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For a New Trial on the Atomic Bombings: Possibilities for and Difficulties of Judicial Remedies in U.S. Courts

Toshinori YAMADA
I. Introduction
The Statute of the Inter-American Commission on Human Rights stipulates that an individual petitioner must exhaust all means of remedying the situation domestically before the petition is presented to the Commission <YT2>.1
What follows is an examination on whether the victims of the atomic bombings of Hiroshima and Nagasaki could hold the government of the United States liable for the bombings and the subsequent actions it took in relation to the bombings during its military occupation of Japan and whether the victims could seek judicial remedies for their suffering in U.S. courts.
II. Legal Regimes in the U.S. concerning Compensation for War Victims and Governmental Liability
In the Unites States, there are laws that provide for compensation to war victims,2 but they are only for those who participated in hostilities on the side of the United States <YT4> and not for citizens of enemy countries who incurred damages by acts (especially that violate international law) of the United States government or of U.S. military forces in the conflict.
Let us take a look at the U.S. legal system regarding governmental liability. What we should note first is the doctrine of sovereign immunity <s5>. The doctrine is referred to in the ruling of the Shimoda case <YT6> as a basis for why A-Bomb victims cannot file a suit against the United States in U.S. courts.3
The doctrine of sovereign immunity originates in the common law doctrine of the king can do no wrong <s7>, and, accordingly, the U.S. federal government is immune from civil prosecution in U.S. courts <s8>. Article 3(2) of the U.S. Constitution stipulates that the judicial power of the United States extends to controversies to which the United States is a party, but the provision does not specify whether the United States shall be a party as the defendant or shall be a defendant only when it agrees to be so.4 In 1846, the Supreme Court ruling in U.S. v. McLemore supported the doctrine of sovereign immunity,5 and the doctrine was established firmly between the mid nineteenth century and the early twentieth century.
1. Federal Tort Clams Act (FTCA)
The United States, however, could renounce its sovereign immunity. Before the 1949 Federal Tort Clams Act (FTCA),6 it had given up immunity and provided compensation in some tort cases through the legislation of private bills <s9>. In 1946, with the legislation of the FTCA <s11>, the United States gave up its sovereign immunity and made itself liable for its tortuous acts. The FTCA, enacted as part of the Legislative Reorganization Act on 2 August 1946, was a result of efforts that began in the 1920s for remedies for tort victims and the reduction of the excessive burdens posed on Congress.
The FTCA stipulates that district courts shall have exclusive jurisdiction in civil actions on claims against the United States after 1 January 1945 arising from negligent or wrongful acts or omissions of any employee of the United States <YT13> (Art. 1346(b)). In this regard, it can be considered that A-Bomb victims could lodge a claim against the United States under the Act for the damages caused by the bombings that were done in August 1945. Claims under the Act, however, are restricted in the following ways.
First, the FTCA has a wide range of exclusion (Art. 2680). With regard to the atomic bombings, the Act excludes any claim arising out of the combat activities of military or naval forces during the time of war <YT14> (Art. 2680(j))7 and any claim arising in a foreign country <YT15> (Art. 2680(k))8 from its application. And secondly, there is a provision on the statute of limitation (Art. 2041(b)) under which a claim must be made within two years from the day the right to claim is accrued, and if the claim is rejected by a federal agency, a lawsuit that seeks the retraction of the rejection must be filed within six months from the day of the rejection.
Thus, it seems difficult for the Hibakusha to lodge a claim based on the FTCA.
2. Foreign Claims Act
The Foreign Claims Act <s17> (FCA) is another possibility.9 The FCA, enacted on 2 January 1942, provides for compensation to foreigners for financial damages, injury, and death they incurred in non-combat activities of U.S. military personnel in their countries.
But under the FCA, (1) a claim must be made within two years from the day the right to claim is accrued; (2) only those who are citizens of an enemy country or of an ally of the enemy country of the United States and who are recognized as friendly to the United States by the Commission or the U.S. military commander in that country can lodge a claim; and, (3) the right to claim must be one that is accrued not from combat activities, direct or indirect, of U.S. military forces. These provisions exclude the A-Bomb victims from making a claim under the Act.
3. Alien Tort Statute of 1789
Let us examine possible remedies under the Alien Tort Statute <s18> (ATS) of 1789.10 Under the ATS, district courts have original jurisdiction in any civil actions by an alien for a tort committed in violation of the law of nations or a treaty of the United States <s19>. The statute was enacted in response to piracy and an incident involving a diplomat. In modern times, the ATS drew attention in Filartiga v. Pena-Irala in 1980.11
A recent Supreme Court ruling, however, judged that the ATS was a law on jurisdiction and it did not establish a new cause of action <s20>.12 With regard to sovereign immunity, there are precedents that stand for the proposition that the ATS does not represent the renouncement of immunity.13 These findings make it difficult for the A-Bomb victims to bring a claim only on the basis of the ATS. There is a need to demonstrate the existence of the right to claim under laws other than the ATS and to present reasons why sovereign immunity has been given up under the ATS.
4. Possible Remedies under the U.S. Constitution and International Law
I would now like to examine possible remedies under the U.S. Constitution. Amendment V of the U.S. Constitution provides for due process of law.14 From the perspective of international human rights laws, the wording of the article can be interpreted as a restriction on combat activities of U.S. military forces. Could the provision be utilized for the benefit of the A-Bomb victims in seeking judicial remedies? Though there are indeed rulings that are negative about the extraterritorial application of the U.S. Constitution,15 I believe that the possible application of Amendment V for that purpose is worth examining.
As far as the present circumstances are concerned, it is also difficult for the victims to lodge a claim in U.S. courts only on the basis of international law. However, given the arguments that the individual's right to a cause of action was established by Article 3 of the 1907 Hague Convention <YT22> which are being made in multiple cases in U.S. courts, it is worth seeking the possibility of such a right to a claim by the A-Bomb victims as well.
5. Japan's Peace Treaty with the United States and Its Renouncement of the Right to Claim Compensation
Under the 1952 Peace Treaty with the United States, Japan renounced the right of its citizens to bring claims against the United States (Art. 19). Accordingly, Japanese victims of the war activities of the United States are denied their right to bring claims in the Japanese courts.16 In U.S. courts, the U.S. government has rejected such individual claims by citing the waiver provision in the Peace Treaty and the courts have avoided ruling on such cases because they are political problems.17
Provisional Conclusion
1. The doctrine of sovereign immunity of the United States prevent the A-Bomb victims from filing claims against the U.S. government for the damages caused by the atomic bombings.
2. With regard to claims by the A-Bomb victims, there is no statute law that renounces U.S. sovereign immunity, as summarized as follows.
(1) The 1949 Federal Tort Claims Act (FTCA) renounced sovereign immunity but excludes claims arising out of combat activities of the military during the time of war (Art. 2680(j)) and claims arising in a foreign country (Art. 2680(k)). Claims by the A-Bomb victims will fall under these exception clauses.
(2) The 1942 Foreign Claims Act (FCA) provides for compensation to foreigners for financial damages, injury, and death incurred in non-combat activities of U.S. military personnel in their countries (Art. 2734(a)). Therefore, the A-Bomb victims are not qualified for such compensation under the Act. Even if some damages are thought of as being caused by non-combat activities by U.S. military forces that took place after the atomic bombings, a claim under the Act must be filed within two years from the day the right to claim is accrued (Art. 2734(b)).
(3) The 1789 Alien Tort Statute (ATS) recognizes civil action by an alien for a tort committed in violation of international law. But the Statute is understood to be a law on jurisdiction and that it does not represent the renouncement of the sovereign immunity of the United States.
(4) Amendment V of the U.S. Constitution stipulates the due process of law. Whether the Amendment V covers the A-Bomb victims who reside in foreign countries or not is a subject of further study. With regard to the application of international law in such a case, possible litigation based on international human rights law, especially the 1907 Hague Convention, is also a subject of further study.
Achieving remedies for the violation of human rights caused by the atomic bombings in U.S. courts seems extremely difficult as far as the present legal study on the issue is concerned. This does not mean that possibilities of remedies under the U.S. Constitution or international law have been fully examined, which is an important task ahead of us.

Notes:
1. In relation to those member states of the Organization that are not parties to the American Convention on Human Rights, Article 20(c) of Statute of the Inter-American Commission on Human Rights.
2. 50 U.S.C. Appex. 2001 et seq.
3. Decision of the Tokyo District Court, December 7, 1963, Case No. 2914 (wa) of 1955 and Case No. 4177 (wa) of 1957. English translation of decision printed in The Japanese Annual of International Law, No. 8, 1964, pp. 212-253.
4. U.S. Constitution Article 3 Section 2, "The judicial power shall extend...to controversies to which the United States shall be a party..."
5. 45 U.S. 286.
6. 28 U.S.C. 1346(b) and 2671-2680.
7. With regard to third-party claims, however, there are rulings that do not recognize the exemption clause. The case on Agent Orange Product Liability ruled that the FTCA exemption clause on U.S. military combat activities did not prevent litigation by the defendant company against the United States based on the right to third-party claims. The defendant filed a suit against the United States for failing to provide military personnel with guidance on the use of Agent Orange products by taking off the warning labels from the products and by failing to warn of the dangers of drinking water containing the defoliant.
8. Though whether the FTCA could be applied to cases which occurred under U.S. military occupation or in U.S. facilities in foreign countries is a point in dispute, the 1949 case of the U.S. v. Spelar (338 U.S. 217, 1949) was tried based on the question of whether the FTCA denied the plaintiff's claim for compensation for the damage caused by a plane crash in a U.S. military base in Newfoundland, Canada. Also in Okinawa, Japan, plaintiffs' claims for compensation for damages caused by car accidents involving U.S. military personnel under the U.S. military occupation of the island were denied. With regard to activities of U.S. military forces in foreign countries that are taken under direction from their home country, the U.S., there is the question of Headquarters Claims.
9. 10 U.S.C. 2734-2736.
10. 28 U.S.C. 1350.
11. Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cir. 1980).
12. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The Supreme Court ruled the ATS was a law on jurisdiction, not one that established a new cause of action. But it recognized the court's authority in acknowledging customary international law practiced as common law as a basis of cause of action.
13. For example, Goldstar (Panama) v. United States, 967 F. 2d 965, 968 (4th Cir. 1992); El-Shifa Pharmaceutical Industries Company, et al., Plaintiffs, v. United States of America, Defendant. 402 F. Supp. 2d 267; 2005 U.S. Dist. LEXIS 35436.
14. U.S. Constitution Amendment V: "No person shall be... deprived of life, liberty, or property, without due process of law..."
15. For Due Process Clause in Amendment V, Johnson v. Eisentrager, 339 U.S. 763, 771, 94 L. Ed. 1255, 1262, 70 S. Ct. 936, 940 (1950) and for Due Process Clause in Amendment XIV, Jarabe v. Industrial Commission, 519 U.S. 930; 117 S. Ct. 300; 136 L. Ed. 2d 218; 1996 U.S. LEXIS 6178; 65 U.S.L.W. 3293.
16. Decision of Petty Bench II of the Supreme Court of Japan, April 27, 2007, Case No. 1658 (Ju) of 2004 and Decision of Petty Bench I of the Supreme Court of Japan on the same date, Case No. 1735 (Ju) of 2005.
17. For example, Hwang Geum Joo, et al. v. Japan, 367 U.S. App. D.C. 45; 413 F.3d 45; 2005 U.S. App. LEXIS 12755.