"As a result, for Japan, the peace treaty represented a second 'datsu-A ron' or Japan 'leaving Asia' in the wake of which was left a legacy of unresolved disputes related to territory and reparations." John Price, A Just Peace? The 1951 San Francisco Peace Treaty in Historical Perspective, 2001
Over 50 countries' delegates gathered in San Francisco on September 4, 1951 to discuss the making of a treaty with Japan to resolve war-related issues. Signed four days later on September 8, 1951, by 48 countries, the Treaty came to be known as the San Francisco Peace Treaty (full text). The making of the Treaty was controversial from the very start. It remains so on the eve of its 50th anniversary. (See Recovering Japan's Wartime Past - and Ours By Steven C. Clemons)
On the eve of the Treaty's anniversary, Japan is ready to look forward to a new era, claiming it has fulfilled its obligations according to the San Francisco Peace Treaty and other bilateral treaties and international agreements and therefore has resolved all war-related issues. Japan's victims, however, maintain it has not addressed among others, the issue of the rights to claim war damages and compensations
Three types of rights are commonly recognized under international law against an aggressor state. These are as follows:1) the right of the state itself to claim war reparations; 2) the right of the state to claim reparations by invoking diplomatic protection of its nationals; and 3) the right of an individual, apart from the state, to claim compensation for himself/herself. (See reference 001.)
It is generally assumed that the first two types of rights were waived under the San Francisco Peace Treaty
Waiver of these rights are found in Article 14 (b), which states:
Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war and claims of the Allied Powers for direct military costs of occupation.
Thus signatories of the Treaty waived all reparations claims for war damages from Japan, a position the United States government strongly advocated in 1951 despite intense resistance especially from the victimized Asian countries.
However, to placate opposition, Article 14 (a) leaves open the possibility of seeking reparations to a post-treaty period:
It is recognized that Japan should pay reparations. Nevertheless it is also recognized that the resources of Japan are not presently sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and suffering and at the present time meet its other obligations.
As this article is silent on future claims when Japan's economy is strong enough to sustain reparation payments, some noted that the signatories have not waived their rights to claim on a permanent basis.
Meanwhile both U.S. and Japan maintain Article 14 (b) provides an impenetrable shield against claims of any sort. As recently as September of 2000, American and Allied POWs and civilian internees have had their slave labor lawsuits against Japanese corporations dismissed by U.S. federal judge Vaughn Walker. Judge Walker relied heavily on an amicus curiae brief filed by the State Department in which the U.S. government sided with Japan against its own veterans to assert that Article 14 (b) of the San Francisco Peace Treaty barred individual claims stemming from signatory states.
That the position taken by the U.S. government in the Japanese litigation differed significantly from the position it took in the Holocaust has not gone unnoticed. Concerned with the disparity, the U.S. Senate Judiciary Committee under Orrin Hatch held a hearing on the matter in June of 2000. Harold G. Maier testified in his role as expert witness: "It is my opinion that none of the terms of that Treaty (San Francisco Peace Treaty) precludes these legal actions by the American citizens who were former prisoners of war." At the Committee's urging, the State Department representative agreed to re-evaluate the government's position. Yet, the State Department filed two subsequent Statements of Interest which maintain similar positions, presumably after re-evaluation.
In the Senate Hearing, references were made to Article 26 of Chapter VII which states:
Should Japan make a peace settlement or war claims settlement with any State granting that State greater advantages than those provided by the present Treaty, those same advantages shall be extended to the parties to the present Treaty.
Japan not only made subsequent agreements and treaties granting other states greater advantages than those provided by the San Francisco Peace Treaty (see UK1, UK2 and Burma) but it also entered into bilateral treaties and agreements with such countries as Sweden, Spain, Denmark, Netherlands, Switzerland, and Greece to pay compensation to the nationals of those countries.
We now turn our attention to the specific case of Japan's bilateral agreement with China. Given the terms of this agreement and with the operation of Article 26, it is questionable whether signatories of the Treaty actually waived the second type of right, namely, the diplomatic protection right of its nationals. Article 5 in the Sino-Japanese Joint Communique of September 29, 1972, the only bilateral agreement to address war claims between China and Japan states:
The government of the People's Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demands for war reparations from Japan
Yet China has not explicitly renounced its demands on behalf of its nationals and can be construed to have retained its right of diplomatic protection. By extension, through Article 26 of the San Francisco Peace Treaty, the U.S. and other signatories also retain their diplomatic protection right. Thus even if Article 14 (b) extinguished the state right of diplomatic protection, the bar is lifted by Article 26 when Japan entered into these types of bilateral treaties and agreements. However, diplomatic protection being a state right, only the government can assert this right according to Judge Vaughn Walker (see reference 002).
To ensure the U.S. government invoke Article 26 of the San Francisco Peace Treaty (see reference 003 ), Dana Rohrabacher, a California Congressman, introduced HR 1198, Justice for US POWs Act of 2001. The bill also interprets Article 14 (b) as not constituting "a waiver by the United States of claims by nationals of the United States" (see reference 004). If enacted, it would preserve the POWs' right to file the slave labor lawsuits against Japanese corporations in federal courts. H.R. 1198 has to date over 120 co-sponsors.
Legal opinions vary as to whether Article 14 (b) extinguished the third type of rights, i.e., the right of an individual to claim compensation. Some argue that as the signatories of the Treaty are states, they cannot extinguish rights that do not belong to them. (See reference 005 and reference 006 .) Another interesting angle is provided by Michael Bazyler who noted that Article 14 (b) speaks only of waivers of "reparations" (see reference 007 ). Since reparations are legally defined as payments made by one state to another, the article should not be construed as barring individual claims for compensation. Further even if one concedes that the Article 14 (b) bars claims by nationals of the signatories, it does so under "actions taken...in the course of the prosecution of the war." Japanese corporations are private, profit-making ventures as ruled by the U.S. Supreme Court in 1952 and do not fall under the umbrella of actions taken to prosecute the war (see reference 008 and reference 009).
None of the above arguments touches on the central point that treaties are not meant to protect individual rights. This can be seen in the case of a state foregoing its right to diplomatic protection or abandoning its claims for political reasons. In such a case, the individuals' rights are left unprotected unless they can make claims directly for themselves outside of treaty provisions. (See reference 010.)
Fortunately, the individual right to claim compensation is recognized under international law dating back to Article 3 of the Hague Convention of 1907. The tradition continues under the Geneva Conventions where the individual is guaranteed the right to redress especially in the case of crimes against humanity (see Geneva Convention IV Art. 147).
In addition, the 1949 Geneva Conventions specifically prohibits a party from allowing itself or another party to evade liability for grave breaches of international humanitarian law (See Geneva Convention IV Art. 148 and Geneva Convention III Art. 131). Therefore the San Francisco Peace Treaty, signed after the Geneva Conventions came into force, can neither waive nor does it address rights to claim stemming from Japan's violation of humanitarian law.
In filing those Statements of Interest which in effect allows Japan to evade responsibility for violating international humanitarian law, the U.S. government, which ratified the Geneva Conventions before the Treaty, may have violated these Conventions.
To date, Japan has used the Treaty to shield itself from any claims for compensation. Therefore, on the eve of the commemoration of its 50th anniversary, we need to ask not only whether the San Francisco Peace Treaty is a just Treaty, but also whether it has stood in the way of peace and genuine reconciliation between the perpetrator and the victim nations and individuals.
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All text and images copyright 2001 Global Alliance for Preserving the History of WWII in Asia. Last edit: 20010724