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Statement of Professor Harold G. Maier
I.
Professional Biography and Qualifications I am Harold G. Maier, Professor of Law at Vanderbilt University, Nashville, Tennessee, where I have been a member of the Law School faculty since 1965. I received my BA degree in English literature at the University of Cincinnati in 1959 and my JD degree in 1963 at the UC College of Law. I earned my LLM degree at the University of Michigan in 1964 with a concentration in international legal studies. In 1959-60, I studied German language and history as a Luftbrucke Dankstipendiat at the Free University of Berlin, Federal Republic of Germany (FRG), and pursued advanced studies concerning the international licensing of industrial property rights at the Max Planck Institute for Patent, Trademark and Competition Law at the University of Munich (FRG) in 1964-65. At Vanderbilt, I currently teach courses in International Civil Litigation, Constitutional Law of United States Foreign Relations, and Conflict of Laws and have also taught Public International Law, Comparative Law, Civil Procedure, U.S. Constitutional Law, Patents, Trademarks and Unfair Competition and Immigration Law, as well as seminars on various related subjects. In 1983-84, I served as Counselor on International Law to the Legal Adviser of the United States Department of State and am presently a member of the State Department’s Advisory Committee on Private International Law. I was special liaison between the Office of the Legal Adviser and the committee of Reporters for the ALI’s Restatement (Third) of Foreign Relations Law of the United States, 1984-88, and was consultant to the Office of the Assistant Secretary of the Army for the Panama Canal Treaty Negotiations, 1976-77. I served as an expert witness for the United States government in the Cuban Mariel Boat Lift cases (see, e.g., Fernandez-Roque v. Smith, 622 F. Supp. 887 (N.D.Ga., 1985) and was a member of American Branch of the International Law Association’s ad hoc Committee on International Law in Municipal Courts, report published November 16, 1993. I have been a visiting professor at law schools at the Universities of Pennsylvania, George Washington, North Carolina and Georgia and in summer law programs in Aix-en-Provence, France, and London, England. For the academic year 2000-2001, I have been appointed Straus Visiting Distinguished Professor of Law at Pepperdine University Law School in Malibu, California. I am a member of the American Society of International Law and of the American Society of Comparative Law. I served on the board of editors of the American Journal of International Law in 1984-88, and have been a member of the editorial board of the American Journal of Comparative Law since 1997. I was elected to membership in the American Law Institute (ALI) in 1984 and served on the Committee of Consultants for the ALI’s Complex Litigation Project, 1988-93. In 1975-76, I was a Guest Scholar at the Brookings Institution, Washington, D.C., studying the role of the separation of powers principle in the conduct of United States foreign policy. II.
Context of this Testimony I have been requested by United States nationals who were held as prisoners of war by the Government of Japan during the Second World War to consider the application of international and constitutional legal principles in United States courts in the context of claims filed by those nationals against certain Japanese corporations and their United States subsidiaries. I have been asked to assume that the Japanese corporate defendants used these American war prisoners as slave or forced laborers without pay, tortured them and committed other acts of gross inhumanity against them, all in violation of international and Japanese legal standards for treatment of prisoners of war. III.
Commentary on the Legal Substance of These Claims. I have been advised that both the Japanese parent juridical entities and their United States subsidiaries have invoked the 1951 San Francisco Peace Treaty between the United States and Japan1 (and particularly Article 14(b) of that treaty) as a defense to these actions by American citizens who were Japanese Prisoners of War held in Japan during World War II. It is my opinion that none of the terms of that Treaty precludes these legal actions by American citizens who were former prisoners of war. There are several
reasons why the 1951 Peace Treaty does not preclude these claims. First, the
language of Article 14 and the publicly articulated purposes of the Treaty
indicate only that it intended to do more than address the limited questions
of what should be done with Japanese-owned assets which in 1951 were under
the control of the United States and the other Allied Powers. In this
respect, the 1951 Treaty does not include terms of exclusivity of remedy with
respect to all Japanese violations of individual rights of American citizens
that occurred during world War II. Article 14(a)(2) of the Treaty gave the
United States and it Allies only the right to seize and dispose of Japanese
assets within their control. Section 14(a)(2) makes no comprehensive
reference to any limitations on future remedial measures on behalf of United
States nationals (for example, nothing in the Treaty addresses or purports to
precludes U.S. nationals from seeking future remedies against assets or
property of private Japanese nationals located in Japan). Moreover, the mechanism
selected for paying compensation (e.g., the confiscation of Japanese-owned
assets then under the control of the United States for conversion into assets
suitable for paying compensation claims to persons illegally injured by the
Japanese Government) was agreed to by the Allied Powers in explicit
recognition that, at that point in time, Japan could not develop a viable
postwar economy if it were required to pay immediately all valid claims. This policy basis for Article 14(a)(2)
excludes any reference, pro or con, to future claims filed by individuals to
recover for injuries at the hands of the Government of Japan or Japanese
nationals when the Japanese economy no longer needed protection from the
necessary results of its inhumane wartime policies. As such, there is no
evidence in the Treaty’s language or purpose that the Allied Powers agreed to
excuse the Government of Japan or Japanese nationals from future private
claims to recover for these injuries. Lacking the evidence of any clear intention to nullify the future rights of these former prisoners now seeking compensation, the public statements of the United States’ negotiators at most suggest the Peace Treaty was specifically intended to address only the use of Japanese assets then located within the United States. Thus, for example, I would direct the attention of the Committee to Secretary of State Dulles’ explanation of the Treaty’s terms and intent before the Senate Foreign Relations Committee, in which he stated, The United States gets, under this treaty, the right to use Japanese assets in this country to satisfy whatever claims Congress feels should be satisfied. We have taken under that provision approximately $90 million of Japanese assets in this country. Approximately $20 million have been used to take care of claims which have been approved by the Congress on behalf of internees, civilians and prisoners of war, and it remains for Congress to decide what it wants to do with the balance.2 Nothing in this statement suggests that future claims of United States nationals were intended to be nullified by operation of the Peace Treaty, or that the United States had precluded any U.S. nationals from pursuing future claims. Secretary Dulles’ comments refer only to claims to be satisfied out of Japanese assets then located within the United States and to the role of Congress in distributing the balance of these particular assets. This interpretation makes especially good sense in the light of the stated purpose of the United States to prevent the economic collapse of post-war Japan by restricting recovery to those assets then under United States control. It has no bearing on the continued existence of claims if and when Japan’s economy might recover or if Japan demonstrated its ability to provide further compensation. Second, the structure of the text of the Peace Treaty provided many provisions in which the United States could declare explicitly that the remedies referred to in the Treaty were exclusive (or preclusive) with respect to all claims brought by private U. S. citizens. As even the most cursory examination of the text of the Treaty would disclose, no such explicit limitation is contained in the Treaty. Despite this, I am advised that an assertion to the contrary has been made by the Defendant corporations (and presumably by the Government of Japan) based on Article 14(b) which, by its terms, waives: . . .all reparations claims of the Allied Powers, [and] 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. . . . 3 Under international law and
practice, this provision does not operate in the manner asserted by these
Defendants. To the contrary, the most reasonable interpretation of the
wording used in this provision is that the Allied Powers (including the
United States) waived their respective rights to espouse in the future the
claims of their respective nationals arising out of the prosecution of the
war. Without such espousal, no claims based on private injuries and arising
under international law exist for the Allied Powers to pursue against the
Government of Japan. If this were not the intent of the waiver, the Allied
Powers – including the United States – would have put themselves in the
position of waiving unespoused claims in which they had no valid, legally
recognized interest. Under international law, an injured national’s government
has no recognized legally enforceable interest, and, therefore, no interest
to "waive," until the government espouses the injured individual’s
claim. This rule has particular significance for the United States. Under domestic law, the United States government cannot waive a claim that it does not "own," – that it has not espoused – without the consent of the owner of the claim.5 I am not aware of any indication that the former U.S. prisoners of war waived their claims, nor any evidence that the United States ever proposed espousal of these claims or formally espoused these claims. The fact that the former POWs have filed this law suit suggests precisely the opposite conclusion. Third, even if the Treaty could be construed to preclude private claims by United States nationals against Japanese nationals, this preclusive effect would have been overtaken by operation of the Most Favored Nation provision embodied in Article 26. Under that Article, Japan has extended unconditionally to every Allied Power (including the United States) the right to claim the same treatment from the Japanese government that Japan gives other nations with respect to war claims, regardless of any limitation that might be read into the original terms of the 1951 Treaty. This most-favored-nation clause, which is commonplace in treaties, is unconditional and unqualified. It operates automatically to give the United States and any other Allied Powers rights of any other nation to which the Japanese government might give more favorable treatment with respect to war claims than it gave to the parties to the Peace Treaty. Under standard practice in international law, the United States need take no formal action to avail itself of such more favorable terms. Furthermore, the time at which such more favorable terms might be granted to another nation is irrelevant to the rights of the United States to claim the benefit of those terms. The United States need not enter into additional negotiations with Japan in order to claim its most-favored-nation rights. The failure of the United States or any other Treaty party to take any formal or official steps to invoke its rights under the most-favored-nation clause does not, of itself, constitute a waiver of those rights, nor does such failure create an estoppel against the assertion of such rights. While I have not reviewed the totality of all treaties into which Japan has entered since World War II, I have reviewed at least eight in which the Japanese government has extended "more" favorable treatment to other nations than it did to the United States with respect to United States claims on behalf of its injured nationals. For example, Japan agreed in its peace treaty with Denmark to make payment for claims for injury to Danish nationals, without requiring release of claims against Japanese nationals as Japan required in the Peace Treaty with the United States. Similarly, Japan has paid claims of foreign nationals without requiring the release of claims against Japanese nationals, the quid pro quo that its nationals now seek to invoke through the strained interpretation of the 1951 treaty with the United States, discussed above. (See Japanese Treaties with Sweden, Switzerland, Spain, and The Netherlands.) Further, in their war claims settlement agreement, Japan agreed with Burma to reopen both the scope of waiver and the amount of payment that Japan was to make to settle claims against Japan by Burma. Japan has made no such offer to the United States. And, in its settlement with the Soviet Union, Japan agreed to limit the scope of its release of claims to those that arose after August 9, 1945. I am advised that the claims at issue in the suits brought by U.S. nationals against Japan arose before that date. In the light of these subsequent war claims agreements on terms more favorable to foreign nationals than those extended to nationals of the United States in the Peace Treaty, Japan must now be treated as having extended that same favorable treatment to claims by United States nationals. Those terms do not include any basis to assert that claims by United States nationals against Japanese nationals have been "waived" in any respect. Thus, I reiterate that, even if the Treaty could be construed to preclude private claims by United States nationals against Japanese nationals, this preclusive effect would have been overtaken by operation of the Most Favored Nation provision embodied in Article 26. CONCLUSION For all these reasons, I conclude that, in accordance with international law and practice, the 1951 Treaty should not, and cannot, be interpreted to preclude private actions by U.S. nationals against private Japanese nationals, and that Article 14(b) of that Treaty does not operate to effect any contrary rule. FOOTNOTES
1. Treaty of Peace with Japan of September, 8, 1951, 3 U.S.T. 3169 (hereinafter Peace Treaty). 2. Emphasis added. 3. Art. 14(b), Peace Treaty differs from that in which the United States government has espoused a claim and then decides to settle that claim without the consent of the claim’s original private owner. In those circumstances, once the United States government has espoused the claim, it has put the claim settlement process into the diplomatic realm. Private rights cannot limit the ability of the United State’s government to carry on effective diplomacy by agreeing with another government to compromise a claim once that claim has been espoused. http://www.senate.gov/~judiciary/6282000_hgm.htm |