign affairs,
the courts are “more ready to conclude that a federal Act * * *
supersede[s] state regulation.” Allen-Bradley Local No. 1111 v.
Wisconsin Employment Relations Bd, 315 U.S. 740, 749
(1942).
Just as the Supreme Court is more willing to infer
affirmative preemption when a state statute intrudes into the
foreign policy arena, the Court has also made clear that a state
law that directly implicates the conduct of foreign policy will be
set aside even if there is no affirmative preemption. In
Zschernig v. Miller, the Supreme Court made clear that a state
policy that disturbs foreign relations must give way “even in
[the] absence of a treaty” or federal statute. 389 U.S. at 441.
See also Laurence H. Tribe, American Constitutional Law,
§ 4-5 at 656 (3d ed. 2000) (“all state action, whether or not
consistent with current foreign policy, that distorts the
allocation of responsibility to the national government for the
conduct of American diplomacy is void as an unconstitutional
53a
Appendix F
infringement on an_ exclusively federal sphere of
responsibility”).
The California forced Tabor statute has far more than an
“incidental or indirect effect in foreign countries.” Zschernig,
389 U.S. at 434-35. Rather, the State has deliberately
undertaken the formulation of foreign policy in an area subject
to international treaty obligations, adopting a strategy that
directly impairs the accomplishment of federal policy and
prevents the nation from speaking with one voice on a matter of
international concern.
Because the policy reflected in California’s forced labor
Statute is in direct tension with the nation’s foreign policy
expressed in the 1951 Treaty of Peace, the state statute “stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives” of federal policy and is, thus,
affirmatively preempted. Hines, 312 U.S. at 67: Crosby v.
Nationa! Foreign Trade Council, 530 U.S. 363, 373 (2000).
However, even if the Court were to conclude that the forced
labor statute has not been affirmatively preempted, it is plain
that the statute in design and effect impermissibly intrudes into
the conduct of foreign affairs and is therefore beyond the
authority of the State to enact.
B. Federal Law Preempts California’s Forced Labor Statute,
Which Stands As An Obstacle To Achieving The United
States’ Foreign Policy Established In The 1951 Treaty Of
Peace.
The 1951 Treaty of Peace reflects the President and Senate’s
considered judgment that all claims arising out of Japan and
Japanese nationals’ conduct in the course of World War Il,
including claims between private individuals, should be
resolved through inter-governmental negotiations. The Allied
parties to the Treaty, including the United States, expressly
“waive all * * * claims of the Allied Powers and their nationals
arising out of any actions taken by Japan and its nationals in the
—
es
54a
Appendix F
course of the prosecution of the war.” Art. 14(a) (emphasis
added). The Treaty of Peace likewise provides that the claims
of Korea and China, and those of their nztionals, will be
resolved through inter-governmentai agreements rather than
litigation. While the Treaty may not be directly binding on
Korea and China, who were not parties to the Treaty, the Treaty
does establish the law of the United States with respect to the
war-related claims of Korean and Chinese nationals. Indeed, it
would be ironic to think that the United States foreclosed the
war-related claims of its own nationals while leaving its courts
open to litigating the claims of foreign nationals.
As noted above, the Treaty of Peace both ensured for Korea
and China the same benefit as the Allied parties had obtained
for themselves and directed that war-related claims of Koreans
and Chinese, like those of Allied nationals, would be settled on
a government-to-govermment basis. Japan was required to
renounce its interests in Korea and Chir ., and the Korean and
Chinese authorities were allowed to seize and liquidate all
Japanese assets within their territories — assets worth billions
of dollars. See Art. 4(b) (Korea); Art. 10, 14(a)(2), 21 (China).
In return,
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