DAVID W. OGDEN

Assistant Attorney General

Civil Division

ROBERT S. MUELLER, III

United States Attorney

DAVID J. ANDERSON

VINCENT M. GARVEY

MARTHA E. RUBIO

(California Bar No. 172492)

Attorneys, U.S. Department of Justice

Civil Division, Federal Programs Branch

Post Office Box 883

Washington, D.C. 20044

\(202\) 616-0680

Attorneys for the United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

In re WORLD WAR II ERA JAPANESE )

FORCED LABOR LITIGATION ) Master MDL Docket No. 1347

> )

THIS DOCUMENT RELATES TO: )

> )

*Heimbuch v. Ishihara Sangyo Kaisha Ltd.,* ) **STATEMENT OF INTEREST
OF**

> N.D. Cal. 3:00-0064 ) **UNITED STATES OF AMERICA**

*Alfano v. Mitsubishi Corp.,* )

> C.D. Cal. No. 2:00-3174 )

*Corre v. Mitsui & Co., Ltd.,* ) Judge: Hon. Vaughn R. Walker

> C.D. Cal. No. 2:00-999 ) Date: August 17, 2000

*Eneriz v. Mitsui & Co., Ltd.,* ) Time: 10 a.m.

> C.D. Cal. No. 2:00-1455 ) Ctrm: 9

*Hutchison v. Mitsubishi Materials Corp.,* )

> C.D. Cal. No: 2:00-2796 )

*Poole v. Nippon Steel Corp.,* )

> C.D. Cal. No 2:00-189 )

*Price v. Mitsubishi Corp.,* )

> C.D. Cal. No. 2:00-5484 )

*Solis v. Nippon Steel Corp.,* )

> C.D. Cal. No. 2:00-188 )

*Tenney v. Mitsui & Co., Ltd.,* )

> C.D. Cal. No. 2:99-11545 )

*Wheeler v. Mitsui & Co., Ltd.,* )

> C.D. Cal. No. 00-2057 )

*Titherington v. Japan Energy Corp.,* )

C.D. Cal. No. 00-4383 )

The United States recognizes our country\'s great debt to all Americans
who fought for the cause of freedom in the Second World War ("World War
II"), and especially to those, such as plaintiffs in these actions, who
endured horrific hardships as prisoners of war. There can be no dispute
about the moral force behind plaintiffs\' quest to redress the wrongs
done to them. Despite our deep sympathy with and admiration for the
plaintiffs, the United States is nonetheless compelled to file this
Statement of Interest in order to explain that plaintiffs' claims are
barred by international obligations entered into by the United States at
the close of World War II.[^1]

**PRELIMINARY STATEMENT**

At the conclusion of the Second World War, the United States condemned,
in the strongest possible terms, the Japanese Government's treatment of
American prisoners of war ("POWs"). In the Treaty of Peace with Japan of
September 8, 1951 (\"Peace Treaty\" or \"Treaty\"), the Japanese
Government recognized its obligations to pay reparations for the damage
and suffering caused by it during the war, and did so by providing
reparations to an extent never before seen in modern times. Under the
1951 Treaty, Japan gave the United States and its Allies the right to
seize and dispose of public and private Japanese assets located within
their territories. In return, in Article 14 of the Treaty, the Allied
nations expressly waived -- on behalf of themselves and their nationals
-- claims arising out of actions taken by Japan and its nationals during
the war.

In waiving all claims against Japan and its nationals, the Allied
nations assumed the responsibility for using seized Japanese assets to
provide compensation to their nationals in a manner each Allied
government deemed fair and equitable. In the United States, the seized
assets were placed into the War Claims Fund established pursuant to the
War Claims Act, 28 U.S.C. §§ 2001-2017, and distributed through the War
Claims Commission. This fund was intended to compensate former prisoners
and others for claims arising out of World War II in accordance with
priorities established by the Commission that placed the veterans of
Bataan and others who suffered similarly at the top of the list. Thus,
the War Claims Act created a monetary remedy for former prisoners of war
that was funded with the proceeds of the assets that were seized from
Japan and its nationals pursuant to the Peace Treaty.

The decision of the United States to join the 1951 Peace Treaty with
Japan --- together with 45 other nations --- reflected a broad,
bipartisan consensus within the Executive and Legislative Branches. The
national decision to sign and ratify the Peace Treaty was based on a
strong desire to ensure that Japan would develop into a democratic,
economically viable ally that would not fall under Communist sway, as
well as the hope of avoiding the disastrous consequences of the punitive
reparations provisions of the Versailles Treaty that ended World War I.
For this reason and in conjunction with the massive reparations paid by
Japan and its nationals through the seizure of property by Allied
nations, the Executive Branch and the Senate in its advise-and-consent
role determined that all claims against Japan and its nationals should
be waived.

Over the past five decades, the Treaty of Peace with Japan has served
U.S. security interests in Asia and supported peace and stability in the
region. The United States must honor its international agreements,
including the Peace Treaty with Japan. There is, in our view, no basis
for the U.S. or Allied citizens to reopen the question of international
commitments and obligations under the 1951 Treaty. It is the United
States' position that the claims of the United States, its nationals and
Allied nationals against Japan and its nationals arising out of their
conduct during the war were finally settled by the Treaty of Peace with
Japan in 1951. Moreover, the United States submits that the Treaty of
Peace preempts plaintiffs' state law causes of action.

For these reasons, and the reasons explained more fully below,
plaintiffs claims should be dismissed.

**BACKGROUND**

**I. THE 1951 TREATY OF PEACE WITH JAPAN**

**A. Treaty Provisions**

Article 14(b) of the 1951 Peace Treaty states that, \"\[e\]xcept 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\[.\]\" 3
U.S.T. 3169 (Exhibit 1). Likewise, under article 19(a) of the Treaty,
Japan waived all claims of Japan and its nationals against the Allied
Powers and their nationals arising out of the war and subsequent
occupation, including, for example, claims against the United States,
the manufacturers of the atomic and neutron bombs, and the individuals
who ordered and performed the bombings of Japan.

> **B.** **The Negotiation of the 1951 Peace Treaty**

The Treaty was sponsored by the United States as one \"that will work,\"
one \"which looks to the future, not the past\" in order to achieve the
goal of restoring \"normal relations between Japan and the rest of the
world.\" U.S. Dept. of State, [Record of Proceedings of the Conference
for the Conclusion and Signature of the Treaty of Peace with
Japan]{.underline}, at 33 (1951) (Statement of President Harry S.
Truman) (hereafter \"Record of Proceedings\") (Exhibit 2). In providing
for the resolution of all claims against Japan and its nationals arising
out of World War II, the Treaty \"recognizes the principle that Japan
should make reparations to the countries which suffered from its
aggression,\" without \"saddl\[ing\] the Japanese people with a hopeless
burden of reparations which would crush their economy in the years to
come.\" [Id.]{.underline} at 33-34. Ambassador John Foster Dulles, who
was responsible for negotiating the Treaty on behalf of the United
States, explained that the Treaty\'s compensation provisions reflected a
resolution of various \"conflicting considerations\" in a manner \"which
gives moral satisfaction to the claims of justice and which gives
material satisfaction to the maximum extent compatible with political
and economic health in the Pacific area.\" [Id.]{.underline} at 83
(Statement of John Foster Dulles).

The United States and Allied approach to reparations and other
war-related claims evolved throughout the Occupation period, as
conditions changed in Japan and the rest of the World, to reflect
various foreign and public policy goals. In the early years of the U.S.
Occupation of Japan, there understandably was a great deal of anger
towards the Japanese for their war crimes, and a general belief that
they should be forced to pay for the damages they caused.
[See]{.underline} John W. Dower, [Embracing Defeat: Japan in the Wake of
World War II]{.underline}, 89 (1999). These punitive sentiments
eventually gave way to a recognition of the increasing importance, for
several reasons, of reconstructing the Japanese economy.
[See]{.underline} Japanese Peace Treaty and Other Treaties Relating to
Security in the Pacific, S. Exec. Rep. No. 82-2, at 2-3 (1952) (Exhibit
3).

First, as it became obvious that the Soviet Union was pursuing
expansionist policies in the Far East, the Truman Administration came to
the conclusion that Japan would be needed as a key ally, and that the
U.S. could not allow Japan to fall into the Communist orbit.
[Id.]{.underline} It was believed that the Soviets held \"a great threat
over Japan\" and \"could, if they wanted to, tempt the Japanese by
offering a coalition of Russia, Communist China, and Japan, which, if it
should be formed, would . . . afford the Japanese opportunity to carry
out their own militaristic aggressive ambitions\[.\]\" Japanese Peace
Treaty Negotiations, March 9, 1951, [printed in]{.underline} Executive
Sessions of the Senate Foreign Relations Committee (Historical Series)
Vol. III, Part I, 82nd Cong., 1st Session, 1951, at 261 (1976)
(hereafter \"Japanese Peace Treaty Negotiations\") (Exhibit 4).

Second, it became evident that Japan\'s economy had been completely
devastated by the war, and that industry would need to be allowed to
recover in order for Japan to become a viable democratic nation and a
strong ally.^[2]{.underline}^[^2] The war had left nearly 9 million
Japanese people homeless. [See]{.underline} Dower, [supra]{.underline},
at 47‑48. Starvation, malnutrition and disease ravaged the general
populace. \"Between 1945 and 1948, over 650,000 people were reported to
have contracted cholera, dysentery, paratyphoid, smallpox, epidemic
typhus (spotted fever), scarlet fever, diphtheria, epidemic meningitis,
polio, and encephalitis. Of this number, official records reported the
deaths of 99,654 individuals.\" [Id.]{.underline} at 103. Even without
any "reparation burdens," the United States was "gravely" concerned
whether Japan could even "keep alive." [See]{.underline} Japanese Treaty
Negotiations, at 267.

Third, the U.S. Government, having taken on sole responsibility for
Japan\'s recovery during the Occupation, eventually realized that any
substantial payment of war-related claims ultimately would come out of
the American taxpayers\' pockets. [See]{.underline} Japanese Peace
Treaty Negotiations, at 266-67. U.S. officials did not "see any way" in
which reparations could "effectively be collected without in essence
having the United States pay the bill, as \[it\] did during the first
years of the German reparation under the Treaty of Versailles."
[Id.]{.underline} at 266. Moreover, during the first five years of the
Occupation, the U.S. Government spent approximately \$2 billion just
trying to maintain a viable economy in Japan and \"prevent \[the\]
spread of Communism.\" Telegram from the Secretary of State (Acheson) to
the Embassy in the Philippines (drafted by Dulles), Washington, July 12,
1951, [reprinted in]{.underline} Foreign Relations of the United States
1951, Vol. VI, Asia and the Pacific, at 1191 (1977) (Exhibit 7).

As a result, as early as 1947, the U.S. War Department already was
proposing more lenient reparations for Japan than initially had been
suggested by the State Department. General Douglas MacArthur, the
Commander in Chief of the Armed Forces in the Far East, \"proposed
rather generous terms to help Japan\'s economic recovery\" and \"was
against most reparations.\" Frederick S. Dunn, [Peace-Making and the
Settlement with Japan]{.underline}, 55 (1963). Others later concurred
that there was "no demonstrable capacity on the part of Japan to pay any
reparations at all." Japanese Peace Treaty Negotiations, at 267.

In 1950, President Truman appointed John Foster Dulles as a special
Foreign Policy Adviser to the Secretary of State, and assigned him the
specific task of negotiating a multilateral peace treaty with Japan.
Soon thereafter, Dulles prepared a widely-circulated memorandum
proposing that the treaty contain no provision for the payment of
war-related claims or economic restrictions of any kind.
[See]{.underline} Dunn, [supra]{.underline}, at
100.^[3]{.underline}^[^3] Dulles fully recognized the possibility that
Japan someday would be in a better economic position, and then might be
able to afford to pay such claims to its countless victims. Nonetheless,
in a statement he wrote for Secretary of State Acheson to deliver to the
President of the Philippines in August 1951, he noted that \"only
vigorous effort and industry by the Japanese will enable them to earn
enough foreign exchange to import what they need to live in decency.\"
Memorandum by the Secretary of State (Acheson) to the President,
Washington, August 7, 1951, [reprinted in]{.underline} Foreign Relations
of the United States 1951, Vol. VI, Asia and the Pacific, at 1245 (1977)
(enclosing Draft Proposed Statement to the Philippine Government drafted
by Dulles) (Exhibit 8). He further observed:

> This would be impossible if the Treaty kept alive the right of the
> Allies to demand monetary reparation payments. That would so impair
> public and private credit as to make essential capital developments
> impossible and so contract Japanese ability to finance exports and
> imports as to endanger Japan\'s survival as a member of the free
> world. It would destroy Japanese initiative because the Japanese would
> know that the greater was their exertion the more would be taken from
> them.
>
> It may be argued that no one can predict the future with certainty,
> and that events not now foreseen might give Japan a future ability to
> pay monetary reparation. That is true. But it is also true that if an
> economy is set up so that it must bear all unfavorable developments
> while deprived of the benefit of all favorable developments, there is
> lacking the balance needed to produce endeavor and to sustain credit,
> and disaster occurs which is not limited to the area dealt with.
>
> All of these lessons were taught by the Treaty of Versailles. Under it
> reparations claims destroyed German credit and will to work. The
> claims were sought to be enforced by the most determined effort that
> history records. Certain Allied armies occupied the industrial heart
> of Germany, they arrested the German industrialists for allegedly
> sabotaging reparations, and they operated mines and factories for
> reparation account. But the Treaty and all the efforts to enforce it
> produced no appreciable reparations, but did create grave divisions as
> between the principal allies and set in motion inflationary forces,
> first in Germany, and then on a world-wide scale which many observers
> believe were largely responsible for the tragic economic collapse
> which began in 1929 and lasted until World War II.

[Id.]{.underline}

To ensure that all war claims, brought either by individuals or by
governments, would be settled by the Peace Treaty, the U.S. suggested
the addition of the waiver provision that later became Article 14(b) of
the Peace Treaty. The U.S. justified this suggested addition with the
following comment:

> The insertion of clause (d) is proposed for the reason that the treaty
> should settle and dispose of all claims of the Allied Powers and their
> nationals arising out of the war. If no waiver were provided, some
> Allied governments or Allied nationals might continue to press such
> claims against Japan after the coming into force of the treaty.
> Settlement of claims in the treaty assures that no Allied government
> or Allied national receives preferential treatment. The language of
> the waiver follows closely the language of Article 19 in which Japan
> waives claims against the Allied Powers.

Japanese Peace Treaty: Working Draft and Commentary Prepared in the
Department of State, Washington, June 1, 1951, [reprinted
in]{.underline} Foreign Relations of the United States 1951, Vol. IV,
Asia and the Pacific, at 1084 (1977) (Exhibit 9).

Ultimately, the Peace Treaty provided, among other things, for the end
of the American Occupation, a return of Japan to the family of nations,
and reparations by Japan (through the asset-seizure mechanism) for
damages caused by wartime aggressions. Although unequivocally requiring
Japan to compensate Allied nations for war losses, the Peace Treaty
recognized that full payment for all damages was impossible if a
\"viable economy\" were to be created in Japan, [see]{.underline} Peace
Treaty, Article 14(a); S. Exec. Rep. No. 82-2, at 12, and that it was
"the duty and responsibility of each \[Allied\] government to provide
such compensation for persons under its protection as that government
deems fair and equitable." [Id.]{.underline} at 13.

**C.** **The Senate Advice and Consent To The 1951 Treaty Of Peace With
Japan**

As early as March 1951, Ambassador Dulles informed the U.S. Senate
Committee on Foreign Relations (the \"Committee\") in an Executive
Session that Japan had \"no demonstrable capacity . . . to pay any
reparations at all,\"and that he did not \"see any way in which
\[reparation liabilities could\] effectively be collected without in
essence having the United States pay the bill.\" Japanese Peace Treaty
Negotiations, at 266-67. He told the Committee that he had:

> encouraged the Japanese to believe that we would not, on the one hand,
> have reparations burdens imposed on them, but on the other hand they
> could not count on any continuance of the United States subsidy . . .
> \[W\]e have been putting up sums which now amount to \$2 billion in
> aid of Japan\'s economy during the 5 ½ years of the occupation. I have
> said that \"With peace, that will have to stop and you will have to
> stand on your own two feet,\" and I made that perfectly clear that
> they could not count upon continuing economic help from the United
> States.

[Id.]{.underline} at 267.

The Senate Committee on Foreign Relations unanimously recommended that
the Senate give its advice and consent to ratification of the Treaty.
[See]{.underline} S. Exec. Rep. No. 82-2, at 4. The Foreign Relations
Committee warned that requiring payment of war claims \"in any
proportion commensurate with the claims of the injured countries and
[their nationals]{.underline}\" would be \"contrary to the basic
purposes and policy of the free nations, the Allied Powers, and the
United States in particular\" in the Far East. [Id.]{.underline} at 12
(emphasis supplied). The Committee described article 14(a) as containing
\"the unequivocal provision that Japan should pay reparations to the
Allied Powers for the damage and suffering it caused during the War,\"
but recognized that, \"\[a\]t the same time, article 14(b) states that,
except as otherwise provided, the Allied Powers waive [all]{.underline}
reparations and claims against Japan.\" [Id.]{.underline} (emphasis
supplied).

The Committee informed the Senate that the Treaty\'s \"provisions do not
give a direct right of return to individual claimants except in the case
of those having property in Japan.\" [Id.]{.underline} at 13;
[see]{.underline} [also]{.underline} Japanese Peace Treaty and Other
Treaties Relating to Security in the Pacific: Hearings Before the Senate
Comm. on Foreign Relations, 82nd Cong. 2nd Sess., at 144-45 (1952)
(hereafter \"Committee Hearings\") (the Treaty\'s waiver provision
\"closes\" and \"locks\" the gate on all avenues of recovery) (Exhibit
10). In recommending that the Senate give its advice and consent to
ratification of the Treaty, the Committee emphasized Japan\'s
willingness to \"shoulder\" reparations, and the unprecedented magnitude
of reparations it had already paid. [See]{.underline} S. Exec. Rep. No.
82-2, at 12, 14. It also noted that, "\[b\]ecause of the limited ability
of Japan to pay its legitimate claims, our allies in the treaty waive
their claims and those of [their nationals]{.underline} in the same way
we do." [Id.]{.underline} at 13 (emphasis supplied).

The Committee held exhaustive public hearings in January 1952 on the
specific issue of reparations claims. The records of these hearings
confirm that the Senate was well aware that all individual claims were
being waived by Article 14(b), and that such claims would be dealt with
exclusively through legislation. [See]{.underline} Committee Hearings,
at 144-45. During the hearings, various objections and questions were
raised concerning compensation for individual claims. In particular,
objections were made to the waiver of these claims. One legislator even
attempted to limit the effect of Article 14(b) by proposing a
reservation to the Treaty stating that \"nothing contained in this
Treaty shall be construed to abrogate the . . . just and proper claims
of private citizens of the United States.\" [See]{.underline} 98 Cong.
Rec. 2365, 2567-71 (1952) (Exhibit 11). In a memorandum, Adrian S.
Fisher, the Legal Adviser for the U.S. Department of State, informed
Secretary of State Acheson that this reservation was \"in direct
conflict with Article 14(b),\" and that, if this reservation were added
to the Treaty during the ratification process, \"a renegotiation of the
Treaty Article would unquestionably ensue.\" Memorandum to The Secretary
from Mr. Fisher (the Legal Adviser), dated March 19, 1952, at 4, 5
(Exhibit 12).

The State Department instead recommended that Congress adopt the War
Claims Commission\'s suggestion that Congress amend the War Claims Act
of 1948 \"to provide for the receipt, adjudication and payment of claims
. . . resulting from mistreatment, personal injury, disability, or
impairment of health caused by the illegal actions of any enemy
government during World War II.\" Committee Hearings, at 147. Congress
eventually accepted this invitation, and amended the War Claims Act to
\"create\[\]a domestic mechanism for distributing captured Japanese
assets,\" which entitled members of the putative class \"to detention
benefits for the period of imprisonment in Japan.\" [Aldrich v. Mitsui &
Co. (USA)]{.underline}, Case No. 87-912-Civ-J-12, slip op. at 3 (M.D.
Fla. Jan. 20, 1988) (citing 50 U.S.C.App. §§ 2004 & 2005 (1994))
(Exhibit 13).

The Senate gave its advice and consent to the Treaty on March 20, 1952,
by a vote of 66 to 10, without adding a single reservation pertaining to
war claims in its resolution of advice and consent. 98 Cong. Rec. 2594
(1952) (Exhibit 14). The Treaty was considered as part of a package with
three additional security treaties relating to the Pacific region,
reflecting the United States\' view of the Treaty as an integral part of
its political and foreign relations goals in that region.
[See]{.underline}, [e.g.]{.underline}, 98 Cong. Rec. 2327, 2361, 2450,
2462 (1952) (Exhibit 15). The Senate resolutions of its advice and
consent for all of these treaties were adopted at the same time.
[See]{.underline} 98 Cong. Rec. at 2594.

> **D. Assets Seized Pursuant To The 1951 Peace Treaty**

Under the Treaty, the government of Japan volunteered the use of
property to provide reparations and compensation for \"the damage and
suffering\" inflicted by Japan and its nationals \"during the war.\"
Treaty, Art. 14(a). Indeed, private Japanese nationals who had property
or other assets located outside Japan paid a heavy price under the 1951
Peace Treaty to satisfy the requirements of this system. It is customary
international practice for nations at war to freeze assets of enemy
nationals and hold them in \"trust,\" but it is also the custom to
return such assets to their proper owners at the conclusion of
hostilities. [See]{.underline} James A. Gathings, [International Law and
American Treatment of Alien Enemy Property]{.underline}, v (1940)
(Introduction written by Edwin Borchard).

Nonetheless, this seizure practice was legitimized in Article 14(a)(2)
of the 1951 Peace Treaty.^[4]{.underline}^[^4] Pursuant to that Article,
assets valued at approximately \$ 4 billion located in Allied territory,
were confiscated by Allied governments, and their proceeds distributed
to Allied nationals in accordance with domestic legislation.
[See]{.underline} Comments on British Draft, Memorandum by the Officer
in Charge of Economic Affairs in the Office of Northeast Asian Affairs
(Hemmendinger) to the Deputy to the Consultant (Allison), April 24,
1951, [reprinted in]{.underline} Foreign Relations of the United States
1951, Vol. VI, Asia and the Pacific, at 1016 (1977) (Exhibit 16).
Pursuant to Article 16, approximately \$ 20 million worth of Japanese
assets located in ex-enemy and neutral countries were liquidated and the
proceeds distributed to Allied POWs and civil internees through the
International Red Cross. [See]{.underline} Aide-Memoire from the
Department of State to the British Embassy, [reprinted in]{.underline}
Foreign Relations of the United States 1951, Vol. VI, Asia and Pacific,
at 924 (1977) (Exhibit 17). The total value of Japanese owned assets
located in U.S. territory (including the Philippines) was estimated in
1952 to be worth over \$90 million. [See]{.underline} Japanese Peace
Treaty Negotiations, Feb. 5, 1952, [printed in]{.underline} Executive
Sessions of the Senate Foreign Relations Committee (Historical Series),
Vol. IV, 82nd Cong., 2nd Session, (1952), at 121-22 (1976) (Exhibit 18).
Pursuant to the War Claims Act of 1948, these assets were seized by the
Office of Alien Property (an office within the U.S. Department of
Justice), liquidated, and the proceeds placed into a War Claims Fund,
for ultimate distribution to prisoners of war and other claimants. As
Ambassador Dulles explained:

> 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, civilian and [prisoners of
> war]{.underline}, and it remains for Congress to decide what it wants
> to do with the balance.

[Id.]{.underline} at 121 (emphasis supplied). Funds to pay reparations
mostly were provided from the confiscation of assets of Japanese
businesses, in accordance with United States and Allied
policy.^[5]{.underline}^[^5]

The Treaty specifies that the payment of reparations and other
war-related claims under Articles 14 and 16 of the Treaty were to be a
full and final settlement. Moreover, under Article 14(a)(2)(II)(c)(iv)
of the Treaty, forfeiture of those assets which came into the
jurisdiction of American courts as a consequence of the resumption of
trade and financial relations following the war were excepted from
forfeiture. "This provision strongly suggests an intention to leave
Japan alone to rebuild its economy, a goal incompatible with plaintiff's
unjust enrichment claim, notwithstanding the present economic strength
of Japan." [Aldrich]{.underline}, Case No. 87-912-Civ-J-12, slip op. at
3.

**II. THE WAR CLAIMS ACT**

In an unanimously favorable report on the Treaty, the Senate Committee
on Foreign Relations expressly recorded its decision that \"the
reparations provisions of the Treaty are eminently fair,\" and that it
\"is the duty and responsibility of each \[Allied\] government to
provide such compensation for persons under its protection as that
government deems fair and equitable, such compensation to be paid out of
reparations that may be received from Japan or from other sources.\" S.
Exec. Rep. No. 82-2, at 12-13. Consistent with the United States\'
\"duty and responsibility\" to provide such \"compensation for persons
under its protection as it deems fair and equitable,\"
[id.]{.underline}, Congress amended the War Claims Act of 1948, 50
U.S.C. App. §§ 2001-2017 (1994), to afford compensation to prisoners of
war held in Japan. 50 U.S.C. App. § 2005(d) (1994).

The War Claims Act of 1948 had established a system of compensation for
prisoners of war like plaintiffs and certain other victims of World War
II. The Act established a War Claims Commission (now the Foreign Claims
Settlement Commission), which initially was authorized to adjudicate
claims \"filed by any prisoner of war for compensation\" for specified
violations of the Geneva Convention of July 27, 1929, suffered while a
prisoner of war, including claims for violations \"relating to labor of
prisoners of war.\" 50 U.S.C.App. § 2005 (1994). These claims covered
inadequate food, inhumane treatment, and certain types of forced labor.
The Act was prompted by Congress\' desire \"to facilitate the giving of
immediate relief to those American citizens who were imprisoned by the
enemy during the war.\" Amending the Trading with the Enemy Act, as
Amended; to Create a Commission to Make an Inquiry and Report with
Respect to War Claims; and to Provide For Relief For Internees in
Certain Cases, S. Rep. No. 80-1742, at 7 (1948) (Exhibit 19).

Congress acknowledged that \"the question of war claims . . . is too
complex to be approached by the Congress on a piecemeal basis and that
the subject in its entirety must be studied thoroughly before any
intelligent action can be taken\[.\]\" Amending the Trading with the
Enemy Act; Creating a Commission to Make Inquiry and Report with Respect
to War Claims; and Providing Relief for Internees in Certain Cases, H.R.
Rep. No. 80-976, at 4 (1947) (Exhibit 20). Therefore, Congress charged
the Commission with recommending types of claims to be accepted,
adopting the procedures for considering claims, and establishing uniform
standards for handling such claims. 50 U.S.C. App. § 2007 (1994); 94
Cong. Rec. 564-69 (1948) (Exhibit 21). Congress anticipated the
Commission would ensure that \"the claims . . . be handled in accordance
with priorities, priorities to be established for, we will say, the
veterans of Bataan and others who have suffered similarly, as being No.
1 for consideration.\" 94 Cong. Rec. at 567.

A proposal that would have allowed federal courts to adjudicate war
compensation claims was rejected because of the complexity of the issues
and the need to have the claims \"classified by experts who are
qualified so to do\" in order to \"get some rationality out of this
situation \[and\] to determine the categories of claims that should be
allowed.\" 94 Cong. Rec. at 564. There can be no doubt that Congress did
not want claims within the Commission\'s jurisdiction to be adjudicated
by the courts, because it barred even judicial review of the
Commission\'s decisions \"by mandamus or otherwise.\" 50 U.S.C. App. §
2010 (1994). Following ratification of the Treaty with Japan, and
Congress\' recognition of the Treaty\'s limitations on reparations, the
War Claims Act further was amended to afford additional compensation to
American prisoners of war held by the Japanese. 50 U.S.C. App. § 2005(d)
(1994).

Consistent with its Congressional mandate, the War Claims Commission
paid claimants who were prisoners of war in the hands of the Japanese a
specific amount for each day of captivity of the war. Specifically,
prisoners of war were paid \$1 per day for each day the government by
which they were held violated its obligation to furnish them the
quantity of food to which they were entitled as prisoners under the
Geneva Convention related to prisoners of war. Individuals also were
paid \$ 1.50 per day for each day they were used as forced labor or
otherwise mistreated in violation of the Geneva Convention.
[See]{.underline} Foreign Claims Settlement Commission of the United
States, Second Semiannual Report to the Congress (Exhibit 22). A person
who was captured at Bataan and remained a prisoner of war for the
duration of the war would have been paid approximately
\$ 3,103.50.^[6]{.underline}^[^6] Adjusted for inflation using published
Consumer Price Indexes for June 1951 (25.9%) and June 2000 (172.3%), the
present day value of that amount is approximately \$ 20,646.
[See]{.underline} Bureau of Labor and Statistics, Table Containing
History of CPI‑U U.S. All Items Indexes and Annual Percent Changes From
1913 to Present, ([http://stats.bls.gov/cpihome.htm).]{.underline}

**III. THE MULTIDISTRICT LITIGATION**

> Pursuant to section 354.6 of the California Code of Civil Procedure,
>
> Any Second World War slave labor victim, or heir of a Second World War
> slave labor victim, Second World War forced labor victim, or heir of a
> Second World War forced labor victim, may bring an action to recover
> compensation for labor performed as a Second World War slave labor
> victim or Second World War forced labor victim from any entity or
> successor in interest thereof, for whom that labor was performed,
> either directly or through a subsidiary or affiliate. That action may
> be brought in a superior court of this state, which shall have
> jurisdiction over that action until its completion or resolution.

Cal. Civ. Pro. Code § 354.6. The statute of limitations was extended to
December 31, 2010. [Id.]{.underline}

Invoking this provision, several individual and class actions lawsuits
were filed in California courts by plaintiffs seeking to recover from
defendant Japanese companies damages for back wages and injuries
allegedly suffered as prisoners of war during World War II. After many
of those actions were removed to federal court, the Judicial Panel on
Multidistrict Ligation transferred 18 cases to this Court in a June 5,
2000 Order. Five other cases were conditionally transferred to the
Court. It is the United States' understanding that there are ten related
cases pending in the Superior Courts of Orange and Los Angeles counties.

On March 24, 2000, the District Judge William H. Alsup requested the
views of the United States in[Heimbuch, et al. v. Ishihara Sangyo
Kaisha, Ltd., et al.,]{.underline} Civil File No. C 00-00064 WHA, on
whether federal law governs any claims by plaintiffs captured and
imprisoned by Japan during World War II, where such claims are directed
to private Japanese companies for whom plaintiffs allege they were
forced to work as slaves, and whether removal of such claims to federal
court is proper. On May 22, 2000, the United States filed a Statement of
Interest asserting that the Treaty of Peace and the War Claims Act
completely supplanted plaintiffs' claims.

**STATEMENT**

**I. THE 1951 TREATY OF PEACE WITH JAPAN WAIVES ALL CLAIMS OF UNITED
STATES AND ALLIED NATIONALS AGAINST JAPAN AND ITS NATIONALS**

> **A. The Text of the Peace Treaty Expressly Waives Claims of U.S. and
> Allied Nationals Against the Japanese Government and Japanese
> Nationals for All War-Related Claims In Article 14(b)**

Article 14(b) of the 1951 Peace Treaty states that, \"\[e\]xcept 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.\" 33 U.S.T.
3169. ^[7]{.underline}^[^7] [See]{.underline} [also]{.underline}
discussion [infra]{.underline} at 25-26 (noting that the "except as
otherwise provided" language in the Treaty refers to Articles 14(a)(1),
14(a)(2), 15, and 16). Article 14(b) does not waive claims only against
the Government of Japan, but [all]{.underline} claims, whether such
claims are based on actions of the Government of Japan or actions of
Japanese private nationals. The Peace Treaty defines \"nationals\" to
include \"juridical persons,\" and juridical persons includes business
corporations. Nor is the waiver limited to claims that would fall within
a strict definition of \"reparations.\" The Treaty specifically waives
[reparations]{.underline} claims of the Allied Powers, and all
[other]{.underline} war-related claims of the Allied Powers
[and]{.underline} their nationals. The text of Article 14(b) also
provides no indication that its drafters intended.

anything other than to extinguish the claims of private
nationals.^[8]{.underline}^[^8] As nationals of the United States and
Allied countries, the prisoner of war plaintiffs before this Court
clearly fall within the express terms of Article 14(b)'s waiver of
claims. Plaintiffs are suing the American subsidiaries of Japanese
national business corporations. Moreover, their claims arose "in the
course of the prosecution of the war."^[9]{.underline}^[^9] Plaintiffs
allege, for example, substantial and active participation by the
Japanese Government in subjecting POWs to forced
labor.^[10]{.underline}^[^10] [See]{.underline}, [e.g.]{.underline},
Deposition of Alfred Berest at 20, 23 (agreeing that he had been
"constantly under the control of the Japanese military" and stating
belief that the camp where he was interned was controlled by Japanese
soldiers) (filed in [Heimbuch, et al. v. Ishihara Sangyo Kaisha Ltd., et
al.]{.underline}, N.D. Cal. Civil Action No. 00-0064); Deposition of
William R. Lowe, at 30 (noting that Japanese soldiers with weapons
guarded the camp where he was interned) (filed in
[Heimbuch]{.underline}, [supra]{.underline}).

Indeed, the conduct that forms the basis of plaintiffs\' claims was the
direct result of laws and policies toward POWs adopted by the Government
of Japan to aid its war effort. The war-time Japanese economy was an
integral part of Japan's mobilization for "total war." [See]{.underline}
Dower, 529-30. "The complexities of mobilizing an industrialized nation
for total war required them \[the military\] to take Japan's other
vested interests into partnership. They enlisted the aid of the leaders
of big business, whose expertise was crucial in exploiting the resources
of the Japanese Empire and in designing and building new weaponry."
Meirion and Susie Harries, [Sheathing the Sword: The Demilitarization of
Japan]{.underline}, 4 (1987). By the late 1930s, industry, commerce and
finance in Japan were dominated by an interlocking series of
monopolistic combines called *zaibatsu*. [Id.]{.underline} at 5. The
*zaibatsu* rose to positions of prominence by collaborating closely with
the military. [See]{.underline} Dower, at 529-30. "The zaibatsu
factories were called upon to provide equipment, their shops to provide
transport, their banks for finance, and their overseas branches were
useful bases for intelligence-gathering." Harries, at 53. The military
and *zaibatsu* cooperated to create an economy devoted to the pursuit of
the war, and it is clear from plaintiffs' complaints and statements that
the very purpose of pressing prisoners of war into forced labor was to
shore up industrial support for this total war effort.

The language of the Peace Treaty thus indicates that plaintiffs' claims
against defendants were waived and settled in 1951. To read Article
14(b)'s provision as not applying to U.S. and Allied prisoners of war
would not only would be contrary to the express language of the
agreement, but would also require an impermissible judicial amendment to
the Peace Treaty. [See]{.underline} [Chan v. Korean Air Lines,
Ltd.]{.underline}, 490 U.S. 122, 134 (1989) ("where the \[treaty\] text
is clear, as it is here, we have no power to insert an amendment");
[Victoria Sales Corp. v. Emery Air Freight, Inc.]{.underline}, 917 F.2d
705, 707-08 (2d Cir. 1990) (where "the text of a treaty is clear, a
court shall not, through interpretation, alter or amend the treaty")
(citing [Chan]{.underline}, 490 U.S. at 134). The Court, in short, must
be "governed by the text -- solemnly adopted by the governments of many
separate nations\[.\]" [Chan]{.underline}, 490 U.S. at 134. The claims
of U.S. and Allied nationals in these lawsuits, therefore, should be
dismissed.

> **B. The Negotiating, Drafting, and Ratification History of the Peace
> Treaty Evidence an Intent to Expunge All Individual Claims Against
> Japan and its Nationals Through Article 14(b)**

It is well-established that the "clear import of treaty language
controls unless 'application of the words of the treaty according to
their obvious meaning effects a result inconsistent with the intent or
expectations of its signatories.'" [Sumitomo Shoji America, Inc. v.
Avagliano]{.underline}, 457 U.S. 176, 180 (1982) (quoting [Maximov v.
United States]{.underline},

373 U.S. 49, 54 (1963)).^[11]{.underline}^[^11] In the case of the 1951
Peace Treaty, no contrary intent or expectations undermining the clear
text are evident in the historical record. Instead, a review of the
negotiating and drafting history, as well as the legislative record of
the Senate\'s advice and consent, reveals that the Peace Treaty was
intended to waive all claims of U.S. and Allied nationals against Japan
and Japanese nationals without exception.

As indicated previously, the Allied governments, particularly the United
States, were concerned that imposing heavy burdens on the Japanese
economy could result in a weak Japan and, as a result, continued
dependence on American aid and an expansion of Soviet influence.
[See]{.underline} discussion [supra]{.underline} at 10. Thus, in
furtherance of critical national security and other interests, the
United States and the other Allied Powers sought to achieve a peace that
would permit Japan to recover economically, and join Western nations.
[Id.]{.underline} Waiving reparations and other claims against the
Government of Japan and Japanese nationals was intended to advance this
policy goal. [Id.]{.underline} It is in this context that John Foster
Dulles drafted and negotiated Article 14(b)'s waiver provision.

The provision waiving all claims of Allied nationals against Japan and
its nationals appeared in the earliest drafts of the Peace Treaty.
Specifically, following the circulation of a joint U.S.-U.K. draft in
May 1951,^[12]{.underline}^[^12] the U.S. suggested the following
addition to Article 15 (which is now Article 14):

> Except as otherwise provided in the present Treaty, reparations claims
> of the Allied Powers, other claims of the Allied Powers and their
> nationals (including juridical persons) arising out of any actions
> taken by Japan and its nationals in the course of the prosecution of
> the war (including claims arising out of the treatment accorded by
> Japan to prisoners of war and civilian internees), and claims of the
> Allied Powers for direct military costs of occupation shall be deemed
> to be satisfied out of the Japanese assets subject to their respective
> jurisdiction in accordance with the foregoing and out of assets
> received from the Japanese home islands during the occupation.

[See]{.underline} Japanese Peace Treaty: Working Draft and Commentary
Prepared in the Department of State, Washington, June 1, 1951,
[reprinted in]{.underline} Foreign Relations of the United States 1951,
Volume VI, Asia and the Pacific, at 1082.^[13]{.underline}^[^13] In
proposing the provision, the United States explained that it was
intended to "settle and dispose of [all claims]{.underline} of the
Allied Powers and their nationals arising out of the war."
[Id.]{.underline} at 1084 (emphasis supplied).

The language proposed by the United States in connection with the May
draft was streamlined and consolidated with Article 14 in a June draft
of the treaty. Despite the changes, the provision still made clear that
the Allied governments intended to waive the claims of their nationals
against Japan and Japanese nationals through the treaty:

> 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.

[See]{.underline} Revised United States-United Kingdom Draft of a
Japanese Peace Treaty, June 14, 1951, [reprinted in]{.underline} Foreign
Relations of the United States 1951, Volume VI, Asia and the Pacific, at
1127 (1977) (Exhibit 25).

The understanding that Article 14(b) waived all claims is clearly
evidenced by the subsequent statements and actions of the Treaty's
signatories. For example, the Dutch initially balked at signing the
Treaty precisely because it waived all the claims of its nationals. On
September 3, 1951, just five days before the Peace Treaty was to be
signed at the San Francisco Peace Conference, Dirk U. Stikker, the Dutch
Foreign Minister and head Dutch delegate at the Peace Conference, met
with Dulles in San Francisco to inform him that the former Dutch
civilian internees who had been held captive by the Japanese in
Indonesia were protesting "because the Japanese Peace Treaty draft
appeared to commit the Dutch government to the abandonment of all
possibility of private individual claims against the Japanese
Government" and that it was not clear that the Dutch constitution
allowed the government to extinguish their claims. Memorandum of
Conversation, by the Deputy Director of the Office of British
Commonwealth and Northern European Affairs (Satterthwaite), San
Francisco, September 3, 1951, [reprinted in]{.underline} Foreign
Relations of the United States 1951, Volume VI, Asia and the Pacific, at
1324 (1977) (Exhibit 26). At Dulles' urging, the Dutch government
publicly announced that its domestic constitution limited its ability to
expropriate the private property of its nationals and suggested "that
there \[were\] certain types of private claims by allied nationals,
which \[the Dutch government\] assume\[d\] the Japanese Government might
want voluntarily to deal with in its own way as a matter of good
conscience or of enlightened expediency." Letter from Dirk U. Stikker,
Minister of Foreign Affairs of the Netherlands to His Excellency Shigeru
Yoshida, Prime Minister of Japan, Sept. 7, 1951 (Exhibit 27). The
Japanese Government, also at Dulles' suggestion, responded to Stikker's
comments in a letter, stating:

> \[T\]he Japanese Government points out that, under the Treaty, Allied
> nationals will not be able to obtain satisfaction regarding such
> claims, although, as the Netherlands Government suggests, there are
> certain types of private claims by Allied nationals which the Japanese
> Government might wish [voluntarily]{.underline} to deal with.

Memorandum of Conversation, by the Deputy Director of the Office of
British Commonwealth and Northern European Affairs (Satterthwaite), San
Francisco, September 4, 1951, [reprinted in]{.underline} Foreign
Relations of the United States 1951, Volume VI, Asia and the Pacific, at
1333 (1977) (Exhibit 28) (emphasis supplied).^[14]{.underline}^[^14] The
Dutch Government later admitted that "it achieved but little in this
respect," but nevertheless signed the Treaty. [See]{.underline}
Translation of Passages of the Netherlands Government's Explanatory Note
on the Draft Bill for the Ratification of the Japanese Peace Treaty
Introduced into the Second Chamber on December 9th (Dec. 12, 1951), at
4; A List of Treaties and Other International Agreements of the United
States in Force on January 1, 1999 (collectively Exhibit 29).

Moreover, as one of the main architects of the agreement, Dulles
repeatedly made clear that a complete and final settlement of all Allied
claims and those of their nationals was absolutely essential to any
peace treaty with Japan. [See]{.underline} discussion
[supra]{.underline} at 6-8. For example, in a response to a letter from
a former prisoner of war urging that the United States force Japan to
compensate American citizens for their losses, Dulles was quoted as
stating:

> We had no argument to make against the justice of reparation claims.
> We had to point out, however, that reparation is not merely a matter
> of justice, it is a matter of economics.
>
> The fact is that a nation situated as is Japan can barely pay for its
> essential imports in food and raw materials. To require reparation
> payments means either that the United States must pay the reparation
> bill or there will be default preceded by widespread starvation and
> unemployment. This would assure the conquest of Japan by communism
> \[.\]

Letter from Jack K. McFall, Assistant Secretary, to Senator Tom
Connally, March 29, 1951 (Exhibit 30) (recommending response to a
constituent's inquiry).

Consistent with Dulles' understanding, the legislative record of the
treaty ratification process also demonstrates that the U.S. Government
was fully aware that the Peace Treaty was waiving all war-related claims
of U.S. and Allied nationals against Japan and its nationals. During
public hearings on the Treaty's ratification, for example, the Senate
heard from Roy G. Allman, an attorney in Washington, D.C. who had
practiced law for several years in China. Allman specifically objected
to the waiver of individual claims, saying that Article 14(b) was one of
the "weasel clauses" of the treaty, what he considered "illegal acts of
this government against its own nationals by waiving the claims of
Americans." Committee Hearings, at 134. He stated, "\[t\]his prevents
these citizens from filing a claim against the Japanese Government [or
its nationals]{.underline}. It forever shuts them off."
[Id.]{.underline} (emphasis supplied). He then presented the Senate
Foreign Relations Committee with a list of claims based on property loss
in China totaling \$34 million. [Id.]{.underline} Senator Hickenlooper,
who questioned Allman at length, responded:

> I will say to you, Mr. Allman, that I have been interested somewhat in
> this particular provision of the treaty, and I raised substantial
> objection to the failure to protect the rights of American citizens
> whose property had been arbitrarily seized or confiscated by the
> Japanese . . . I am frank to say what can be done about it at this
> moment I don't know. The impracticability of overturning this treaty
> at the moment is very apparent to you, I am sure --- I mean the
> difficulties involved.

[Id.]{.underline} at 142.

Similarly, when one Senator attempted to limit the effect of Article
14(b) by proposing a reservation to the Treaty stating that "nothing
contained in this Treaty shall be construed to abrogate the . . . just
and proper claims of private citizens of the United States," the State
Department noted that the proposed reservation was "in direct conflict
with Article 14(b)," and that, if added, "a renegotiation of the Treaty
Article would unquestionably ensue." Memorandum to the Secretary of
State from Adrian S. Fisher (Legal Advisor) dated March 19, 1952, at 4.
The State Department instead recommended that Congress adopt the War
Claim Commissioner's suggestion that Congress amend the War Claims Act
of 1948 to distribute proceeds from seized assets to those individuals
who suffered from the illegal actions of Japan, such as American
prisoners of war. [See]{.underline} discussion [supra]{.underline} at 9.
As Ambassador Dulles later noted, "\[a\]pproximately \$ 20 million \[of
seized Japanese assets\] have been used to take care of claims which
have been approved by the Congress on behalf of internees, civilian and
prisoners of war\[.\]" [See]{.underline} Japanese Peace Treaty
Negotiations, Feb. 5, 1952, [printed in]{.underline} Executive Sessions
of the Senate Foreign Relations Committee (Historical Series), Vol. IV,
82nd Cong., 2nd Session, 1952, at 121-22.

The historical record simply does not support the claim that the
Treaty's drafters or signatories intended to exempt U.S. and Allied
prisoners of war from 14(b)'s broad waiver of claims. On the contrary,
everything that is known about the United States' goals for both the
occupation of Japan and the peace settlement indicate that the United
States considered the rebuilding of Japan's economy an overriding
priority. [See]{.underline} discussion [supra]{.underline} at 3-8. This
goal would not have been served had the Peace Treaty left open the
possibility that Japanese corporations would be subject to a multitude
of lawsuits such as those advanced by the plaintiffs here; particularly
since Japanese nationals had already paid a heavy price when their
assets in the United States and elsewhere were seized and sold off in
settlement of war claims pursuant to the Treaty. [See]{.underline}
Memorandum from General Headquarters of Supreme Command of Allied Powers
to the Department of the Army, pt. 1, at ¶ 7 (Dec. 14, 1948) (noting
that the Japanese had \"contributed reparations . . . to an extent never
before even remotely approached in modern times\") (Exhibit 31);
discussion [supra]{.underline} at 11. The United States fully recognized
the possibility that the Japanese someday might be in a better economic
position to allow them to pay reparations. Nevertheless this country and
its Allies determined in 1951 that a full and lasting peace required
that all claims by the Allied governments and its nationals be fully and
finally settled in the Treaty of Peace. [See]{.underline} discussion
[supra]{.underline} at 6 (summarizing Dulles' statement); Treaty,
Article 14(a)(2)(II)(c)(iv) (exempting from seizure any property that
came within the jurisdiction of the Allies after September 2, 1945);
[see also]{.underline} [Aldrich]{.underline}, Case No. 87-912-Civ-J-12,
slip op. at 3 (explaining that the Treaty and its history "strongly
suggests an intention to leave Japan alone to rebuild its economy, a
goal incompatible with plaintiff\[s'\] unjust enrichment claim\[s\],
notwithstanding the present economic strength of Japan."). This
interpretation, understood by those who drafted and ratified the Treaty
in 1951, remains binding on the United States and its courts today.
Accordingly, the claims of U.S. and Allied nationals in these lawsuits
should be dismissed.

> **C. No Other Provision in the Treaty Exempts the Claims of U.S. or
> Allied Prisoners of War from Article 14(b)'s Waiver**

As indicated previously, Article 14(b) of the 1951 Peace Treaty states
that, \"\[e\]xcept 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\[.\]\" The phrase \"\[e\]xcept as otherwise
provided in the present Treaty\" refers to the following provisions:

> Article 14(a)(1), which obligated Japan to enter into negotiations
> with Allied Powers whose territories Japan occupied during the war,
> for the ultimate purpose of contributing Japan\'s services to assist
> with the rebuilding of those countries;
>
> rticle 14(a)(2),which allowed the Allied Powers to liquidate assets
> located in their territories which were owned by either Japan or
> Japanese nationals, and use the proceeds in settlement of their
> war-related damages;
>
> Article 15, which obligated Japan to return to the Allied Powers and
> their nationals any property or interests in property that were
> located in Japan;
>
> Article 16, which provided for the seizure and liquidation of
> Japanese-owned assets in neutral or formerly hostile countries, the
> proceeds from which would be distributed to prisoners of war and their
> families through the International Committee for the Red Cross.

None of the above-listed provisions, nor any other provision in the
Peace Treaty, allows for a claim to be brought by U.S. or Allied
national against Japanese nationals based on their war-related
misconduct.

> **1. Article 26 does not provide a basis to avoid the broad waiver in
> Article 14(b)**

Article 26 of the Treaty does not provide a basis to avoid the broad
waiver in Article 14(b). Article 26 states that, "\[s\]hould 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." To the extent there is an argument that any other treaty might
provide \"greater advantages\" than the Peace Treaty, such a
determination rests solely in the hands of the United States.

First, Article 26 specifically states that "advantages shall be extended
to the [parties]{.underline} present to the Treaty," [viz.]{.underline}
signatory governments and not individual citizens. Treaty, Article 26
(emphasis supplied). Article 26 thus does not create private rights or
authorize private parties or courts to rewrite the Peace Treaty based on
the conjecture that another country\'s treaty is more favorable than the
Peace Treaty. ^[15]{.underline}^[^15] This interpretation is consistent
with the well-established principle that \"\[i\]nternational treaties
are not presumed to create rights that are privately enforceable.\"
[Goldstar (Panama) S.A. v. United States]{.underline}, 967 F.2d 965, 968
(4th Cir.), [cert. denied]{.underline}, 506 U.S. 955 (1992).
[Accord]{.underline} [United States v. Li]{.underline}, 206 F.3d 56, 67
(1st Cir. 2000) (en banc) (\"treaties do not generally create rights
that are privately enforceable in the federal courts\"), [petition for
cert. filed]{.underline} (May 30, 2000) ; [Tel-Oren v. Libyan Arab
Republic]{.underline}, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J.,
concurring) (same); Restatement § 907 comment a (\"\[international
agreements, even those directly benefitting private persons, generally
do not create private rights or provide for a private cause of action in
domestic courts\").^[16]{.underline}^[^16] There must be an "express
provision within the treaty," [see]{.underline} [Saroop v.
Garcia]{.underline}, 109 F.3d 165, 167 (3d Cir. 1997), or some
indication in the text or history of the agreement demonstrating that
the signatories intended to provide a private right of action.
[See]{.underline} [Breard v. Greene]{.underline}, 523 U.S. 371, 377
(1998). [See]{.underline} [also]{.underline} [Columbia Marine Services,
Inc. v. Reffet Ltd.]{.underline}, 861 F.2d 18 (2d Cir. 1988) ("\[a\]n
action arises under a treaty only when the treaty expressly or by
implication provides for a private right of action"). In this case,
there is nothing in the Treaty or its history evincing such an
intention. [Compare]{.underline} Article 26 [with]{.underline} Article 1
of the Treaty of Friendship, Commerce and Navigation, Aug. 8, 1938,
United States‑Liberia, 54 Stat. 1739, T.S. No. 956 (specifying that the
nationals of the United States and Liberia \"shall enjoy freedom of
access to the courts of justice of the other on conforming to the local
laws\") (quoted in [Argentine Republic v. Amerada Hess
Shipping]{.underline}, 488 U.S. 428, 443 (1989)).^[17]{.underline}^[^17]

Second, there is no evidence in the historical record that the drafters
of the Treaty, or the Senate that gave its advice and consent to the
Treaty, intended that the broad waiver in Article 14(b) would
potentially become "un-waived" every time Japan entered into a bilateral
settlement agreement. The historical record overwhelming indicates that
Article 14(b) was intended to be a final settlement of all war related
claims. To that end, the United States has consistently maintained that
Article 14(b) settled all claims of U.S. and Allied nationals against
Japan and its nationals, Article 26 and other treaties notwithstanding.
[See]{.underline} discussion [infra]{.underline} at 32. Moreover, the
United States is aware of the various bilateral settlement agreements
Japan reached with the countries that were not signatories to the Treaty
of Peace. Since the 1950\'s, when many of these treaties were signed,
the United States has never concluded that any of these agreements
confer a \"greater advantage\" than the Peace Treaty and thus the United
States has never formally invoked its rights under Article 26. Absent
invocation by the United States, Article 26 thus provides no basis for
arguing that Article 14(b)\'s waiver of claims has somehow been altered
by the passage of time or the existence of other treaties.

Third, the claim that other treaties identified by plaintiffs are more
advantageous is dubious and in any event beyond the competence of this
Court to assess. The Treaty with Japan is a peace agreement ending a
major war, and it is thus wholly improper to compare other peace

settlements with Japan in terms of dollar-for-dollar
amounts.^[18]{.underline}^[^18] In light of the Treaty's immense
importance to U.S. interests in East Asia, particularly at the start of
the Cold War, assessing whether Japan granted any "greater advantages"
in its subsequent bilateral peace settlement agreements than those
gained by the United States in the Peace Treaty would require an
"appraisal of a great variety of relevant conditions, political, social,
and economic which can hardly be said to be within the appropriate range
of evidence receivable in a court of justice and as to which it would be
an extravagant extension of judicial authority to assert judicial notice
as a the basis of deciding a controversy." [Coleman v.
Miller]{.underline}, 307 U.S. 433, 453-54 (1939) (noting that any case
requiring that such an assessment be made presents a non-justiciable
political question). Similarly, if individual plaintiffs were allowed to
articulate their view of what constitutes a "greater advantage" for the
United States, consideration of such claims would create the
"potentiality of embarrassment from multifarious pronouncements" in the
field of foreign relations, where the need for this country to speak
with one voice is at its greatest. [Baker v. Carr]{.underline}, 369 U.S.
186, 217 (1962) (outlining the criteria for what constitutes a
non-justiciable political question).

This difficulty is compounded by the fact that Japan entered into many
of the agreements that plaintiffs claims are more favorable not only
with the consent of the United States, but with

our government's encouragement.^[19]{.underline}^[^19] The United States
strongly encouraged Japan to reach a favorable settlement agreement with
Burma, for example, in order to promote stability in Southeast Asia and
relieve our government of the heavy burden of maintaining Burma's
anti-Communist regime through economic
assistance.^[20]{.underline}^[^20] [See]{.underline} Memorandum from the
Deputy Assistant Secretary of State for Far Eastern Affairs (Sebold) to
the Secretary of State, Aug. 31, 1955, [reprinted in]{.underline}
Foreign Relations of the United States 1955-57, Volume XII, Southeast
Asia, at 20 (Exhibit 38); Memorandum of Discussion at the 214th Meeting
of the National Security Council Held on Sunday, September 12, 1954,
[reprinted in]{.underline} Foreign Relations of the United States,
1952-1954, Volume XII, East Asian-Pacific Area, at 907 (urging Japanese
to except Burmese offer on reparations) (Exhibit 39)
^[21]{.underline}^[^21] Although plaintiffs' assessment of the
advantages presented by the Japanese-Burmese agreement may not comport
with the high value and importance ascribed by the United States at that
time, it is the views of the United States that are determinative.
[See]{.underline} discussion [infra]{.underline} (noting that when
foreign policy is involved the national interest must be expressed
through the Executive Branch). Indeed, to invoke Article 26 after the
passage of more than 40 years based upon bilateral treaties that the
United States urged Japan to sign would be an act of extreme bad faith.

> **2. Article 16 does not provide a basis to avoid Article 14(b)'s
> broad waiver**

Article 16 also does not provide a basis to avoid Article 14(b)'s broad
waiver. To be sure, Article 16 required Japan to "transfer its assets
and those of its nationals . . . to the International Committee of the
Red Cross" to "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."^[22]{.underline}^[^22] This Clause was viewed as "an
expression of \[Japan's\] desire to indemnify those members of the armed
forces of the Allied Powers who suffered undue hardships while prisoners
of Japan." [See]{.underline} Treaty, Article 16.

By its express terms, however, Article 16 does not provide a right of
action against the Japanese Government or their nationals.
[See]{.underline} S. Exec. Rep. No. 82-2, at 13. Nor does it modify or
limit the waiver in Article 14. As the text of Article 16 indicates,
seized assets were distributed by the Red Cross to the Allied
governments directly for payment to their nationals. For domestic and
political reasons the United States never claimed any of the proceeds
from those assets. In reviewing the Treaty, the Senate Foreign Relations
Committee explained:

Japan also agrees that its property in neutral and ex-enemy countries
shall be transferred to the International Red Cross to be used for the
benefit of former prisoners of war and their families. The purpose of
this provision is to distribute these funds on an equitable basis so as
to make some compensation for the hardships which were suffered by
individual soldiers as a result of the Japanese violations of the Geneva
convention relating to prisoners of war. The United States has indicated
that because our citizens, who suffered as prisoners of war under the
Japanese, have already received some compensation out of Japanese
assets, equity dictates that comparable indemnification shall first be
made to the citizens of other countries, before further compensation is
made to Americans.

S. Exec. Rep. No. 82-2, at 12-13. [See]{.underline} [also]{.underline}
Letter from Howard A. Cook, Chief, Public Services Division, to Leila L.
Gosnell, Feb. 2, 1955 (Exhibit 42) (responding to question concerning
Japan's payments to the International Committee of the Red Cross on
behalf of former prisoners of war).

> **D. The United States Has Consistently Maintained That Article 14(b)
> Expressly Waives the Claims of U.S. and Allied Nationals Against Japan
> and its Nationals Without Exception**, **and its Views Are Entitled to
> Great Weight**

Consistent with the express language, history, and overall structure of
the Treaty, the United States has repeatedly maintained that the claims
of United States nationals against Japan and its nationals arising out
of World War II were fully and finally settled under Article 14(b) of
the Treaty of Peace with Japan.^[23]{.underline}^[^23] In the United
States' view, no provision in the Peace Treaty contains an exception
from Article 14(b)'s waiver for U.S. and Allied prisoners of war that
were forced into labor while imprisoned in Japan during World War II.
The Peace Treaty instead gave the United States and its Allies the right
to seize and dispose of substantial assets of Japan and its nationals
for transfer to the victims of the war. The United States used those
assets to provide compensation to American prisoners of war through the
War Claims Act. Thus, the Treaty and the War Claims Act supplant
plaintiffs' claims.

As the U.S. Supreme Court has instructed, the United States'
interpretation of the Peace Treaty is entitled to "great weight."
[See]{.underline} [Kolovrat v. Oregon]{.underline}, 366 U.S. 187, 194
(1961) ("While courts interpret treaties for themselves, the meaning
given them by the departments of government particularly charged with
their negotiation and enforcement is given great weight");

[Sumitomo Shoji America, Inc. v. Avagliano]{.underline}, 457 U.S. at
184-85 (same). Substantial deference is due in part because, "when
foreign affairs are involved, the national interest has to be expressed
through a single authoritative voice." [See]{.underline} [United States
v. Li]{.underline}, 206 F.3d at 67 (Selya, J., concurring). The sole
voice and "organ of the federal government in the field of international
relations" is the President of the United States. [United States v.
Curtiss-Wright Export Corp.]{.underline}, 299 U.S. 304, 320 (1936).
[Accord]{.underline} [Department of Navy v. Egan]{.underline}, 484 U.S.
518, 529 (1988) (the Supreme Court has \"recognized \'the generally
accepted view that foreign policy was the province and responsibility of
the Executive\'\") (quoting [Haig v. Agee]{.underline}, 453 U.S. 280,
293-94 (1981)); [Alfred Dunhill of London, Inc. v. Republic of
Cuba]{.underline}, 425 U.S. 682, 705-06 n.18 (1976) (\"the conduct of
\[foreign policy\] is committed primarily to the Executive Branch\");
[United States v. Louisiana]{.underline}, 363 U.S. 1, 35 (1960) (the
President is \"the constitutional representative of the United States in
dealing with foreign nations\").^[24]{.underline}^[^24] The President
commands all the political authority of the United States when acting in
this field. [See]{.underline} [Curtiss-Wright Export Corp.]{.underline},
299 U.S. at 320.

Deference to the United States' interpretation of its treaties also
stems for the judiciary's realization that, while courts "are well
equipped to resolve questions of domestic law," they "venture into
unfamiliar territory" when interpreting treaties negotiated with foreign
governments." [More v. Intelcom Support Services, Inc.]{.underline}, 960
F.2d 466, 472 (5th Cir. 1992) . The Supreme Court has recognized not
only "the limits of \[its\] own capacity to determine precisely when
foreign nations will be offended by particular acts . . . but
consistently acknowledged that the 'nuances' of the 'foreign policy of
the United States . . . are much more the province of the Executive
Branch and Congress than' of \[the\] Court." [Crosby v. National Foreign
Trade Council]{.underline}, 2000 WL 775550 \* 11 (June 19, 2000) (to be
reported at 120 S.Ct. 2288) (internal citations omitted). As a result,
"\[m\]atters which are vitally and intricately interwoven with
contemporaneous policies in regard to the conduct of foreign relations
\[are\] largely immune from judicial inquiry or interference.\"
[Harisiades v. Shaughnessy]{.underline}, 342 U.S. 580, 588-89 (1952).
[Accord]{.underline} [Regan v. Wald]{.underline}, 468 U.S. 222, 242
(1984).

Finally, the United States' interpretation of its treaty obligations is
often accorded great deference by courts because of important prudential
considerations, particularly if there is a \"potentiality of
embarrassment from multifarious pronouncements by various departments on
one question\" and if there is an \"unusual need for unquestioning
adherence to a political decision already made.\" [Baker v.
Carr]{.underline}, 396 U.S. at 217 (outlining the factors to be
considered in determining whether a case presents a non-justiciable
political question). In this case, the Peace Treaty, along with a
bilateral security agreement the United States entered into with Japan
on the same day the Peace Treaty was signed, forms the very basis of
U.S.-Japan relations, and has been the very cornerstone of our country's
foreign policy and regional security in East Asia and the Pacific for
the past 50 years. If individual plaintiffs were allowed to impose their
interpretation of the Treaty on a piece-meal basis through litigation,
and if the Japanese government considered the United States to be in
violation of the Japan Peace Treaty as a result, this could have a
potentially serious negative impact on U.S.-Japan
relations.^[25]{.underline}^[^25]

**II.** **The State Claims Are Preempted By The Treaty And The War
Claims Act**

Article VI of the U.S. Constitution provides that \"the Laws of the
United States . . . and all [Treaties]{.underline} made . . . shall be
the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the . . . Laws of any State to the Contrary
notwithstanding." U.S. Const. art VI, cl. 2 (emphasis added). As the
Supreme Court recently reiterated in [Crosby v. National Foreign Trade
Council]{.underline}, 2000 WL 75550 (June 19, 2000), a fundamental
principle of the Supremacy Clause is that the Federal government has the
power to preempt state law, "even without an express provision of
preemption." [Id.]{.underline} \* 6. State law must yield when "Congress
intends federal law to 'occupy the field.'" [Id.]{.underline} (quoting
[California v. ARC America Corp.]{.underline}, 490 U.S. 93, 100
(1989).^[26]{.underline}^[^26] "And even if Congress has not occupied
the field, state law is naturally preempted to the extent of any
conflict with a federal statute," or where it "stands as an obstacle to
the accomplishment and execution of the full purposes and objectives of
Congress." [Id.]{.underline} (citing [Hines v. Davidowitz]{.underline},
312 U.S. 52, 66-67 (1941). Applying this analysis to the claims pending
before this Court, it is clear that Section 354.6 of the California Code
of Civil Procedure must yield to the 1951 Peace Treaty with Japan and
the War Claims Act. [See]{.underline} [also]{.underline} United States
Statement of Interest, [Heimbuch]{.underline}, [supra]{.underline}, at
12-14.

As a preliminary matter, it is well-settled that \"state law must yield
when it is inconsistent with or impairs the policy or provisions of a
treaty or of an international compact or agreement.\" [United States v.
Pink]{.underline}, 315 U.S. 203, 230-31 (1942). Under our federal scheme
of government, the United States possesses authority over foreign
relations and, therefore, a unique interest in foreign relations not
shared by California or any other state. [Banco Nacional de Cuba v.
Sabbatino]{.underline}, 376 U.S. 398, 423-25 (1964); [Curtiss-Wright
Export Co]{.underline}., 299 U.S. at 316.If state laws and policies did
not yield before the exercise of the external powers of the United
States, then our foreign policy might be thwarted, and there would be
"great potential for disruption and embarrassment" of the United States
in the international arena. [Zschering v. Miller]{.underline}, 389 U.S.
429, 435 (1968). Accordingly, when a state legislates in an area that
involves international relations, the Court should be more ready to
conclude that the state law is preempted, contrary to the usual
presumption against preemption. [See]{.underline} [Crosby v. National
Foreign Trade Council]{.underline}, [supra]{.underline}, at \* 9, 11.

The comprehensive scope of the Peace Treaty\'s waiver of claims, as well
as the remedial scheme created by the War Claims Act, demonstrates that
the federal government has occupied the field with respect to prisoner
of war claims against the Japanese and \"left no room for the States to
supplement it.\" [Rice v. Santa Fe Elevator Corp.]{.underline}, 331 U.S.
218, 229-30 (1947); [United States v. Locke]{.underline}, -- U.S. --,
120 S. Ct. 1135, 1149 (2000); [Worth v. Universal Pictures,
Inc.]{.underline}, 5 F. Supp. 2d 816, 820 (C.D. Cal. 1997). Indeed,
through its extinguishment of rights under the Peace Treaty, its
enactment of the comprehensive reparations scheme set forth in the War
Claims Act, and its rejection of the courts as forums for such claims,
\"Congress clearly evidenced its intent to completely preempt claims
brought by American prisoners of war against Japan and its
nationals.\"^[27]{.underline}^[^27] [Tenney v. Mitsui & Co.,
Ltd.]{.underline}, Case No. CV-99-11545, slip op. at 5 (C.D. Cal. Feb.
24, 2000) (J. Marshall) (Exhibit 44). Where, as here, \"the federal
government, in the exercise of its superior authority in \[the field of
foreign relations\], has enacted a complete scheme of regulation . . .
states cannot, inconsistently with the purpose of Congress, conflict or
interfere with, curtail or complement, the federal law.\"
[Hines]{.underline}, 312 U.S. at 66 (Pennsylvania alien registration law
preempted by subsequently enacted federal law, even though federal act
did not contain express preemption provision); [see]{.underline}
[also]{.underline} [Pacific Gas & Elec. Co. v. State Energy Resources
Conservation & Dev. Comm\'n]{.underline}, 461 U.S. 190, 204 (1983)
(state law preempted where Congress enacted \"scheme of federal
regulation so pervasive as to make reasonable the inference that
Congress left no room for the states to supplement it\"); [Beveridge v.
Lewis]{.underline}, 939 F.2d 859, 862 (9th Cir. 1991) (\"Congress may
implicitly occupy a field through pervasive regulations that leave no
room to supplement\").

Moreover, even if there were not such clear intent to occupy the field,
the application of state law sought by plaintiff would nonetheless be
preempted because it directly conflicts with clear federal law,
[see]{.underline} [Rice]{.underline}, 331 U.S. at 229-30, and the
President's authority "to speak for the United States among the world's
nations\[.\]" [See]{.underline} [Crosby]{.underline},
[supra]{.underline}, at \* 9. Allowing state law causes of action based
on World War II claims against Japanese nationals [would]{.underline}
impede \"the accomplishment and execution of the full purposes and
objectives\" of the federal government in negotiating and ratifying the
Treaty. [See]{.underline} [Hines]{.underline}, 312 U.S. at 67. As
discussed above, the United States, intended to, and did, resolve all
war-related claims arising out of the conduct of Japan and its nationals
during World War II in the Treaty. The resolution expressly extended to
claims by former prisoners of war. [See]{.underline} Treaty, Art. 16.
The state law claims plaintiffs attempt to assert are precisely those
claims that the federal government settled when it ratified the Treaty
and accepted the benefits of the Treaty\'s provisions. Because allowing
these state law claims would create a direct conflict with Treaty, they
are preempted.

**CONCLUSION**

The purpose of the 1951 Treaty of Peace with Japan was to restore
Japan\'s sovereignty, engage Japan as a functioning democratic market
economy in the face of communist threat, and settle all claims against
the Government of Japan and Japanese nationals, while also settling any
potential Japanese claims against the Allies and their nationals. None
of these purposes could have been achieved had the Treaty left open the
possibility of future war reparations or other war-related claims such
as those advanced by the plaintiffs in the cases pending before the
Court. For this reason, except as otherwise provided for in the Treaty,
the Treaty specifically was drafted to waive all claims of the Allied
Powers and their nationals, against both Japan and its nationals, that
arose out of the conduct of the Second World War. At the same time, the
Treaty ensured that Japan and its nationals forfeited an unprecedented
amount of assets to compensate the victims of World War II. To that end,
the Treaty\'s waiver of reparations and other claims which the Allied
Powers and their nationals may have had against Japan and its nationals,
along with the remedial scheme set up both by the Treaty and the War
Claim Act, provide a comprehensive compensation program which preempts
plaintiffs\' state law claims in this action.

Accordingly, the United States respectfully submits that the claims
raised by the plaintiffs should be dismissed.

Respectfully submitted,

Of Counsel: DAVID W. OGDEN

Assistant Attorney General

JAMES G. HERGEN

LARA A. BALLARD

United States Department of State ROBERT S. MUELLER, III

Office of the Legal Adviser United States Attorney

Washington, D.C. 20037

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DAVID J. ANDERSON

VINCENT M. GARVEY

MARTHA E. RUBIO

U.S. Department of Justice

Civil Division, Federal Programs Branch

P.O Box 883

901 E Street, N.W., Room 916

Washington, D.C. 20044

\(202\) 616-0680

Dated: August \_\_\_, 2000 Attorneys for the United States

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

[^1]: ^[?]{.underline}^/ At the request of the United States Senate
    Judiciary Committee, the Department of Justice and the Department of
    State re-examined the arguments the Government raised in the
    Statement of Interest filed in [Heimbuch v. Ishihara Sangyo Kaisha,
    Ltd.]{.underline}, Civil Action No. 00-00604 (WHA), and met with
    counsel for the plaintiffs. This Statement of Interest represents
    the results of that reconsideration and is submitted pursuant to 28
    U.S.C. § 517.

[^2]: ^[?]{.underline}^/ [See]{.underline}, [e.g.]{.underline}, \"Items
    for Discussion with the JCS,\" Memorandum by the Acting Director of
    the Office of Northeast Asian Affairs (Johnson), January 6, 1951,
    [reprinted in]{.underline} Foreign Relations of the United States
    1951, Vol. VI, Asia and the Pacific, at 785 (1977) (recommending
    that the U.S. \"\[d\]evelop Japan\'s industrial capacity so that it
    may make the maximum contribution to Japan\'s security, the needs of
    our armed forces, and our military assistance programs elsewhere\")
    (Exhibit 5); Memorandum of Conversation by the Deputy to the
    Consultant (Allison), January 18, 1951, [reprinted in]{.underline}
    Foreign Relations of the United States 1951, Vol. VI, Asia and the
    Pacific, at 804 (1977) (\"if Japan is to be on the side of the free
    world, it will be necessary to assure that its industry can keep
    running and that it will receive sufficient quantities of the
    necessary raw materials, particularly cooking coal and iron ore\")
    (Exhibit 6).

[^3]: ^[?]{.underline}^/ Dulles "largely wrote and had to do with the
    operation of the reparations provisions of the Treaty of
    Versailles," and thus was intimately familiar with the problems that
    resulted. [See]{.underline} Japanese Peace Treaty Negotiations, at
    267 (statement of Dulles).

[^4]: ^[?]{.underline}^/ "\[E\]ach 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,

    \(c\) entities owned or controlled by Japan or Japanese nationals."

    Treaty, Art. 14(a)(2).

[^5]: ^[?]{.underline}^/ \"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]{.underline} . . . for the
    benefit of former prisoners and their families.\" Treaty, Art. 16
    (emphasis supplied).

[^6]: ^[?]{.underline}^/ A total of 179,725 awards were made under the
    "dollar a day" program to members of the armed services who were
    held as prisoners of war during World War II and given inadequate
    food rations, and \$ 49,935,899 was distributed. [Id.]{.underline}
    Under the "\$1.50 a day" program there were a total of 178,900
    awards made, totaling \$ 73,492,926. [Id.]{.underline}

[^7]: ^[?]{.underline}^/ It is well settled that the federal
    government\'s \"power to espouse and settle claims of our nationals
    against foreign governments is of ancient origin and constitutes a
    well-established aspect of international law.\" [Belk v. United
    States]{.underline}, 858 F.2d 706, 708 (Fed. Cir. 1988);
    [see]{.underline} [also]{.underline} [Dames & Moore v.
    Regan]{.underline}, 453 U.S. 654, 679-80 (1981) (\"the United States
    has repeatedly exercised its sovereign authority to settle the
    claims of its nationals against foreign countries\"); [Asociasion de
    Reclamantes v. United Mexican States]{.underline}, 735 F.2d 1517,
    1523 (D.C. Cir. 1984) ("Once it has espoused a claim, a sovereign
    has wide-ranging discretion in disposing of it. It may compromise
    it, seek to enforce it, or waive it entirely"), [cert.
    denied]{.underline}, 470 U. S. 1051 (1985); [Ozanic v. United
    States]{.underline}, 188 F.2d 228, 231 (2d Cir. 1951) (\"the
    necessary power to make such compromises has existed from the
    earliest times and been exercised by the foreign offices of all
    civilized nations\"). The Court's reasoning in [Dames & Moore v.
    Regan]{.underline}, [supra]{.underline}, strongly supports similar
    authority to settle claims of private citizens (even against private
    citizens of another nation) when there is a compelling public policy
    justification for doing so. [See]{.underline} [also]{.underline}
    [Ware v. Hylton]{.underline}, 3 U.S. 199, 235-39 (1796) (holding
    that the United States' treaty with Great Britain ending the
    Revolutionary War invalidated a Virginia statute that had provided
    for the discharge of private debts owed to private British
    subjects); [United States v. The Schooner Peggy]{.underline}, 5 U.S.
    103, 110 (1801) ("if the nation has given up vested rights of its
    citizens, it is not for the court, but for the government, to
    consider whether it be a cause for proper compensation").

[^8]: ^[?]{.underline}^/ Consistent with the Vienna Convention on the
    Law of Treaties, the Supreme Court has indicated that courts should
    begin their analysis of the appropriate interpretation of a treaty
    with the text. [See]{.underline} [Chan v. Korean Air Lines,
    Ltd.]{.underline}, 490 U.S. 122, 134 (1989); Vienna Convention on
    the Law of Treaties (1969), Article 31, May 23, 1969, 1155 U.N.T.S.
    331, 8 I.L.M. 679 ("A treaty shall be interpreted in good faith in
    accordance with the ordinary meaning to be given the terms of the
    treaty in their context and in the light of its object and
    purpose"). Although the United States has not ratified the
    Convention, it is generally "recognized as the authoritative guide
    to current law and practice." S. Exec. Doc. L., 92d Cong. 1st Sess.
    1 (1971).

[^9]: ^[?]{.underline}^/ The phrase "in the course of the prosecution of
    the war" is not a specific term of art under the laws of war. Nor is
    the phrase defined by the Geneva Convention of 1929 concerning the
    treatment of prisoners of war, as plaintiffs seem to suggest in
    various filings. [See]{.underline} Geneva Convention of July 27,
    1929, Relative to the Treatment of Prisoners of War (Exhibit 23).
    Everything known about the drafting of the Peace Treaty and the
    phrase "in the course of the prosecution of the war" indicates that
    it was intended to have a very broad scope. The phrase first
    appeared in a proposed revision to Article 19(a) of the U.S.-U.K.
    draft of the Treaty. [See]{.underline} Japanese Peace Treaty:
    Working Draft and Commentary Prepared in the Department of State,
    Washington, June 1, 1951, [reprinted in]{.underline} Foreign
    Relations of the United States 1951, Vol. VI, Asia and the Pacific,
    at 1093-94. Article 19(a) is a reciprocal provision to Article 14(b)
    that waives all claims by Japan and its nationals against the U.S.
    and its nationals. The revision was proposed by the United Kingdom
    along with the alternative phrase "or in the exercise or purported
    exercise of belligerent rights." [Id]{.underline}. The United States
    preferred the language in "the course of the prosecution of the war"
    because it was broader and more comprehensive in scope.
    [Id]{.underline}. The phrase was later inserted into Article 14(b).

[^10]: ^[?]{.underline}^/ Article 28 of the Geneva Convention of 1929
    provides that \"\[t\]he detaining Power shall assume entire
    responsibility for the maintenance, care, treatment and payment of
    wages of prisoners of war working for the account of private
    persons.\" Article 31 of the Convention also provides that
    "\[l\]abor furnished by prisoners of war shall have no direct
    relation with war operations" and prohibits the "use \[of\]
    prisoners for manufacturing and transporting arms or munitions of
    any kind, or for transporting material intended for combatant
    units." The War Claims Act specifically compensated American
    prisoners of war for Japanese violations of these and other
    provisions of the Geneva Convention. [See]{.underline} discussion
    [supra]{.underline} at 9, 12-13.

[^11]: ^[?]{.underline}^/ Generally, drafting history should be
    consulted only to "elucidate a text that is ambiguous."
    [Chan]{.underline}, 490 U.S. at 134. [See]{.underline}
    [also]{.underline} Vienna Convention on the Law of Treaties, Article
    32 ("Recourse may be had to supplementary means of interpretation,
    including the prepatory work of the treaty and the circumstances of
    its conclusion, in order to confirm the meaning resulting from the
    application of Article 31 or to determine the meaning when the
    interpretation according to Article 31 (a) leaves the meaning
    ambiguous or obscure; or (b) leads to a result which is manifestly
    absurd or unreasonable").

[^12]: ^[?]{.underline}^/ The United States Government circulated a
    provisional draft of the treaty on March 23, 1951. During this
    period, the United Kingdom was also circulating its own draft. The
    two countries eventually produced a joint U.S.-U.K. draft on May 3,
    1951.

[^13]: ^[?]{.underline}^/ The clause "including claims arising out of
    the treatment accorded by Japan to prisoners of war and civilian
    internees" was apparently omitted in connection with the adoption of
    Article 16 of the Treaty. Specifically, in response to the May
    draft, the Australian government stated that it "has already made
    known its views to the United States Government as to Japan\'s
    liability for reparations, sufficient at least to ensure payment of
    compensation to former prisoners of war who suffered ill treatment
    over a long period of time at Japanese hands . . . \[T\]he
    Australian Government is of the view that there should be an
    equitable distribution among the Allied powers of the stocks of
    monetary gold and bullion which were in the possession of the
    Japanese Government at the termination of hostilities, and of
    Japanese assets in neutral and ex-enemy countries.\"
    [Id.]{.underline} at 1084. The United Kingdom and Canada shared
    Australia's view; however, New Zealand and the United States were
    adamantly opposed. [Id.]{.underline} 1084-1086. Following
    consultations in London on June 12, 1951, the "United Kingdom agreed
    not to press its proposal for the distribution of Japanese owned
    gold as reparations, while the United States agreed that Japanese
    assets in neutral and ex-enemy countries should be turned over to
    the International Committee of the Red Cross to distribute for the
    benefit of members of the armed forces who had suffered undue
    hardships while prisoners of war in Japan." Robert A. Fearey,
    "Summary of Negotiations Leading Up to the Conclusion of the Treaty
    of Peace With Japan," Sept. 18, 1951, [reprinted in]{.underline},
    Foreign Relations of the United States 1951, Volume VI, Asia and the
    Pacific, at 1118 (Exhibit 24). Thus, Article 16 provides a special
    source of funds to make individual payments to prisoners of war, but
    it in no way suggests any limitation on Article 14(b)\'s broad
    waiver or that prisoners of war were to retain the right to pursue
    additional compensation through actions against the Japanese
    government or its nationals.

    A subsequent diplomatic exchange between the Dutch and Japanese
    Governments confirms that the parties intended claims of "prisoners
    of war and civilian internees" to be covered by the waiver, despite
    the omission of this clause from the final version of Article 14(b).
    [See]{.underline} discussion [infra]{.underline} (noting Dutch
    concerns that the claims of Dutch civilian internees would be
    extinguished by the Treaty).

[^14]: ^[?]{.underline}^/ Dulles intended these statements to make clear
    "that while the Japanese would in no sense be committed to recognize
    the claims of individuals, nothing in the Treaty would prevent them
    from making such adjustments as they felt it desirable to make as a
    matter of enlightened expediency." Memorandum of Conversation, by
    the Deputy Director of the Office of British Commonwealth and
    Northern European Affairs (Satterthwaite), San Francisco, September
    3, 1951, [reprinted in]{.underline} Foreign Relations of the United
    States 1951, Volume VI, Asia and the Pacific, at 1325. Dutch Foreign
    Minister Stikker agreed with this strategy, telling Dulles that the
    purpose of the Japanese "statement was not to obligate the Japanese
    actually to pay out any money to the claimants." Memorandum of
    Conversation, by the Deputy Director of the Office of British
    Commonwealth and Northern European Affairs (Satterthwaite), San
    Francisco, September 4, 1951, [reprinted in]{.underline} Foreign
    Relations of the United States 1951, Volume VI, Asia and the
    Pacific, at 1332.

[^15]: ^[?]{.underline}^/ Statements made by U.S. officials shortly
    after the Treaty was ratified indicate that the United States
    intended Article 26 to serve as a means of deterring Japan from
    reaching more favorable peace settlements with the Communist bloc,
    primarily on territorial issues. [See]{.underline}
    [generally]{.underline} Japanese Treaty Negotiations, March 9, 1951,
    [reprinted in]{.underline} Executive Sessions of the Senate Foreign
    Relations Committee (Historical Series) Vol. III, Part I, 82nd
    Cong., 1st Session, 1951, at 261. When Japan came under heavy
    pressure from the Soviet Union to reach a peace settlement that
    granted the Soviets control over the Kurile Islands in 1956, the
    United States publicly warned Japan that if it "recognized the
    Soviet claims of sovereignty over the Kuriles, . . . it might open
    the way for United States demands for sovereignty over other
    islands, particularly Okinawa" through the invocation of Article 26.
    Secretary Dulles' News Conference of August 28, 1956, Department of
    State Press Release No. 450 (Exhibit 32). In a press conference held
    on August 28, 1956, Dulles, who was now the Secretary of State under
    President Eisenhower, noted, "That clause was put in the treaty -- I
    wrote the treaty very largely, as you may remember -- for the very
    purpose of trying to prevent the Soviet Union from getting more
    favorable treatment than the United States got." [Id.]{.underline}
    Dulles later told Japanese officials privately that he had inserted
    Article 26 "for the protection of Japan, so that if other countries
    should make demands upon Japan, Japan would have a basis of
    resisting by pointing to the San Francisco treaty."
    [See]{.underline} Memorandum of a Conversation, Secretary Dulles'
    Residence, Washington, September 7, 1956, 9 p.m.,
    [reprinted]{.underline} in Foreign Relations of the United States
    1955-1957, Volume XXIII, Part 1 Japan , at 228 (Exhibit 33).

[^16]: ^[?]{.underline}^/ As the Supreme Court said well over 100 years
    ago in the [Head Money Cases]{.underline}: "A treaty is primarily a
    compact between independent nations. It depends for the enforcement
    of its provisions on the interest and the honor of the governments
    which are parties to it." 112 U.S. 580, 598 (1884).
    [Accord]{.underline} [Matta-Ballesteros v. Henman]{.underline}, 896
    F.2d 255, 259 (7th Cir.) ("\[t\]reaties are designed to protect the
    sovereign interests of nations, and it is up to the offended nations
    to determine whether a violation of sovereign interests occurred and
    requires redress"), [cert. denied]{.underline}, 498 U.S. 878 (1990);
    [Canadian Transport Co. v. United States]{.underline}, 663 F.2d
    1081, 1092 (D.C. Cir. 1980) ("\[i\]n the absence of specific
    language in the treaty waiving the sovereign immunity of the United
    States, the treaty must be interpreted in accord with the rule that
    treaty violations are normally to be redressed outside the
    courtroom").

[^17]: ^[?]{.underline}^/ Recognition of a private remedy under the
    Peace Treaty would also "create insurmountable problems for the
    legal system that attempted it; would potentially interfere with
    foreign relations; and would pose serious problems of fairness in
    enforcement." [Handel v. Artukovic]{.underline}, 601 F. Supp. 1421,
    1425 (C.D. Cal. 1985). [See]{.underline} [also]{.underline}
    discussion [infra]{.underline} (noting that plaintiffs arguments may
    raise a non-justiciable political question).

[^18]: ^[?]{.underline}^/ By its terms, the amount each Allied nation
    received under the Peace Treaty varied from country to country, as
    the signatories received settlements in an amount equal to the total
    worth of Japanese-owned assets that were located in their respective
    territories. [See]{.underline} Article 14(a)(2), Treaty.

[^19]: ^[?]{.underline}^/ [See]{.underline}, [e.g.]{.underline},
    Memorandum by the Acting Secretary of State and the Secretary of
    Defense (Lovett) to the President, Feb. 15, 1952, [reprinted
    in]{.underline} Foreign Relations of the United States, 1952-1954,
    Volume XIV, Japan, at 1161 ("\[t\]he United States can attain its
    long-range security objectives in the Far East to the fullest extent
    only if Japan, in its own self-interest, fully recognizes its stake
    in the free world, develops close political, military and economic
    cooperation with the United States and other free nations,
    particularly in Asia") (Exhibit 34); Telegram from the Secretary of
    State (Acheson) to the Office of the United States Political Adviser
    to SCAP (Sebald), April 23, 1952, [reprinted in]{.underline} Foreign
    Relations of the United States, 1952-1954, Volume XIV, Japan, at
    1247 (directing SCAP to communicate to the Japanese Foreign Ministry
    the "desirability" of concluding negotiations with China prior to
    the effective date of the San Francisco Peace Treaty because of
    concern that the Chinese and the Soviets "may well endeavor to
    embarrass" the United States and Japan "by attempts to extend
    occupation organs beyond that date") (Exhibit 35); Memorandum of
    Conversation, by the Secretary of State, April 29, 1952, [reprinted
    in]{.underline} Foreign Relations of the United States, Volume XIV,
    Japan, at 1260 (emphasizing "the great importance which the United
    States attached to the establishment of firm and friendly relations
    between Korea and Japan, and the profound influence which the
    character of these relations would exercise over the stability of
    the Far East") (Exhibit 36); Memorandum of Conversation, Department
    of State, Washington, May 17, 1956, [reprinted in]{.underline},
    Foreign Relations of the United States, 1955-1957, Vol. XXII,
    Southeast Asia, at 271 (noting that the United States has
    "encouraged and will continue to encourage the Japanese to restore
    normal relations with the Indonesians by a proper settlement of the
    reparations issue") (Exhibit 37).

[^20]: ^[?]{.underline}^/ Importantly, Article 14 of the Treaty draws a
    clear distinction between countries that were formerly occupied by
    Japan, such as Burma, and those that were not. [See]{.underline}
    Article 14(a)(1), Treaty (obligating Japan to enter into
    negotiations with Allied Powers whose territories Japan occupied
    during the war, for the ultimate purpose of contributing Japan's
    services to assist with the rebuilding of those countries). Thus,
    the Treaty itself dictated that certain nations -- those occupied by
    Japan -- would be treated differently, and possibly more
    advantageously, than the signatories.

[^21]: ^[?]{.underline}^/ The United States is aware that the British at
    one time considered invoking Article 26 after the Japanese concluded
    a treaty with Burma. [See]{.underline} Memorandum to British Foreign
    Office, Sept. 19, 1955 (Exhibit 40). Although the British ultimately
    decided not to pursue the matter, their decision is thus consistent
    with the United States' understanding that the Article 26 is to be
    invoked only by signatory nations and not individuals, that whatever
    "rights" the Clause confers are not "automatic" as plaintiffs
    erroneously contend, and that the determination of what constitutes
    "greater advantages" is ultimately a combination of diplomatic
    policy and political considerations.

[^22]: ^[?]{.underline}^/ This provision was inserted at the request of
    Australian, British, and Canadian officials who had expressed a
    desire to obtain "something . . . if possible" for those who had
    "suffered greatly" as prisoners of the Japanese. [See]{.underline}
    Memorandum by Mr. Robert A. Fearey of the Office of Northeast Asian
    Affairs, Canberra, February 17, 1951, [reprinted in]{.underline}
    Foreign Relations of the United States 1951, Volume VI, Asia and the
    Pacific, at 886 (1977) (Exhibit 41); [see]{.underline}
    [also]{.underline} discussion, [supra]{.underline} note 13.

[^23]: ^[?]{.underline}^/ [See]{.underline} Letter from Barbara Larkin,
    Assistant Secretary, Legislative Affairs, to the Honorable Orrin
    Hatch, United States Senator (Jan. 18, 2000); Letter from Robert C.
    Reis, Director, Office for Japanese Affairs, to Clarine I. Johnson
    (April 4, 1996); Letter from Steven R. Ratner, Attorney-Advisor for
    East Asian and Pacific Affairs, to Frank R. Mace (April 25, 1988);
    Letter from W. Tapley Bennet, Jr., Assistant Secretary, Legislative
    Affairs, to the Honorable Peter W. Rodino, U.S. Congressman (Aug. 3,
    1984) (collectively Exhibit 43). [See]{.underline}
    [also]{.underline} Statement of Interest of United States on
    Plaintiffs' Motion to Remand, at 4 (filed in [Heimbuch v. Ishihara
    Sangyo Kaisha, Ltd.]{.underline}, Civil Action No. 00-0064 WHA).

[^24]: ^[?]{.underline}^/ [Cf.]{.underline} L. Henkin, [Foreign Affairs
    and the Constitution]{.underline} 167 (1972) (noting that the
    President is responsible for enforcing and executing international
    agreements, a responsibility that necessarily "involves also the
    obligation and authority to interpret what the treaty requires").

[^25]: ^[?]{.underline}^/ While the United States believes that the text
    of Article 14(b) is clear, to the extent the Court finds any
    ambiguity, the Court should defer to the Government's interpretation
    for the reasons explained. [See]{.underline} [also]{.underline}
    Curtis A. Bradley, "Chevron Deference and Foreign Affairs," 86 Va.
    L. Rev. 649 (2000).

[^26]: ^[?]{.underline}^/ An international treaty to which the United
    States is a party is the \"supreme law of the land\" and may preempt
    state law claims as fully as an act of Congress. U.S. Const. Art.
    VI, ¶2; [see]{.underline} [also]{.underline} [Missouri v.
    Holland]{.underline}, 252 U.S. 416, 434-35 (1920); [In re Aircrash
    in Bali, Indonesia]{.underline}, 684 F.2d 1301, 1307-08 (9^th^ Cir.
    1982); [Air France v. Saks]{.underline}, 470 U.S. 392, 406 (1985).

[^27]: ^[?]{.underline}^/ Since Congress opted for a federal
    administrative remedy, it is indisputable that allowing state courts
    to hear such claims would be antithetical to congressional intent.
    [Nebenzal v. Re]{.underline}, 407 F.2d 717, 719 (D.C. Cir. 1968)
    (\"the legislative history of the \[War Claims\] Act . . . evidences
    Congress\' intention to leave entirely to the Commission the
    disposition of such claims\"), [cert. denied]{.underline}, 395 U.S.
    920 (1969).