Tuesday, August 16, 2005

The Korean Comfort Women Case

[Note: here is Tony D'Amato's latest post. I am posting it for him because we seem to be having a software glitch. I have isolated the problem to the hyperlinks so I have removed the links from this post so that the full text may appear. Once the problem is fixed, we will put the links back in. ~ Chris]

The next time someone says that international law is “easy,” tell them to plunge into the recent Comfort Women Case and see how deeply they have to dig to figure it out.

Fifteen women from China, Taiwan, South Korea, and the Philippines sued Japan in the Washington D.C. district court under the Alien Tort Statute, seeking money damages for having been subjected to sexual slavery and torture before and during World War II, in violation of international law. Japan, assisted by the United States as amicus, moved to dismiss the women’s complaint on the ground (among others not relevant here) that it is barred by the peace treaties with Japan that extinguished all private citizens’ war claims against Japan. Of course, the plaintiffs responded that the peace treaties did not extinguish their claims but rather preserved them.

The Court of Appeals gave up quickly; they threw the case out on the basis of the “political question doctrine” on June 28, 2005. But as Professor Julian Ku pointedly observed in an Opinio Juris blog, “what is interesting here is that the D.C. Circuit refused to resolve whether or not the claims have in fact been waived by the treaties.” Instead, the Court deferred to the interpretation of the treaties urged by the amicus United States: that the foreign relations of the United States might be adversely affected if its courts were to delve into the meaning of treaties between other states, i.e., treaties in which the United States is not itself a party.

Sounds logical except when you consider that the plaintiffs’ grievance comes within customary international law. The Alien Tort Statute clearly gives them the right to sue in American courts for tortious violations of international law. They are seeking no rights under the peace treaties. It is the defendant, Japan, that is invoking the peace treaties as a defense to their action. If Japan’s defense involves a political question, that is Japan’s problem, not the plaintiffs’ problem.
Thus, as a matter of ordinary logic, the Court had to interpret the peace treaties in order to throw out the case. It was disingenuous for the Court to say that the political question doctrine barred it from getting involved in the interpretation of the treaties.

If that weren’t silly enough, how can the Court say that interpreting a treaty is a political question? The Court actually has the chutzpah to cite Baker v. Carr in support of its position. The first of the Baker tests for a political question was “a textually demonstrable
constitutional commitment of the issue to a coordinate political department.” How could the interpretation of a treaty—the supreme law of the land under the Constitution—possibly be committed to the political branches? From the earliest days of the Republic till June 28, 2005, interpreting treaties was the sine qua non specialty of the judicial branch.

Well, the Court probably figured that it should interpret at least one treaty in order to make everyone feel good. The treaty it chose to interpret had nothing to do with the case. But with their opinion becoming increasingly woozy as it goes along, they might as well act the part of the proverbial drunk who lost a coin and looked for it two blocks away because the street lamp was brighter there.

So the Court looked at the San Francisco Peace Treaty of 1951. (Most of the plaintiffs were not nationals of countries that signed that Treaty.) The Allied Powers who signed the treaty, including the United States which drafted it, waived all claims of their nationals arising out of any actions taken by Japan in the course of the prosecution of the war (Article 14(b)).

That clinches it, the Court said, basically. Goodbye, plaintiffs, and be comforted.

But where does the United States get the right to waive the private claims of its nationals? Louis Henkin, in his “definitive” study of foreign relations law, stated:

when negotiating peace treaties, governments have dealt with ... private claims as their own, treating them as national assets, and as counters, ‘chips’, in international bargaining. Settlement agreements have lumped, or linked, claims deriving from private debts with others that were intergovernmental in origin, and concessions in regard to one category of claims might be set off against concessions in the other, or against larger political considerations unrelated to debts.

While it is true that “governments” have done this, isn’t the government of the United States forbidden to do it by the Takings Clause of the Fifth Amendment? I doubt whether Professor Henkin worried about the Takings Clause, because as a State Department attorney (before he turned to teaching) he and his colleagues were accustomed to selling off private claims to foreign governments on a daily basis. The State Department regards private claims as their own bargaining chips, whether or not a peace treaty is involved.

Yet a private claim is as much “property” under the Fifth Amendment as real estate. A peace treaty confiscates these private claims for a public purpose, namely, achieving peace. But the Constitution requires fair compensation for the claims that are taken. Why should American soldiers brutalized during the war in Japanese prison camps, for example, have their claims taken away by the United States in order to ease the reparations burden on their former torturers? They have a right to be compensated by the United States for the value of their claims. But they were up against Secretary of State John Foster Dulles, who was Houdini’s heir in the art of sleight-of-hand.

The United States government simply does not have the power to take private property for a public purpose without paying just compensation. Article 14(b) of the San Francisco Peace Treaty is nothing but a case of unconstitutional overreaching by the Secretary of State and his associates.

Next question (this is sounding more and more like a question on a law school final exam): Is Japan charged with knowledge of the Fifth Amendment of the United States Constitution such that it must have known that Article 14(b) was a sham? Or can Japan’s presumed innocence of American constitutional law mean that under treaty law Japan is entitled to rely on the plain meaning of Article 14(b)?

Students get extra credit if they can cite The Tinoco Arbitration in their answer. Under President Taft’s decision in Tinoco, if A signs a concession agreement with nation B, and if the terms of the agreement are unconstitutional under B’s law, A is charged with knowledge of the unconstitutionality. (As I tell my students in class, if this result sounds ridiculous, at least it greatly increases the billing hours of international lawyers who now have to sift through foreign constitutions when they prepare international contracts.)

Back to San Francisco. There was a near crisis; the delegates from The Netherlands almost walked out of the conference. They told Mr. Dulles that they had no power to waive the private claims of Dutch citizens against Japan. (Clear thinkers, these Dutch!) This threw Dulles into a frenzy; he could not afford a break in the Allied ranks. Working overtime, Dulles engineered an exchange of confidential letters between the Japanese and Dutch representatives which only recently have been declassified. By a letter dated September 8, 1951, the Premier of Japan, Shigeru Yoshida, wrote to Dirk V. Stikker, the Dutch Minister of Foreign Affairs: “it is my Government’s view that Article 14(b) as a matter of correct interpretation does not involve the expropriation by each Allied Government of the private claims of its nationals.” In a return letter, the representative of The Netherlands considered this contemporaneous interpretation of the 1951 Treaty by Japan as sufficient to preserve the private claims of Dutch nationals against Japan, and thereupon signed the Treaty. Prime Minister Shigeru Yoshida thereupon signed the 1950 Peace Treaty on behalf of Japan. Five years later, in 1956, Japan paid $10,000,000 to the Netherlands, an amount that was designated to be turned over to the private Dutch claimants.

Clearly, then, the Japanese delegates had reason to know that Article 14(b) was pretty shaky. Yet both Japan and the United States had no interest in letting anyone know. Dulles was worried that American soldiers might find out about it and assert claims against Japan. But the official treaty language in Article 14(b), summarized in all the newspapers at the time, was obviously sufficient to dissuade veterans from thinking about suing Japan.

Thus the United States government kept up its tradition of socking it to our veterans, a tradition that is live and well today in the course of the war in Iraq.

As far as the language of Article 14(b) is concerned, it is still grinding out its unconstitutional work in the Court of Appeals.

~Tony D'Amato


Anonymous Mary Jasmine said...

You ask "where does the United States get the right to waive the private claims of its nationals?"

Perhaps the answer could be "from customary international law"? As Prof Henkin points out, the use of private claims as bargaining tools is so widespread, that it would seem to be a necessary component of diplomatic powers, that come under the Executive Branch, so making it a political question.

I'm not quite convinced by your argument that denial of claims is comparable to the art 5 takings clause, since the government isn't literally taking anything away, but is rather preventing a future recompense.

Although I sympathise with the Comfort Women's situation, it does seem that the intent of art 14 of the treaty was to block such claims, and it is a stretch to argue that the treaty is unconstitutional.

Although it might not have been so in this case, there must surely be other occassions where the 'harm' of denying private claims is overridden by the 'good' of achieving the treaty. Your interpretation seems to be unnecessarily restrictive of the powers of the executive to make treaties with all of the diplomatic bargaining chips available.

8/16/2005 4:57 PM  
Anonymous Mary Jasmine said...

sorry, I obviously meant 5th amendment takings clause...

8/16/2005 5:03 PM  
Blogger D'Amato said...

To Mary Jasmine: Your points are well-taken; let me respond to them as best I can.

First, you suggest that the United States can waive the private claims of its nationals under customary international law. As a big fan of customary international law, I only wish that it were so! But surely customary international law cannot override the United States Constitution.

I am not denying that the government can “take” private claims, I’m only claiming that the value of those claims must be given fair compensation. The government’s assertion (borrowing from Henkin) that it may take away private claims without paying for them is, as I suggested in the blog, patently unconstitutional. (But, true, it’s been going on for a long time. Credit this to the lack of sophistication of the victims and/or their lawyers.)

Second, I think your argument that “the government isn’t literally taking anything away, but is rather preventing a future recompense,” contradicts itself. The government may have a right to burn your house down if it’s for a public purpose, but the “taking” is only perfected later if the government prevents you from getting future recompense. Same thing in the situation I discuss in the blog.

Third, you’re quite right that the intent of the treaty was to block such claims, although this intent got somewhat botched up as the result of the Dutch objection and the exchange of letters. If you look at the letter from Japan, Japan did not say that the treaty blocked the private Dutch claims. Japan only said that the treaty doesn’t override Dutch internal law. My parallel argument is that the treaty similarly does not override U.S. internal law, especially not our constitutional law. Dulles and the State Department, however, wanted American claimants to believe that the treaty does override US law. And, near as I can tell, the DC Circuit Court of Appeals is saying the same thing that dulles said.

Fourth, I should have made my “unconstitutional” argument clearer, and you caught me on it. It’s not the treaty and it’s not Article 14(b) that are “unconstitutional,” rather, the treaty language facilitated the game plan by the United States to act unconstitutionally in taking private rights without paying compensation for them.

Finally, I think you may be misunderstanding the point of my blog. Nothing the US did in the Peace Treaty itself was unconstitutional. The US was selling out private claims to Japan; the Netherlands refused to do so. As a result, the Netherlands got a big settlement from Japan that was used to compensate the Dutch nationals for their wartime losses. The US didn’t want any settlement because we wanted Japan to become economically self-sufficient. Now, this is an admirable goal for the United States to have. But don’t you personally think it is an outrage for the US to wipe out the private claims of servicemen and servicewomen in order to do this favor for Japan? The US could have done Japan the favor by underwriting those claims. Instead, the US stole the claims in direct violation of the Fifth Amendment. Can you honestly and truly justify what the US did?

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