Article 11 of the Treaty of Peace between Japan and the Republic of China –
Article 14(b) of the Treaty of Peace with Japan – Joint Communiqué Between
Japan and the People’s Republic of China – “The Three Principles for the
Restoration of Relations” Put forward by the Government of the People’s
Republic of China – Individual Claims of Chinese Nationals for Damages
Suffered during the Second World War
Tokyo High Court, Judgment, March 18, 2005;
51 Shomu Geppo (11) 2813 [2005]
X et al. v. State of Japan
This case was brought against Japan by X and Y, two women and
both citizens of the People’s Republic of China (hereinafter, “the
PRC”) (Y died before the judgment of the court of first instance and
her five children, Y1-Y5, succeeded). X and Y claimed
compensation and publication of an apology in Japanese
newspapers on the ground that they suffered significant physical
and mental harm as a result of continuous assaults and rape by the
Imperial Japanese Army soldiers after being kidnapped and detained
by them in the Republic of China (hereinafter, “the ROC”) during
the Second World War. Additionally, X and Y claimed
compensation on the ground that they suffered significant mental
distress because by not enacting remedial legislation, Japan failed to
redress injuries they sustained over a long period of time since the
aforementioned wrongdoings.
The original court dismissed the claims (Tokyo District Court,
Judgment, March 29, 2002), and X and Yl-Y5 appealed.
Held: ‘1. All of the appeals shall be dismissed.
2. The cost of the appeals shall be borne by the appellants.’
Upon the grounds stated below:
1. On the claims based on international law
‘... the judgment of this court regarding the claims based on international law
follows the judgment ... of the original decision, and thus we incorporate here the
latter judgment stating as follows.’
The original decision stated that based on international law, in order for
individuals to have claims against States other than that of their nationality, such
rights need to be specifically recognized by relevant international law norms. The
decision examined the Hague Convention Respecting the Laws and Customs of
War on Land, Forced Labour Convention, International Convention for the
Suppression of the Traffic in Women and Children, crimes against humanity and
international customary law on which the appellants based their claims for
compensation, and thereby the court concluded that none of these norms recognize
such individual rights. First, regarding Article 3 of the Hague Convention
Respecting the Laws and Customs of War on Land, the decision stated that none
of the text, objects, or purposes of the Convention nor subsequent practices after
the Convention took effect support the interpretation that the article recognizes
individual claims for compensation, and the drafting history of the Convention,
which is an supplementary means of interpretation, does not support this either.
Similarly, the decision stated that neither the Forced Labour Convention nor the
International Convention for the Suppression of the Traffic in Women and
Children contain provisions that recognize individual claims for compensation
against States. Furthermore, it was stated that even though individuals who
commit crimes against humanity are criminally responsible, it does not follow that
their victims have claims for compensation against the State to which the
wrongdoers belong, and also, no such claims were recognized in the Charter of the
International Military Tribunal for the Far East. Finally, regarding international
customary law, the decision stated that apart from the implementation of specific
treaties which recognize individual claims (e.g. the Treaty of Versailles), no such
international custom based on state practices which justify an individual’s claim
for compensation against belligerent States for damages caused by their conduct
exists. For the above reasons, the plaintiffs’ claims based on the Hague
Convention and other treaties as well as on international customary law were
dismissed as groundless.
2. On the claims based on domestic laws
Based on the Civil Law of the ROC in force at the time of the occurrence of
the wrongdoings and Article 715(1) of the Japanese Civil Law, the court
recognizes the appellee’s obligation to compensate the appellants.
3. On the waiver of claims
For the above reasons, the court recognizes that the wrongdoings in question
have given rise to claims for compensation on the basis of the application of both
the ROC’s and Japanese domestic laws. The appellee, however, asserts that those
claims were waived pursuant to the Treaty of Peace with Japan (hereinafter, “the
San Francisco Peace Treaty”) and the Treaty of Peace between Japan and the
Republic of China (hereinafter, “the Japan-ROC Peace Treaty”). After reviewing
the provisions of the relevant treaties, the court rules as follows:
‘(2) ... Article 11 of the Japan-ROC Peace Treaty provides that unless otherwise
provided for in the treaty, any problem arising between Japan and the ROC as a
result of the existence of a state of war shall be settled in accordance with the
relevant provisions of the San Francisco Peace Treaty, whereas the Japan-ROC
Peace Treaty does not contain any stipulations in regard to the issue of reparations
for war damages. Therefore, as provided in Article 11, the Japan-ROC Peace
Treaty was intended to follow the substance of Article 14(b) of the San Francisco
Peace Treaty, which provided for a waiver of claims by the Allied Powers.
Article 14(b) of the San Francisco Peace Treaty provides that “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,” and thus it was specifically
stipulated that the Allied Powers waived the claims “of the Allied Powers and
their nationals.” The San Francisco Peace Treaty was concluded for the purpose of
settling conclusively territorial, political, economic, claims and property, as well
as other questions, which were still outstanding as a result of the existence of a
state of war (the preamble and Article 1). Since modern wars cause significant
damage to a large number of people in each opponent State, if each national
continues to pursue his or her claims for war damages against opponent States, it
can hardly be said that the state of war has been terminated. The San Francisco
Peace Treaty recognized that although Japan should have paid reparations to the
Allied Powers, Japan lacked the ability to make complete reparations while
maintaining a viable economy (Article 14(a)), and thus it was determined that
reparations for the damage to the Allied Powers were to be paid by what were
known as services reparations and by the disposition of Japanese property (Article
14(a) 1, 2). Considering all of the above factors, Article 14(b) should be
interpreted as providing that in order to terminate the state of war with Japan, each
of the Allied Powers intended not only to waive its right of diplomatic protection
but also to waive the very claims of its nationals for war reparations against Japan
in their entirety.
Accordingly, upon the ROC’s conclusion of the Japan-ROC Peace Treaty,
which in effect incorporated Article 14(b) of the San Francisco Peace Treaty, the
claims of the appellants, who are Chinese nationals, for the damage caused by the
wrongdoings in question, which were committed during the prosecution of the
Second World War by Imperial Japanese Army soldiers, who were Japanese
nationals, were waived.
According to the appellee’s assertions, “the waiver of claims” means that
Japan and its nationals may reject the claims of the nationals of the Allied Powers
on the ground that the legal obligations to respond to those claims on the basis of
domestic laws were extinguished, which thereby indicate that the individual
claims themselves were not extinguished. However, for example, in light of the
usage of the word “waive” in Article 14(b) of the San Francisco Peace Treaty, to
the extent that the ROC concluded a treaty that, in effect, incorporated that
provision, it can only be interpreted that the claims of its nationals against Japan
were extinguished, regardless of whether legislative or administrative measures
for compensation are adopted by the competent authorities in Japan.’
‘(3) The appellants assert that the government of the ROC, which concluded the
Japan-ROC Peace Treaty, was not in control of mainland China at the time of the
conclusion of the treaty, and thus the conclusion of that treaty by the ROC with
Japan does not legally affect the claims of the appellants who were residents of
mainland China.
It is true that since 1949 both the government of the ROC and the government
of the People’s Republic of China have been claming their legitimacy as the
government representing China, that the ROC was not in effective control of
mainland China at the time of the conclusion of the Japan-ROC Peace Treaty and
that in 1972 Japan issued the Joint Communiqué of the Government of Japan and
the Government of the People’s Republic of China (hereinafter, “the Japan-China
Joint Communiqué”) in which Japan recognized that the PRC was the sole legal
government of China.
However, at the time of the conclusion of the Japan-ROC Peace Treaty,
whereas the government of the ROC had been recognized by approximately
thirty-five countries and had the right to be represented at the United Nations, only
twenty countries and twelve out of sixty-one member States of the United Nations
recognized the PRC, and thus it can be said that the government of the ROC was
recognized in international society as the legitimate government representing
China. Therefore, it is reasonable that the peace treaty concluded with Japan by
the government of the ROC representing China as a government with the power to
settle the rights and obligations of Chinese nationals through a treaty, has the
effect as a treaty that is concluded between China as a State and Japan, and thus it
is applicable not only to the territory under the actual control the ROC at the time,
but to the whole territory of China including the mainland.
The appellants refer to an exchange of notes attached to the Japan-ROC Peace
Treaty and assert that the scope of the application of the treaty was restricted to
“all the territories which are now, or which may hereafter be, under the control of
[the ROC’s] Government.” However, it is difficult to assume that at least
provisions which terminate a war between States and settle claims for territorial
rights or for compensation regarding the war with territorial cause apply only to a
part of a State. Therefore, to the extent that the government of the ROC concluded
a peace treaty representing the State, it cannot be interpreted that the scope of its
application was restricted by the attached exchange of notes.’
‘(4) The appellants pointed out that Japan issued the Japan-China Joint
Communiqué with the PRC after having accepted the PRC’s Three Principles for
the Restoration of Relations (hereinafter, “the Three Principles”), which included
the PRC’s opinion that the Japan-ROC Peace Treaty was illegal and void.
According to the appellants, the appellee’s contention that the rights of the
appellants were extinguished upon the conclusion of the Japan-ROC Peace Treaty
is therefore extremely contradictory to international good faith as well as an
unreasonable interpretation of the treaty.
In 1972, Japan issued the Japan-China Joint Communiqué with the PRC which
had manifested the Three Principles ((i) the government of the PRC is the sole
legal government representing China; (ii) Taiwan is an inalienable part of the
territory of the PRC, and furthermore has been returned to China already; and (iii)
the Japan-ROC Peace Treaty is illegal, void, and needs to be denounced) as
fundamental principles upon which to restore relations with Japan.
Upon the issuance of the Japan-China Joint Communiqué, the government of
Japan accepted, among the aforementioned three principles, that the PRC was the
sole legal government representing China (paragraph 2). With respect to the other
principles, however, although it was stipulated that “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 preamble), the Joint Communiqué only provided that “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,”
(paragraph 1) and “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” (paragraph 3). Therefore, one
cannot admit that Japan had accepted the arguments of the PRC on the second and
third principles.
Accordingly, the fact that the Japan-China Joint Communiqué was issued does
not contradict the above judgment that the Japan-ROC Peace Treaty is a treaty
effectively concluded between Japan and China as a State, and that the state of
war between Japan and China as a State was terminated by the Japan-ROC Peace
Treaty. Therefore, the aforesaid argument of the appellants cannot be adopted.
The Japan-China Joint Communiqué contains a provision that the
government of the PRC renounces its demand for war reparations from Japan
(paragraph 5). However, as is stated above, the claims for reparations that China
and its nationals obtained against Japan as a result of the war had already been
waived by the Japan-ROC Peace Treaty, and thus it should rather be understood
that the above provision in the Japan-China Joint Communiqué regarding war
reparations only reaffirmed the then existing status of rights and did not give rise
to any new legal effects.’
‘(5) Accordingly, without the need to judge other questions ..., the appellants’
claims for compensation against the appellee regarding the wrongdoings in
question are groundless.’
4. On the limitation of action
5. On the responsibility for legislative inaction
6. On the arguments of the appellants
Judge Hiromu Emi (presiding)
Judge Shoji Hashimoto
Judge Tamiko Ichikawa