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G.R. NO. L-5731

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JUNE 22, 1954

HERBERT BROWNELL, JR., AS ATTORNEY GENERAL OF


THE UNITED STATES, PETITIONER-APPELLEE,
VS.
SUN LIFE ASSURANCE COMPANY OF CANADA,
RESPONDENT-APPELLANT.

Rowland F. Kirks, Stanley Gilbert, Juan T. Santos and


Lino M. Patajo for appelle.
Perkins, Ponce Enrile and Contreras for appellant.

LABRADOR, J.:

This is a petition instituted in the Court of the First Instance


of Manila under the provisions of the Philippine Property Act
of the United States against the Sun Life Assurance Company
of Canada, to compel the latter to comply with the demand
of the former to pay him the sum of P310.10, which
represents one-half of the proceeds of an endowment policy
(No. 757199) which matured on August 20, 1946, and which
is payable to one Naogiro Aihara, a Japanese national. Under
the policy Aihara and his wife, Filomena Gayapan, were
insured jointly for the sum of P1,000, and upon its maturity
the proceeds thereof were payable to said insured, share and
share alike, or P310.10 each. The defenses set up in the
court of origin are: (1) that the immunities provided in
section 5 (b) (2) of the Trading With the Enemy Act of the
United States are of doubtful application in the Philippines,
and have never been adopted by any law of the Philippines
as applicable here or obligatory on the local courts; (2) that
the defendant is a trustee of the funds and is under a legal
obligation to see it to that it is paid to the person or persons
entitled thereto, and unless the petitioner executes a
suitable discharge and an adequate guarantee to indemnify
and keep it free and harmless from any further liability under
the policy, it may not be compelled to make the payment
demanded. The Court of First Instance of Manila having
approved and granted the petition, the respondent has
appealed to this Court, contending that the Court of origin
erred in holding that the Trading With the Enemy Act of the
United States is binding upon the inhabitants of this country,
notwithstanding the attainment of complete independence
on July 4, 1946, and in ordering the payment prayed for.

On July 3, 1946, the Congress of the United States passed


Public Law 485-79th Congress, known as the Philippine
Property Act of 1946. Section 3 thereof provides that "The
Trading with the Enemy Act of October 6, 1917 (40 Stat.
411), as amended, shall continue in force in the Philippines
after July 4, 1946, ...." To implement the provisions of the act,
the President of the United States on July 3, 1946,
promulgated Executive Order No. 9747, "continuing the
functions of the Alien Property Custodian and the
Department of the Treasury in the Philippines." Prior to and
preparatory to the approval of said Philippine Property Act of

1946, an agreement was entered into between President


Manuel Roxas of the Commonwealth and U. S. Commissioner
Paul V. McNutt whereby title to enemy agricultural lands and
other properties was to be conveyed by the United States to
the Philippines in order to help the rehabilitation of the latter,
but that in order to avoid complex legal problems in relation
to said enemy properties, the Alien Property Custodian of the
United States was to continue operations in the Philippines
even after the latter's independence, that he may settle all
claims that may exist or arise against the above-mentioned
enemy properties, in accordance with the Trading With the
Enemy Act of the United States. (Report of the Committee on
Insural Affairs No. 2296 and Senate Report No. 1578 from the
Committee on Territories and Insular Affairs, to accompany S.
2345, accompanying H. R. 6801, 79th Congress, 2nd
Session.) This purpose of conveying enemy properties to the
Philippines after all claims against them shall have been
settled is expressly embodied in the Philippine Property Act
of 1946.

SEC. 3. The Trading With the Enemy Act of October 6, 1917


(40 Stat. 411) is amended, shall continue in force in the
Philippines after July 4, 1946, and all powers and authority
conferred upon the President of the United States or the
Alien Property Custodian by the terms of the said Trading
With the Enemy Act, as amended, with respect to the
Philippines, shall continue thereafter to be exercised by the
President of the United States, or such officer or agency as
he may designate: Provided, That all property vested in or
transferred to the President of the United States, the Alien
Property Custodian, or any such officer or agency as the
President of the United States may designate under the
Trading With the Enemy Act, as amended, which was located
in the Philippines at the time of such vesting, or the proceeds
thereof, and which shall remain after the satisfaction of any
claim payable under the Trading With the Enemy Act, as
amended, and after the payment of such costs and expenses
of administration as may be law be charged against such
property or proceeds, shall be transferred by the President of
the United States to the Republic of the Philippines: Provided
further, That such property, or proceeds thereof, may be
transferred by the President of the United States to the
Republic of the Philippines upon indemnification acceptable
to the President of the United States by the Republic of the
Philippines for such claims, costs, and expenses of
administration as may by law be charged against such
property or proceeds thereof before final adjudication of such
claims, costs and expenses of administration. Provided
further, That the courts of first instance of the Republic of the
Philippines are hereby given jurisdiction to make and enter
all such rules as to notice or otherwise, and all such orders
and decrees and to issue such process as may be necessary
and proper in the premises to enforce any orders, rules, and
regulations issued by the President of the United States, the
Alien Property Custodian, or such officer or agency
designated by the President of the United States pursuant to
the Trading With the Enemy Act, as amended, with such right
of appeal therefrom as may be provided by law: And
provided further, That any suit authorized under the Trading
With the Enemy Act, as amended, with respect to property
vested in or transferred to the President of the United States,
the Alien Property Custodian, or any officer or agency

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designated by the President of the United States hereunder,
which at the time of such vesting or transfer was located
with the Philippines, shall after July 4, 1946, be brought in
the appropriate court of first instance of the Republic of the
Philippines, against the officer or agency hereunder
designated by the President of the United States with right of
appeal therefrom as may be provided by law. In any litigation
authorized under this section, the officer or administrative
head of the agency designated hereunder may appear
personally, or through attorneys appointed by him, without
regard to the requirements of law other than this section.

And when the proclamation of the independence of the


Philippines by President Truman was made, said
independence was granted "in accordance with the subject
to the reservations provided in the applicable statutes of the
Unites States." The enforcement of the Trading With the
Enemy Act of the United States was contemplated to be
made applicable after independence, within the meaning of
the reservations.

On the part of the Philippines, conformity to the enactment


of the Philippine Property Act of 1946 of the United States
was announced by President Manuel Roxas in a joint
statement signed by him and by Commissioner Mcnutt.
Ambassador Romulo also formally expressed the conformity
of the Philippines Government to the approval of said act to
the American Senate prior to its approval. And after the
grant of independence, the Congress of the Philippines
approved Republic Act No. 8, entitled.

AN ACT TO AUTHORIZE THE PRESIDENT OF THE PHLIPPINES


TO ENTER INTO SUCH CONTRACT OR UNDERTAKINGS AS MAY
BE NECESSARY TO EFFECTUATE THE TRANSFER TO THE
REPUBLIC OF THE PHILIPPINES UNDER THE PHILIPPINES
PROPERTY ACT OF NINETEEN HUNDRED AND FORTY-SIX OF
ANY PROPERTY OR PROPERTY RIGHTS OR THE PROCEEDS
THEREOF AUTHORIZED TO BE TRANSFERRED UNDER SAID
ACT;
PROVIDING
FOR
THE
ADMINISTRATION
AND
DISPOSITION OF SUCH PROPERTIES ONCE RECEIVED; AND
APPROPRIATING THE NECESSARY FUND THEREFOR.

The Congress of the Philippines also approved Republic Act


No. 7, which established a Foreign Funds Control Office. After
the approval of the Philippine Property Act of 1946 of the
United States, the Philippine Government also formally
expressed, through the Secretary of Foreign Affairs,
conformity thereto. (See letters of Secretary dated August
22, 1946, and June 3, 1947.) The Congress of the Philippines
has also approved Republic Act No. 477, which provides for
the administration and disposition of properties which have
been or may hereafter be transferred to the Republic of the
Philippines in accordance with the Philippines Property Act of
1946 of the United States.

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It is evident, therefore, that the consent of the Philippine
Government to the application of the Philippine Property Act
of 1946 to the Philippines after independence was given, not
only by the Executive Department of the Philippines
Government, but also by the Congress, which enacted the
laws that would implement or carry out the benefits accruing
from the operation of the United States law. The respondentappellant, however, contends that the operation of the law
after independence could not have actually taken, or may
not take place, because both Republic Act No. 8 and Republic
Act No. 477 do not contain any specific provision whereby
the Philippine Property Act of 1946 or its provisions is made
applicable to the Philippines. It is also contended that in the
absence of such express provision in any of the laws passed
by the Philippine Congress, said Philippine Property Act of
1946 does not form part of our laws and is not binding upon
the courts and inhabitants of the country.

There is no question that a foreign law may have


extraterritorial effect in a country other than the country of
origin, provided the latter, in which it is sought to be made
operative, gives its consent thereto. This principle is
supported by the unquestioned authority.

The jurisdiction of the nation within its territory is necessarily


exclusive and absolute. It is susceptible of no limitation not
imposed by itself. Any restriction upon it, deriving validity
from an external source, would imply a diminution of its
sovereignty to the extent of the restriction, and an
investment of that sovereignty to the same extent in that
power in which would impose such restriction. All exceptions,
therefore, to the full and complete power of a nation within
its own territories, must be traced up to the consent of the
nation itself. They can flow from no other legitimate source.
This consent may be either express or implied. (Philippine
Political Law by Sinco, pp. 27-28, citing Chief Justice
Marshall's statement in the Exchange, 7 Cranch 116)

In the course of his dissenting opinion in the case of S. S.


Lotus, decided by the Permanent Court of International
Justice, John Bassett Moore said:

1. It is an admitted principle of International Law that a


nation possesses and exercises within its own territory an
absolute and exclusive jurisdiction, and that any exception to
this right must be traced to the consent of the nation, either
express or implied (Schooner Exchange vs. McFadden [812],
7 Cranch 116, 136). The benefit of this principle equally
enures to all independent and sovereign States, and is
attended with a corresponding responsibility for what takes
place within the national territory. (Digest of International
Law, by Backworth, Vol. II, pp. 1-2)

The above principle is not denied by respondent-appellant.


But its argument on this appeal is that while the acts

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enacted by the Philippine Congress impliedly accept the
benefits of the operation of the United States law (Philippine
Property Act of 1946), no provision in the said acts of the
Philippine Congress makes said United States law expressly
applicable. In answer to this contention, it must be stated
that the consent of a Senate to the operation of a foreign law
within its territory does not need to be express; it is enough
that said consent be implied from its conduct or from that of
its authorized officers.

515. No rule of International Law exists which prescribe a


necessary form of ratification. Ratification can, therefore,
be given tacitly as well as expressly. Tacit ratification takes
place when a State begins the execution of a treaty without
expressly ratifying it. It is usual for ratification to take the
form of a document duly signed by the Heads of the States
concerned and their Secretaries for Foreign Affairs. It is usual
to draft as many documents as there are parties to the
Convention, and to exchange these documents between the
parties. Occasionally the whole of the treaty is recited
verbatim in the ratifying documents, but sometimes only the
title, preamble, and date of the treaty, and the names of the
signatory representatives are cited. As ratification is only the
confirmation of an already existing treaty, the essential
requirements in a ratifying document is merely that it should
refer clearly and unmistakably to the treaty to be ratified.
The citation of title, preamble, date, and names of the
representatives is, therefore quite sufficient to satisfy that
requirements. (Oppenheim, pp. 818-819; emphasis ours.)

International Law does not require that agreements between


nations must be concluded in any particular form or style.
The law of nations is much more interested in the faithful
performance of international obligations than in prescribing
procedural
requirements.
(Treaties
and
Executive
Agreements, by Myers S. McDougal and Asher Lands, Yale
Law Journal, Vol. 54, pp. 318-319)

In the case at bar, our ratification of or concurrence to the


agreement for the extension of the Philippine Property Act of
1946 is clearly implied from the acts of the President of the
Philippines and of the Secretary of Foreign Affairs, as well as
by the enactment of Republic Acts Nos. 7, 8, and 477.

We must emphasize the fact that the operation of the


Philippine Property Act of 1946 in the Philippines is not
derived from the unilateral act of the United States Congress,
which made it expressly applicable, or from the saving
provision contained in the proclamation of independence. It
is well-settled in the United States that its laws have no
extraterritorial effect. The application of said law in the
Philippines is based concurrently on said act (Philippine
Property Act of 1946) and on the tacit consent thereto and
the conduct of the Philippine Government itself in receiving
the benefits of its provisions.

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It is also claimed by the respondent-appellant that the trial
court erred in ordering it to pay the petitioner the amount
demanded, without the execution by the petitioner of a deed
of discharge and indemnity for its protection. The Trading
With the Enemy Act of the United States, the application of
which was extended to the Philippines by mutual agreement
of the two Governments, contains an express provision to the
effect that delivery of property or interest therein made to or
for the account of the United States in pursuance of the
provision of the law, shall be considered as a full acquittance
and discharge for purposes of the obligation of the person
making the delivery or payment. (Section 5(b) (2), Trading
With the Enemy Act.) This express provision of the United
States law saves the respondent-appellant from any further
liability for the amount ordered to be paid to the petitioner,
and fully protects it from any further claim with respect
thereto. The request of the respondent-appellant that a
security be granted it for the payment to be made under the
law is, therefore, unnecessary, because the judgment
rendered in this case is sufficient to prove such acquittance
and discharge.

The decision appealed from should be as it is hereby


affirmed, with costs against the respondent-appellant.

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G.R. NO. 128845

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JUNE 1, 2000
c. To which country does one owe economic allegiance?

INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS


(ISAE), PETITIONER,
VS.
HON. LEONARDO A. QUISUMBING IN HIS CAPACITY AS
THE SECRETARY OF LABOR AND EMPLOYMENT; HON.
CRESENCIANO B. TRAJANO IN HIS CAPACITY AS THE
ACTING SECRETARY OF LABOR AND EMPLOYMENT; DR.
BRIAN MACCAULEY IN HIS CAPACITY AS THE
SUPERINTENDENT
OF
INTERNATIONAL
SCHOOLMANILA;
AND
INTERNATIONAL
SCHOOL,
INC.,
RESPONDENTS.

KAPUNAN, J.:

Receiving salaries less than their counterparts hired abroad,


the local-hires of private respondent School, mostly Filipinos,
cry discrimination. We agree. That the local-hires are paid
more than their colleagues in other schools is, of course,
beside the point. The point is that employees should be
given equal pay for work of equal value. That is a principle
long honored in this jurisdiction. That is a principle that rests
on fundamental notions of justice. That is the principle we
uphold today.1wphi1.nt

Private respondent International School, Inc. (the School, for


short), pursuant to Presidential Decree 732, is a domestic
educational institution established primarily for dependents
of foreign diplomatic personnel and other temporary
residents.1 To enable the School to continue carrying out its
educational program and improve its standard of instruction,
Section 2(c) of the same decree authorizes the School to
employ its own teaching and management personnel
selected by it either locally or abroad, from Philippine or
other nationalities, such personnel being exempt from
otherwise applicable laws and regulations attending their
employment, except laws that have been or will be enacted
for the protection of employees.

Accordingly, the School hires both foreign and local teachers


as members of its faculty, classifying the same into two: (1)
foreign-hires and (2) local-hires. The School employs four
tests to determine whether a faculty member should be
classified as a foreign-hire or a local hire:

a. What is one's domicile?

b. Where is one's home economy?

d. Was the individual hired abroad specifically to work in the


School and was the School responsible for bringing that
individual to the Philippines?2

Should the answer to any of these queries point to the


Philippines, the faculty member is classified as a local hire;
otherwise, he or she is deemed a foreign-hire.

The School grants foreign-hires certain benefits not accorded


local-hires.1avvphi1 These include housing, transportation,
shipping costs, taxes, and home leave travel allowance.
Foreign-hires are also paid a salary rate twenty-five percent
(25%) more than local-hires. The School justifies the
difference on two "significant economic disadvantages"
foreign-hires have to endure, namely: (a) the "dislocation
factor" and (b) limited tenure. The School explains:

A foreign-hire would necessarily have to uproot himself from


his home country, leave his family and friends, and take the
risk of deviating from a promising career path all for the
purpose of pursuing his profession as an educator, but this
time in a foreign land. The new foreign hire is faced with
economic realities: decent abode for oneself and/or for one's
family, effective means of transportation, allowance for the
education of one's children, adequate insurance against
illness and death, and of course the primary benefit of a
basic salary/retirement compensation.

Because of a limited tenure, the foreign hire is confronted


again with the same economic reality after his term: that he
will eventually and inevitably return to his home country
where he will have to confront the uncertainty of obtaining
suitable employment after along period in a foreign land.

The compensation scheme is simply the School's adaptive


measure to remain competitive on an international level in
terms of attracting competent professionals in the field of
international education.3

When negotiations for a new collective bargaining


agreement were held on June 1995, petitioner International
School Alliance of Educators, "a legitimate labor union and
the collective bargaining representative of all faculty
members"4 of the School, contested the difference in salary
rates between foreign and local-hires. This issue, as well as
the question of whether foreign-hires should be included in
the appropriate bargaining unit, eventually caused a
deadlock between the parties.

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and conditions of employment which include
employment which include the employment contract.

On September 7, 1995, petitioner filed a notice of strike. The


failure of the National Conciliation and Mediation Board to
bring the parties to a compromise prompted the Department
of Labor and Employment (DOLE) to assume jurisdiction over
the dispute. On June 10, 1996, the DOLE Acting Secretary,
Crescenciano B. Trajano, issued an Order resolving the parity
and representation issues in favor of the School. Then DOLE
Secretary Leonardo A. Quisumbing subsequently denied
petitioner's motion for reconsideration in an Order dated
March 19, 1997. Petitioner now seeks relief in this Court.

Petitioner claims that the point-of-hire classification


employed by the School is discriminatory to Filipinos and that
the grant of higher salaries to foreign-hires constitutes racial
discrimination.

the

A perusal of the parties' 1992-1995 CBA points us to the


conditions and provisions for salary and professional
compensation wherein the parties agree as follows:

All members of the bargaining unit shall be compensated


only in accordance with Appendix C hereof provided that the
Superintendent of the School has the discretion to recruit
and hire expatriate teachers from abroad, under terms and
conditions that are consistent with accepted international
practice.

Appendix C of said CBA further provides:


The School disputes these claims and gives a breakdown of
its faculty members, numbering 38 in all, with nationalities
other than Filipino, who have been hired locally and classified
as local hires.5 The Acting Secretary of Labor found that
these non-Filipino local-hires received the same benefits as
the Filipino local-hires.

The compensation package given to local-hires has been


shown to apply to all, regardless of race. Truth to tell, there
are foreigners who have been hired locally and who are paid
equally as Filipino local hires.6

The Acting secretary upheld the point-of-hire classification


for the distinction in salary rates:

The Principle "equal pay for equal work" does not find
applications in the present case. The international character
of the School requires the hiring of foreign personnel to deal
with different nationalities and different cultures, among the
student population.

We also take cognizance of the existence of a system of


salaries and benefits accorded to foreign hired personnel
which system is universally recognized. We agree that
certain amenities have to be provided to these people in
order to entice them to render their services in the
Philippines and in the process remain competitive in the
international market.

Furthermore, we took note of the fact that foreign hires have


limited contract of employment unlike the local hires who
enjoy security of tenure. To apply parity therefore, in wages
and other benefits would also require parity in other terms

The new salary schedule is deemed at equity with the


Overseas Recruited Staff (OSRS) salary schedule. The 25%
differential is reflective of the agreed value of system
displacement and contracted status of the OSRS as
differentiated from the tenured status of Locally Recruited
Staff (LRS).

To our mind, these provisions demonstrate the parties'


recognition of the difference in the status of two types of
employees, hence, the difference in their salaries.

The Union cannot also invoke the equal protection clause to


justify its claim of parity. It is an established principle of
constitutional law that the guarantee of equal protection of
the laws is not violated by legislation or private covenants
based on reasonable classification. A classification is
reasonable if it is based on substantial distinctions and apply
to all members of the same class. Verily, there is a
substantial distinction between foreign hires and local hires,
the former enjoying only a limited tenure, having no
amenities of their own in the Philippines and have to be
given a good compensation package in order to attract them
to join the teaching faculty of the School.7

We cannot agree.

That public policy abhors inequality and discrimination is


beyond contention. Our Constitution and laws reflect the
policy against these evils. The Constitution8 in the Article on
Social Justice and Human Rights exhorts Congress to "give
highest priority to the enactment of measures that protect
and enhance the right of all people to human dignity, reduce
social, economic, and political inequalities." The very broad
Article 19 of the Civil Code requires every person, "in the

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exercise of his rights and in the performance of his duties,


[to] act with justice, give everyone his due, and observe
honesty and good faith.

The States Parties to the present Covenant recognize the


right of everyone to the enjoyment of just and favourable
conditions of work, which ensure, in particular:

International law, which springs from general principles of


law,9 likewise proscribes discrimination. General principles of
law include principles of equity, 10 i.e., the general principles
of fairness and justice, based on the test of what is
reasonable. 11 The Universal Declaration of Human Rights,
12 the International Covenant on Economic, Social, and
Cultural Rights, 13 the International Convention on the
Elimination of All Forms of Racial Discrimination, 14 the
Convention against Discrimination in Education, 15 the
Convention (No. 111) Concerning Discrimination in Respect
of Employment and Occupation 16 all embody the general
principle against discrimination, the very antithesis of
fairness and justice. The Philippines, through its Constitution,
has incorporated this principle as part of its national laws.

a. Remuneration which provides all workers, as a minimum,


with:

In the workplace, where the relations between capital and


labor are often skewed in favor of capital, inequality and
discrimination by the employer are all the more
reprehensible.

The Constitution 17 specifically provides that labor is entitled


to "humane conditions of work." These conditions are not
restricted to the physical workplace the factory, the office
or the field but include as well the manner by which
employers treat their employees.

The Constitution 18 also directs the State to promote


"equality of employment opportunities for all." Similarly, the
Labor Code 19 provides that the State shall "ensure equal
work opportunities regardless of sex, race or creed." It would
be an affront to both the spirit and letter of these provisions
if the State, in spite of its primordial obligation to promote
and ensure equal employment opportunities, closes its eyes
to unequal and discriminatory terms and conditions of
employment. 20

Discrimination, particularly in terms of wages, is frowned


upon by the Labor Code. Article 135, for example, prohibits
and penalizes 21 the payment of lesser compensation to a
female employee as against a male employee for work of
equal value. Article 248 declares it an unfair labor practice
for an employer to discriminate in regard to wages in order
to encourage or discourage membership in any labor
organization.

Notably, the International Covenant on Economic, Social, and


Cultural Rights, supra, in Article 7 thereof, provides:

(i) Fair wages and equal remuneration for work of equal


value without distinction of any kind, in particular women
being guaranteed conditions of work not inferior to those
enjoyed by men, with equal pay for equal work;

xxx

xxx

xxx

The foregoing provisions impregnably institutionalize in this


jurisdiction the long honored legal truism of "equal pay for
equal work." Persons who work with substantially equal
qualifications, skill, effort and responsibility, under similar
conditions, should be paid similar salaries. 22 This rule
applies to the School, its "international character"
notwithstanding.

The School contends that petitioner has not adduced


evidence that local-hires perform work equal to that of
foreign-hires. 23 The Court finds this argument a little
cavalier. If an employer accords employees the same
position and rank, the presumption is that these employees
perform equal work. This presumption is borne by logic and
human experience. If the employer pays one employee less
than the rest, it is not for that employee to explain why he
receives less or why the others receive more. That would be
adding insult to injury. The employer has discriminated
against that employee; it is for the employer to explain why
the employee is treated unfairly.

The employer in this case has failed to discharge this burden.


There is no evidence here that foreign-hires perform 25%
more efficiently or effectively than the local-hires. Both
groups have similar functions and responsibilities, which they
perform under similar working conditions.

The School cannot invoke the need to entice foreign-hires to


leave their domicile to rationalize the distinction in salary
rates without violating the principle of equal work for equal
pay.

"Salary" is defined in Black's Law Dictionary (5th ed.) as "a


reward or recompense for services performed." Similarly, the
Philippine Legal Encyclopedia states that "salary" is the
"[c]onsideration paid at regular intervals for the rendering of

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services." In Songco v. National Labor Relations Commission,
24 we said that:

"salary" means a recompense or consideration made to a


person for his pains or industry in another man's business.
Whether it be derived from "salarium," or more fancifully
from "sal," the pay of the Roman soldier, it carries with it the
fundamental idea of compensation for services rendered.
(Emphasis supplied.)

While we recognize the need of the School to attract foreignhires, salaries should not be used as an enticement to the
prejudice of local-hires. The local-hires perform the same
services as foreign-hires and they ought to be paid the same
salaries as the latter. For the same reason, the "dislocation
factor" and the foreign-hires' limited tenure also cannot
serve as valid bases for the distinction in salary rates. The
dislocation factor and limited tenure affecting foreign-hires
are adequately compensated by certain benefits accorded
them which are not enjoyed by local-hires, such as housing,
transportation, shipping costs, taxes and home leave travel
allowances.

The Constitution enjoins the State to "protect the rights of


workers and promote their welfare," 25 "to afford labor full
protection." 26 The State, therefore, has the right and duty
to regulate the relations between labor and capital. 27 These
relations are not merely contractual but are so impressed
with public interest that labor contracts, collective bargaining
agreements included, must yield to the common good. 28
Should such contracts contain stipulations that are contrary
to public policy, courts will not hesitate to strike down these
stipulations.

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employees (Globe Doctrine); (2) affinity and unity of the
employees' interest, such as substantial similarity of work
and duties, or similarity of compensation and working
conditions (Substantial Mutual Interests Rule); (3) prior
collective bargaining history; and (4) similarity of
employment status. 30 The basic test of an asserted
bargaining unit's acceptability is whether or not it is
fundamentally the combination which will best assure to all
employees the exercise of their collective bargaining rights.
31

It does not appear that foreign-hires have indicated their


intention to be grouped together with local-hires for
purposes of collective bargaining. The collective bargaining
history in the School also shows that these groups were
always treated separately. Foreign-hires have limited tenure;
local-hires enjoy security of tenure. Although foreign-hires
perform similar functions under the same working conditions
as the local-hires, foreign-hires are accorded certain benefits
not granted to local-hires. These benefits, such as housing,
transportation, shipping costs, taxes, and home leave travel
allowance, are reasonably related to their status as foreignhires, and justify the exclusion of the former from the latter.
To include foreign-hires in a bargaining unit with local-hires
would not assure either group the exercise of their respective
collective bargaining rights.

WHEREFORE, the petition is GIVEN DUE COURSE. The


petition is hereby GRANTED IN PART. The Orders of the
Secretary of Labor and Employment dated June 10, 1996 and
March 19, 1997, are hereby REVERSED and SET ASIDE
insofar as they uphold the practice of respondent School of
according foreign-hires higher salaries than local-hires.

SO ORDERED.
In this case, we find the point-of-hire classification employed
by respondent School to justify the distinction in the salary
rates of foreign-hires and local hires to be an invalid
classification. There is no reasonable distinction between the
services rendered by foreign-hires and local-hires. The
practice of the School of according higher salaries to foreignhires contravenes public policy and, certainly, does not
deserve the sympathy of this Court.1avvphi1

We agree, however, that foreign-hires do not belong to the


same bargaining unit as the local-hires.

A bargaining unit is "a group of employees of a given


employer, comprised of all or less than all of the entire body
of employees, consistent with equity to the employer,
indicate to be the best suited to serve the reciprocal rights
and duties of the parties under the collective bargaining
provisions of the law." 29 The factors in determining the
appropriate collective bargaining unit are (1) the will of the

meikimouse

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at
the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the
convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S.
321, 337.

SUPREME COURT OF THE UNITED STATES


SMALL v. UNITED STATES
CERTIORARI TO THE UNITED STATES
APPEALS FOR THE THIRD CIRCUIT

COURT

U.S. law where foreign convictions, rather than domestic


convictions, are at issue. In addition, it is difficult to read the
statute as asking judges or prosecutors to refine its
definitional distinctions where foreign convictions are at
issue. To somehow weed out inappropriate foreign
convictions that meet the statutory definition is not
consistent with the statutes language; it is not easy for
those not versed in foreign laws to accomplish; and it would
leave those previously convicted in a foreign court (say of
economic crimes) uncertain about their legal obligations.
These considerations provide a convincing basis for
applying the ordinary assumption about the reach of
domestically oriented statutes here. Thus, the Court assumes
a congressional intent that the phrase convicted in any
court applies domestically, not extraterritorially, unless the
statutory language, context, history, or purpose shows the
contrary. Pp. 25.

OF

No. 03750.Argued November 3, 2004Decided April


26, 2005
Petitioner Small was convicted in a Japanese Court of trying
to smuggle firearms and ammunition into that country. He
served five years in prison and then returned to the United
States, where he bought a gun. Federal authorities
subsequently charged Small under 18 U.S.C. 922(g)(1),
which forbids any person convicted in any court of a
crime punishable by imprisonment for a term exceeding one
year to possess any firearm. (Emphasis added.)
Small pleaded guilty while reserving the right to challenge
his conviction on the ground that his earlier conviction, being
foreign, fell outside 922(g)(1)s scope. The Federal District
Court and the Third Circuit rejected this argument.

Held: Section 922(g)(1)s phrase convicted in any court


encompasses only domestic, not foreign, convictions. Pp. 2
9.

(a) In considering the scope of the phrase convicted in


any court it is appropriate to assume that Congress had
domestic concerns in mind. This assumption is similar to the
legal presumption that Congress ordinarily intends its
statutes to have domestic, not extraterritorial, application,
see, e.g., Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285. The
phrase convicted in any court describes one necessary
portion of the gun possession activity that is prohibited as
a matter of domestic law. Moreover, because foreign
convictions may include convictions for conduct that
domestic laws would permit, e.g., for engaging in economic
conduct that our society might encourage, convictions from
a legal system that are inconsistent with American
understanding of fairness, and convictions for conduct that
domestic law punishes far less severely, the key statutory
phrase convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year somewhat less
reliably identifies dangerous individuals for the purposes of

(b) There is no convincing indication to the contrary here.


The statutes language suggests no intent to reach
beyond domestic convictions. To the contrary, if read to
include foreign convictions, the statutes language creates
anomalies. For example, in creating an exception allowing
gun possession despite a conviction for an antitrust or
business regulatory crime, 921(a)(20)(A) speaks of Federal
or State antitrust or regulatory offenses. If the phrase
convicted in any court generally refers only to domestic
convictions, this language causes no problem.
But if the
phrase includes foreign convictions, the words Federal or
State prevent the exception from applying where a foreign
antitrust or regulatory conviction is at issue. Such illustrative
examples suggest that Congress did not consider whether
the generic phrase convicted in any court applies to
foreign convictions. Moreover, the statutes legislative
history indicates no intent to reach beyond domestic
convictions. Although the statutory purpose of keeping guns
from those likely to become a threat to society does offer
some support for reading 922(g)(1) to include foreign
convictions, the likelihood that Congress, at best, paid no
attention to the matter is reinforced by the empirical fact
that, according to the Government, since 1968, there have
fewer than a dozen instances in which such a foreign
conviction has served as a predicate for a felon-in-possession
prosecution. Pp. 58.

333 F.3d 425, reversed and remanded.

9
NOTE:Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at
the time the opinion is issued.The syllabus constitutes no
part of the opinion of the Court but has been prepared by the
Reporter of Decisions for the convenience of the reader.See
United States v. Detroit Timber & Lumber Co., 200 U. S. 321.

SUPREME COURT OF THE UNITED STATES


Syllabus

KIOBEL, INDIVIDUALLY AND ON BEHALF OF HER LATE


HUSBAND
KIOBEL,
ET
AL.
V.
ROYAL
DUTCH
PETROLEUM CO. ET AL.

certiorari to the united states court of appeals for the


second circuit
No. 101491.Argued February 28, 2012Reargued
October 1, 2012Decided April 17, 2013
Petitioners, Nigerian nationals residing in the United States,
filed suit in federal court under the Alien Tort Statute,
alleging that respondentscertain Dutch, British, and
Nigerian corporationsaided and abetted the Nigerian
Government in committing violations of the law of nations in
Nigeria. The ATS provides that [t]he district courts shall
have original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or a
treaty of the United States. 28 U. S. C. 1350. The District
Court dismissed several of petitioners claims, but on
interlocutory appeal, the Second Circuit dismissed the entire
complaint, reasoning that the law of nations does not
recognize corporate liability. This Court granted certiorari,
and ordered supplemental briefing on whether and under
what circumstances courts may recognize a cause of action
under the ATS, for violations of the law of nations occurring
within the territory of a sovereign other than the United
States.

Held: The presumption against extraterritoriality applies to


claims under the ATS, and nothing in the statute rebuts that
presumption. Pp. 314.

(a) Passed as part of the Judiciary Act of 1789, the ATS is a


jurisdictional statute that creates no causes of action. It
permits federal courts to recognize private claims [for a
modest number of international law violations] under federal
common law. Sosa v. Alvarez-Machain, 542 U. S. 692. In
contending that a claim under the ATS does not reach
conduct occurring in a foreign sovereigns territory,
respondents rely on the presumption against extraterritorial
application, which provides that [w]hen a statute gives no
clear indication of an extraterritorial application, it has
none, Morrison v. National Australia Bank Ltd., 561 U. S. ___,

meikimouse
___. The presumption serves to protect against unintended
clashes between our laws and those of other nations which
could result in international discord. EEOC v. Arabian
American Oil Co., 499 U. S. 244. It is typically applied to
discern whether an Act of Congress regulating conduct
applies abroad, see, e.g., id., at 246, but its underlying
principles similarly constrain courts when considering causes
of action that may be brought under the ATS. Indeed, the
danger of unwarranted judicial interference in the conduct of
foreign policy is magnified in this context, where the
question is not what Congress has done but what courts may
do. These foreign policy concerns are not diminished by the
fact that Sosa limited federal courts to recognizing causes of
action only for alleged violations of international law norms
that are specific, universal, and obligatory, 542 U. S., at
732. Pp. 36.

(b) The presumption is not rebutted by the text, history, or


purposes of the ATS. Nothing in the ATSs text evinces a clear
indication of extraterritorial reach. Violations of the law of
nations affectingaliens can occur either within or outside the
United States. And generic terms, like any in the phrase
any civil action, do not rebut the presumption against
extraterritoriality. See, e.g., Morrison, supra, at ___.
Petitioners also rely on the common-law transitory torts
doctrine, but that doctrine is inapposite here; as the Court
has explained, the only justification for allowing a party to
recover when the cause of action arose in another civilized
jurisdiction is a well-founded belief that it was a cause of
action in that place, Cuba R. Co. v. Crosby, 222 U. S. 473.
The question under Sosa is not whether a federal court has
jurisdiction to entertain a cause of action provided by foreign
or even international law. The question is instead whether
the court has authority to recognize a cause of action under
U. S. law to enforce a norm of international law. That
question is not answered by the mere fact that the ATS
mentions torts.

The historical background against which the ATS was


enacted also does not overcome the presumption. When the
ATS was passed, three principal offenses against the law of
nations had been identified by Blackstone: violation of safe
conducts, infringement of the rights of ambassadors, and
piracy. Sosa, supra, at 723, 724. Prominent contemporary
examples of the first two offensesimmediately before and
after passage of the ATSprovide no support for the
proposition that Congress expected causes of action to be
brought under the statute for violations of the law of nations
occurring abroad. And although the offense of piracy
normally occurs on the high seas, beyond the territorial
jurisdiction of the United States or any other country,
applying U. S. law to pirates does not typically impose the
sovereign will of the United States onto conduct occurring
within the territorial jurisdiction of another sovereign, and
therefore carries less direct foreign policy consequences. A
1795 opinion of Attorney General William Bradford regarding
the conduct of U. S. citizens on both the high seas and a
foreign shore is at best ambiguous about the ATSs
extraterritorial application; it does not suffice to counter the
weighty concerns underlying the presumption against

10
extraterritoriality. Finally, there is no indication that the ATS
was passed to make the United States a uniquely hospitable
forum for the enforcement of international norms. Pp. 614.

meikimouse
upon them at the Abu Ghraib prison in Iraq. Defendants
move to dismiss on a number of grounds. Their motion must
be granted as to most counts. It will be denied however, as
to several of plaintiffs common law claims.

621 F. 3d 111, affirmed.


Background
Roberts, C. J., delivered the opinion of the Court, in which
Scalia, Kennedy, Thomas, and Alito, JJ., joined. Kennedy, J.,
filed a concurring opinion. Alito, J., filed a concurring opinion,
in which Thomas, J., joined. Breyer, J., filed an opinion
concurring in the judgment, in which Ginsburg, Sotomayor,
and Kagan, JJ., joined.

Plaintiffs are seven Iraqi nationals who allege that they or


their late husbands were tortured while detained by the U.S.
military at the Abu Ghraib prison in Iraq. Defendants are
private government contractors who provided interpreters
(Titan) and interrogators (CACI) to the U.S. military in Iraq.
Plaintiffs apparently concede that they cannot sue the U.S.
Government because of sovereign immunity.

391 F.Supp.2d 10

United States District Court, District of Columbia.

ILHAM NASSIR IBRAHIM, ET AL., PLAINTIFFS,


V. TITAN CORPORATION, ET AL., DEFENDANTS.

CIV.A. NO. 04-1248(JR).

AUG. 12, 2005.

[*12] COUNSEL: L. Palmer Foret, The Law Firm of L. Palmer


Foret, PC, Chevy Chase, MD, Craig T. Jones, Edmond & Jones,
LLP, Atlanta, GA, Susan L. Burke, Burke Pyle LLC,
Philadelphia, PA, for Plaintiffs
Ari Shlomo Zymelman, Williams & Connolly, Washington, DC,
John F. OConnor, Jr., Steptoe & Johnson, L.L.P., Washington,
DC, for Defendants.

MEMORANDUM

Plaintiffs allegations are broad and serious. They assert that


defendants and/or their agents tortured one or more of them
by: beating them; depriving them of food and water;
subjecting them to long periods of excessive noise; forcing
them to be naked for prolonged periods; holding a pistol
(which turned out to be unloaded) to the head of one of them
and pulling the trigger; threatening to attack them with dogs;
exposing them to cold for prolonged periods; urinating on
them; depriving them of sleep; making them listen to loud
music; photographing them while naked; forcing them to
witness the abuse of other prisoners, including rape, sexual
abuse, beatings and attacks by dogs; gouging out an eye;
breaking a leg; electrocuting one of them; spearing one of
them; forcing one of them to wear women s underwear over
his head; having women soldiers order [*13] one of them to
take off his clothes and then beating him when he refused to
do so; forbidding one of them to pray, withholding food
during Ramadan, and otherwise ridiculing and mistreating
him for his religious beliefs; and falsely telling one of them
that his family members had been killed.

Plaintiffs assert claims under the Alien Tort Statute, RICO,


government contracting laws, and the common law of
assault and battery, wrongful death, false imprisonment,
intentional infliction of emotional distress, conversion, and
negligence. The motion to dismiss generally asserts lack of
jurisdiction and failure to state a claim upon which relief can
be granted. Of particular interest are defendants
submissions that plaintiffs claims present non-justiciable
political questions, that the law of nations under the Alien
Tort Statute does not cover torture by non-state actors, and
that plaintiffs common law tort claims are preempted by the
government contractor defense.

JUDGE: ROBERTSON, District Judge.


Analysis
Plaintiffs sue seeking compensation from two private
government contractors for alleged acts of torture inflicted

11
Legal standard

A motion to dismiss for failure to state a claim under Rule


12(b)(6) will be granted only if it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief. Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint
will be construed in the light most favorable to the plaintiff,
and the plaintiff will have the benefit of all inferences that
can be derived from the facts alleged. Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994)
(internal citations omitted). On the other hand, a court may
accept neither inferences drawn by plaintiffs if such
inferences are unsupported by the facts set out in the
complaint, nor legal conclusions cast in the form of factual
allegations. Browning v. Clinton, 292 F.3d 235, 242
(D.C.Cir.2002) (quoting Kowal, 16 F.3d at 1275).

A motion to dismiss for lack of jurisdiction under Rule 12(b)


(1) is treated like a Rule 12(b)(6) motion. E.g., Barr v. Clinton,
370 F.3d 1196, 1199 (D.C.Cir.2004). To survive a Rule 12(b)
(1) motion, a plaintiff has the burden of establishing that
jurisdiction is proper. E.g., Macharia v. United States, 334
F.3d 61, 67-68 (D.C.Cir.2003).

Alien Tort Statute Claim

Plaintiffs assert that defendants violated the law of nations


as described in the Alien Tort Statute (ATS), 28 U.S.C. 1350.
The ATS provides: The district courts shall have original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the
United States. In Sosa v. Alvarez-Machain, 542 U.S. 692, 124
S.Ct. 2739, 159 L.Ed.2d 718 (2004), the Supreme Court
settled an old question by announcing that the ATS confers
jurisdiction but does not create a cause of action. The Sosa
decision also made it clear that, in limited circumstances,
aliens can look to the law of nations for a federal common
law cause of action. Id.

The ATS was first enacted as part of the Judiciary Act of


1789. The only violation[s] of the law of nations known at
that time were violation of safe conducts, infringement of
the rights of ambassadors, and piracy. Id. at 2761. New
claims may be recognized under common law principles, but
they must rest on a norm of international character
accepted by the civilized world and defined with a specificity
comparable to the features of the 18th-century paradigms
we have recognized. Id. at 2761-62. The Court in Sosa
discussed five factors counseling very great caution on this
front: 1) common law [*14] judges in the past were seen as
discovering law, but they are now seen as making or
creating law; 2) since Erie v. Tompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L.Ed. 1188 (1938), the role of federal common law

meikimouse
has been dramatically reduced, and courts have generally
looked for legislative guidance before taking innovative
measures; 3) creating private rights of action is generally
best left to the legislature; 4) decisions involving
international law may have collateral consequences that
impinge on the discretion of the legislative and executive
branches in managing foreign affairs; and 5) there is no
mandate from Congress encouraging judicial creativity in this
area, and in fact there are legislative hints in the opposite
direction. See id. at 2762-63.

Plaintiffs make reference to numerous treaties and other


sources of international law that strongly condemn torture.
Those authorities generally address official (state) torture,
and the question is whether the law of nations applies to
private actors like the defendants in the present case. The
Supreme Court has not answered that question, see id. at
2766 n. 20, but in the D.C. Circuit the answer is no. In TelOren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984),
cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377
(1985), victims of a 1978 terrorist attack in Israel sued a
number of parties, including several private organizations,
for violations of the law of nations under the ATS. A threejudge panel unanimously dismissed the case with three
separate opinions. Judge Edwards gave the ATS the broadest
reach, [FN1] generally agreeing with the Second Circuit s
landmark decision in Filartiga v. Pena-Irala, 630 F.2d 876 (2nd
Cir.1980), that acts of official torture violate the law of
nations. See Tel-Oren, 726 F.2d at 786-87, 791. However,
Judge Edwards found no consensus that private actors are
bound by the law of nations. Id. at 791-95. [FN2] The Court
of Appeals addressed the issue again only a year later in
Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C.Cir.1985), a
case involving allegations of execution, murder, abduction,
torture, rape, [and] wounding by the Nicaraguan Contras,
id. at 205, stating quite clearly that the law of nations does
not reach private, non-state conduct of this sort for the
reasons stated by Judge Edwards in Tel-Oren v. Libyan Arab
Republic, 726 F.2d at 791-96 (Edwards, J. concurring); see
also id. at 807 (Bork, J. concurring). id. at 206-207. [FN3]

FN1. Judge Bork essentially found that the ATS did not
provide a private right of action on its own, that the common
law allowed for at most the three types of law of nations
claims recognized in 1789, and that virtually no international
human rights law provided a private cause of action in
municipal courts. Tel-Oren, 726 F.2d at 799-823. Judge Robb
found the entire matter non-justiciable under the political
question doctrine. id. at 823-27.

FN2. Judge Edwards considered the historic claim of piracy to


be one of a limited number of exceptions to this principle,
but he would not add torture. Tel-Oren, 726 F.2d at 794-95.

FN3. In Tel-Oren, Judge Edwards noted that torture by private


parties acting under color of law, as compared to torture

12
by private parties acting separate from any states authority
or direction, would be actionable under the ATS. 726 F.2d at
793. For rather obvious reasons, however, these plaintiffs
disavow any assertion that the defendants were state actors,
Pls. Oppn to Def. CACI Mot. Dismiss at 15-16: if defendants
were acting as agents of the state, they would have
sovereign immunity under Sanchez-Espinoza. As then-Judge
Scalia noted in dicta, plaintiffs cannot allege that conduct is
state action for jurisdictional purposes but private action for
sovereign immunity purposes. See Sanchez-Espinoza, 770
F.2d at 207. Plaintiff Hadod asserted that defendants were
acting under the color of state authority, Pl. Hadod s
Proposed Supplemental Mem. L. at 7-8, but subsequently
withdrew his filing. This withdrawal eliminates the need to
determine whether there is any tension between the state
actor inquiry under the ATS and a similar inquiry under
preemption involving an affirmative government contractor
defense but not immunity. See infra.

[*15]
Plaintiffs
allegations describe conduct that is
abhorrent to civilized people, and surely actionable under a
number of common law theories. After Tel-Oren or SanchezEspinoza, however, it is not actionable under the Alien Tort
Statute s grant of jurisdiction, as a violation of the law of
nations.

Political Question Doctrine

Defendants
assertion that plaintiffs
claims are nonjusticiable because they implicate political questions is
rejected. The nonjusticiability of a political question is
primarily a function of the separation of powers. Baker v.
Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
The political question doctrine may lack clarity, see, e.g.,
Comm. of United States Citizens Living in Nicaragua v.
Reagan, 859 F.2d 929, 933 (D.C.Cir.1988), but it is not
without standards. At least one of following must be
inextricable from the case at bar to implicate the doctrine:

[1] a textually demonstrable constitutional commitment of


the issue to a coordinate political department; or [2] a lack of
judicially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court s undertaking
independent resolution without expressing lack of the
respect due coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a political
decision already made; or [6] the potentiality of
embarrassment from multifarious pronouncements by
various departments on one question.

Baker, 369 U.S. at 217, 82 S.Ct. 691; see also Vieth v.


Jubelirer, 541 U.S. 267, 277-78, 124 S.Ct. 1769, 158 L.Ed.2d

meikimouse
546 (2004) (citing the six Baker tests and noting that these
tests are probably listed in descending order of both
importance and certainty). Each case requires a
discriminating analysis of the particular question posed, in
terms of the history of its management by the political
branches, of its susceptibility to judicial handling in the light
of its nature and posture in the specific case, and of the
possible consequences of judicial action. Baker, 369 U.S. at
211-12, 82 S.Ct. 691.

The Constitution s allocation of war powers to the President


and Congress does not exclude the courts from every dispute
that can arguably be connected to combat, as the
Supreme Court s rejection of the government s separation of
powers argument in Hamdi v. Rumsfeld, 542 U.S. 507, 124
S.Ct. 2633, 2645-51, 159 L.Ed.2d 578 (2004), makes clear.
As the Ninth Circuit observed, in an action by heirs of
passengers of an Iranian civilian aircraft shot down by the
U.S. military during the Iran-Iraq war, the fact that an action
is taken in the ordinary exercise of discretion in the conduct
of war does not put it beyond the judicial power. Koohi v.
United States, 976 F.2d 1328, 1332 (9th Cir.1992) (quoting
and citing The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290,
44 L.Ed. 320 (1900), and citing other cases), cert. denied,
508 U.S. 960, 113 S.Ct. 2928, 124 L.Ed.2d 679 (1993). An
action for damages arising from the acts of private
contractors and not seeking injunctive relief does not involve
the courts in overseeing the conduct of foreign policy or the
use and disposition of military power. Luftig v. McNamara,
373 F.2d 664, 666 (D.C.Cir.1967).

[*16] Of course this case has some relationship to foreign


relations, but it is error to suppose that every case or
controversy which touches foreign relations lies beyond
judicial cognizance. Baker, 369 U.S. at 211, 82 S.Ct. 691;
see also Japan Whaling Assn v. Am. Cetacean Socy, 478
U.S. 221, 230-31, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)
(allowing lawsuit to force Secretary of Commerce to declare
Japan in violation of international whaling agreement);
Comm. of United States Citizens Living in Nicaragua, 859
F.2d 929 (D.C.Cir.1988) (finding troubling the district court
refusal to adjudicate claim of infringement of personal and
property rights of U.S. citizens resulting from U.S. funding of
Nicaraguan Contras). Nor does defendants effort to frame
this case as a standard matter of war reparations
successfully invoke the political question doctrine. Here,
unlike in many other reparations cases entangled with
political questions, there is no state-negotiated reparations
agreement competing for legitimacy with this court s rulings.
See, e.g., Am. Ins. Assn v. Garamendi, 539 U.S. 396, 413,
123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (California law on
Holocaust era claims conflicting with executive agreements
between U.S. and France, Austria, and Germany); Hwang
Geum Joo v. Japan, 413 F.3d 45 (D.C.Cir.2005) (former World
War II comfort women suing Japan despite prior diplomatic
settlement of claims against Japan). The facts of this case
are quite distinct from those found to implicate the political
question doctrine in Schneider v. Kissinger, 412 F.3d 190
(D.C.Cir.2005). There, in a matter intertwined with Cold War
decision-making, a former National Security Advisor and the

13
United States itself were sued for the alleged murder and
torture of a Chilean general in 1970. See id. The Court of
Appeals found that the case challenged foreign policy
decisions over which the courts have no authority. id. Here
plaintiffs sue private parties for actions of a type that both
violate clear United States policy, see First Am. Compl. at
24-28, and have led to recent high profile court martial
proceedings against United States soldiers.

Manageability problems may well emerge as the litigation in


this case proceeds, especially if discovery collides with
government claims to state secrecy. The government is not a
party, however, and I am not prepared to dismiss otherwise
valid claims at this early stage in anticipation of obstacles
that may or may not arise.

Preemption

Defendants assert that plaintiffs common law claims are


preempted under an extension of the government contractor
defense laid out in Boyle v. United Techs. Corp., 487 U.S.
500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), and expanded
by Koohi. Preemption in this sense means that, even if
plaintiffs serious common law allegations are true, there
may be no remedy for them, [FN4] and plaintiffs common
law [*17] claims may indeed ultimately be barred. The
government contractor defense is an affirmative defense,
however, and defendants have not produced sufficient
factual support to justify its application.

FN4. Defendants point to three alternative methods by which


plaintiffs might seek redress (although not from defendants
themselves): the Military Claims Act (providing compensation
for claims against the military), 10 U.S.C. 2733; the Foreign
Claims Act (samebut specifically for damage in foreign
countries), 10 U.S.C. 2734; and a very general pledge by
the Secretary of Defense to compensate detainees
mistreated at Abu Ghraib. Def. Titan Mot. Dismiss at 22-23.
The first two on their face are limited to noncombat
activities, which would make them inapplicable here if, as
defendants argue elsewhere, the activities in question here
were combat activities. At oral argument, plaintiffs insisted
that this court is the only forum in which compensation is
available to them. 4/21/05 Tr. at 41. Although the State
Department has also stated that relief may be available as
defendants describe, see U.S. Department of State, Second
Periodic Report of the United States of America to the
Committee Against Torture, Annex 1Part Two (May 6,
2005), http://www.state.gov/g/drl/rls/45738.htm - part_two,
the record does not establish that any of these routes is
actually viable, and my working assumption is that it is either
this court or nothing for plaintiffs.

meikimouse
In Boyle, the estate of a Marine helicopter pilot sued a
helicopter manufacturer for wrongful death caused by
alleged product defects. Boyle, 487 U.S. at 502-03, 108 S.Ct.
2510. The Supreme Court found Boyle s claims preempted as
a matter of judge-made federal common law. id. at 504-13,
108 S.Ct. 2510. The Court first determined that uniquely
federal interests were at stakethe rights and obligations of
the United States under its contracts, civil liability for actions
taken by federal officials in the course of their duty, and
federal procurement of equipment. id. at 504-07, 108 S.Ct.
2510. Then, the Court concluded that the application of state
law liability theory presented a significant conflict with
federal policies or interests, id. at 507-513, 108 S.Ct. 2510,
finding guidance in the discretionary function exception to
the Federal Tort Claims Act (FTCA). id. at 511-13, 108 S.Ct.
2510. The Court reasoned that if the helicopter s design was
a result of government policy decisions, even ones that
made trade-offs between safety and combat effectiveness,
liability should not be permitted. id. To ensure that the design
was a product of government discretionary decision-making,
the Court remanded for a determination as to whether: (1)
the
United
States
approved
reasonably
precise
specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United States
about the dangers in the use of the equipment that were
known to the supplier but not to the United States. id. at
512, 108 S.Ct. 2510.

Koohi extended Boyle to a case involving combatant


activities. The FTCA bars suits against the federal
government for any claim arising out of the combatant
activities of the military or naval forces, or the Coast Guard,
during time of war. 28 U.S.C. 2680(j). In Koohi, the court
looked to this combatant activities exception to the FTCA and
found that one purpose of the exception is to recognize that
during wartime encounters no duty of reasonable care is
owed to those against whom force is directed as a result of
authorized military action. Koohi, 976 F.2d at 1337. Thus,
guided by Boyle s reliance on the FTCA, the court found that
imposing liability on the civilian makers of a weapons system
used in an accidental shooting down of a civilian aircraft
would create a duty of care where the combatant activities
exception is intended to ensure that none exists. id.; see
also Bentzlin v. Hughes Aircraft Co., 833 F.Supp. 1486
(C.D.Cal.1993).

Defendants want me to expand Boyle s preemption analysis


beyond Koohi s negligence/product liability context to
automatically preempt any claims, including these
intentional tort claims, against contractors performing work
they consider to be combatant activities. This would be the
first time that Boyle has ever been applied in this manner.
Boyle explicitly declined to address the question of extending
federal immunity to non-government employees, Boyle, 487
U.S. at 505 n. 1, 108 S.Ct. 2510, and I will not extend that
immunity here. [FN5] Rather, preemption under [*18] the
government contractor defense is an affirmative defense,
with the burden of proof on the defendants. See id. at 51314, 108 S.Ct. 2510; Densberger v. United Techs. Corp., 297
F.3d 66, 75 (2nd Cir.2002), cert. denied, 537 U.S. 1147, 123

14

meikimouse

S.Ct. 876, 154 L.Ed.2d 849 (2003); Snell v. Bell Helicopter


Textron, Inc., 107 F.3d 744, 746 (9th Cir.1997).

FN5. Immunity involves not an affirmative defense that may


ultimately be put to the jury, but a decision by the court at
an early stage that the defendant is entitled to freedom from
suit in the first place. See Mitchell v. Forsyth, 472 U.S. 511,
523-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Under the first step of Boyle s analysis, I must agree that the
treatment of prisoners during wartime implicates uniquely
federal interests. For the second step, following Boyle and
Koohi, I will look to the FTCA for guidance on the question of
whether a suit here would produce a significant conflict
with federal policies or interests. In Boyle, the Court sought
to develop a common law rule that would prevent state tort
suits against contractors [that] would produce the same
effect sought to be avoided by the FTCA exemption. 487
U.S. at 511, 108 S.Ct. 2510. Especially because the
government will eventually end up paying for increased
liability through higher contracting prices (or through an
inability to find contractors willing to take on certain tasks),
the Boyle court noted, It makes little sense to insulate the
Government against financial liability for the judgment that a
particular feature of military equipment is necessary when
the Government produces the equipment itself, but not when
it contracts for the production. id. at 512, 108 S.Ct. 2510.
The inquiry then turns to whether allowing a suit to go
forward would conflict with the purposes of the FTCA and
whether defendants have shown that they were essentially
soldiers in all but name.

The legislative history for the FTCA s combatant activities


exception [FN6] is singularly barren, Johnson v. United
States, 170 F.2d 767, 769 (9th Cir.1948), and there is little
case law for guidance. The exception seems to represent
Congressional acknowledgment that war is an inherently
ugly business for which tort claims are simply inappropriate.
As the Supreme Court has explained in a different context,
It would be difficult to devise more effective fettering of a
field commander than to allow the very enemies he is
ordered to reduce to submission to call him to account in his
own civil courts and divert his efforts and attention from the
military offensive abroad to the legal defensive at home.
Johnson v. Eisentrager, 339 U.S. 763, 778, 70 S.Ct. 936, 94
L.Ed. 1255 (1950). State law regulation of combat activity
would present a significant conflict [*19] with this federal
interest in unfettered military action. This is true even with
regard to intentional torts, because exceptions to FTCA
represent Governmental activities which by their very
nature should be free from the hindrance of a possible
damage suit. Johnson v. United States, 170 F.2d at 769; see
also Koohi, 976 F.2d at 1335 (FTCA combatant activities
exception applies even to acts that are deliberate rather
than the result of error). Thus, we are brought again the
question of whether defendants employees were essentially
acting as soldiers.

FN6. Three other exceptions to the FTCA might theoretically


apply here. Defendants argue that the discretionary function
exception, 28 U.S.C. 2680(a), should apply. However, as
discussed supra, Boyle established a clear three-part test,
which defendants do not meet. The rationale behind the
foreign country exception, 28 U.S.C. 2680(k), appears to be
Congressional unwilling[ness] to subject the United States
to liabilities depending upon the laws of a foreign power.
United States v. Spelar, 338 U.S. 217, 221, 70 S.Ct. 10, 94
L.Ed. 3 (1949); Smith v. United States, 507 U.S. 197, 210,
113 S.Ct. 1178, 122 L.Ed.2d 548 (1993). This concern has
not been substantially discussed by either party, presents a
number of very complex issues, and is not appropriately
addressed without further briefing. The exception for
assault, battery, false imprisonment, false arrest, 28 U.S.C.
2680(h), and several other inapplicable intentional torts
might also apply here. However, the legislative history for
this exception has in the past been called sparse, United
States v. Shearer, 473 U.S. 52, 55, 105 S.Ct. 3039, 87
L.Ed.2d 38 (1985), and meagre, Panella v. United States,
216 F.2d 622, 625 (2nd Cir.1954) (Harlan, J.), the case law in
this area is equally lacking, and neither party has mentioned
this exception in briefs.

Defendants were employed by the U.S. military as


interrogators (CACI) and interpreters (Titan) in a prison in
Iraq where captured persons were detained. Defendants
assert that their employees were essentially on loan to the
military, 4/21/05 Tr. at 6, that these employees were
essentially integrated into the military hierarchy, id. at
29, and that the military s operational control over [these
employees was] total. Def. Titan Mot. Dismiss at 6. A
Statement of Work provided by Titan is consistent with the
notion that Titan s employees were soldiers in all but name,
although it also contains some language suggesting a
contrary conclusion. [FN7] (CACI has not provided a
statement of work.) Other than Titan s Statement of Work,
defendants
have produced nothing beyond limited
assertions to meet their factual burden of showing that they
are entitled to the government contractor defense. More
information is needed on what exactly defendants
employees were doing in Iraq. What were their contractual
responsibilities? To whom did they report? How were they
supervised? What were the structures of command and
control? If they were indeed soldiers in all but name, the
government contractor defense will succeed, but the burden
is on defendants to show that they are entitled to
preemption.

FN7. For example, while contractors must adhere to the


standards of conduct established by the operational or unit
commander, Titan Statement of Work at C-1.8.4, they also
shall not wear any identification badge or tags that
identifies them as an employee of the United States
Government. id. at C-1.9.2.

15
Full discovery is not appropriate at this stage, especially
given the potential for time-consuming disputes involving
state secrets. Since limited additional facts are needed, a
motion for summary judgment is the right vehicle to address
the issue of preemption. I will entertain such a motion from
defendants, complete with whatever supporting material
they believe sufficient. If appropriate, plaintiffs will then of
course be entitled to file a Rule 56(f) affidavit, and we will
address any discovery at that point. [FN8]

FN8. I note that Al Rawi v. Titan Corporation (05-cv-1165) has


just been transferred to this Court and deals with
substantially the same issues as the present case. I will be
setting a status conference for all parties in both that case
and this case, at which time I will set a briefing schedule for
motions in both cases.

meikimouse
involves the U.S. military and not defendants. As to false
imprisonment, plaintiffs initially assert in their complaint
that they were forcibly detained under United States
custody in Iraq, First Am. Compl. at 1, and that they were
detained, interrogated, and physically abused by the
Defendants and/or others while under the custody and
control of the Defendants, e.g., id. at 32. Those plaintiffs
providing information on their arrests, however, all indicate
that they were arrested by U.S. or Iraqi authorities, not
defendants. See First Am. Compl. at 31, 36, 40, 49, 54.
Plaintiffs have not responded to CACI s observation that the
complaint appears to implicate only the United States, and
not defendants, in their detention, Def. CACI Mot. Dismiss at
44-45, except to say that they intend to amend the
Amended Complaint when additional facts are discovered
with regard to their claim[ ] for false imprisonment. Pls.
Oppn to Def. CACI s Mot. Dismiss at 32 n. 10. If, and when,
plaintiffs have a justifiable basis on which to implicate these
defendants in their false imprisonment and conversion
claims, they may seek leave to amend their complaint.

RICO Claim
Plaintiffs claims under RICO could be dismissed for a
number of reasons, but it is sufficient to note here that
plaintiffs do not have standing. A plaintiff seeking RICO
standing must allege damage to business or property. 18
U.S.C. 1964(c). Allegations of personal injuries alone are
not sufficient. Burnett v. Al Baraka Inv. & Dev. Corp., 274
F.Supp.2d 86, 100-02 (D.D.C.2003). Plaintiffs allege that U.S.
Military forces seized $400 and a weapon from plaintiff
Hadod, First Am. Compl. at 40, but plaintiffs counsel
concede that they can allege no acts involving defendants
that go beyond personal injury. [*20] Pls. Oppn to Def.
Titan s Mot. Dismiss at 27-28.

Government Contracting Law Claim

Plaintiffs
claims under various laws regulating U.S.
government contracts must be dismissed. First, plaintiffs do
not attempt to challenge defendants assertion that these
laws provide no private right of action. Second, insofar as
plaintiffs attempt in their opposition to somehow restyle this
portion of their complaint as presenting a claim for
equitable relief through RICO, see, e.g., Pls. Oppn to Def.
Titan s Mot. Dismiss at 31-33, I need only note that I am
dismissing plaintiffs RICO claims. Finally, plaintiffs have
failed to join an indispensable party (the United States) in
this claim. See Fed.R.Civ.P. 12(b)(7), 19.

Diversity and Minimum Amount

Jurisdiction for plaintiffs common law claims is based on 28


U.S.C. 1332. That statute does not confer jurisdiction over
suits by a group consisting of only foreign persons against
another foreign person. 28 U.S.C. 1332(a). As plaintiffs are
aliens, their claims against defendant CACI N.V., which is
incorporated in the Netherlands, must be dismissed. See
JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure
Ltd., 536 U.S. 88, 91, 122 S.Ct. 2054, 153 L.Ed.2d 95 (2002)
(entities incorporated in foreign countries are foreign citizens
for purposes of diversity analysis). [FN9] As to plaintiffs
failure to allege at least $75,000 in damages, 28 U.S.C.
1332(a), I find that it is in the interest of justice to allow an
amendment.
FN9. At oral argument, counsel for CACI stated that CACI
N.V. was not involved in the interrogator contracts in
question here. 4/21/05 Tr. at 26. Further, counsel indicated
that a CACI company not named in the suit provided
interrogators to the military. id.

* * * * * * An appropriate order accompanies this


memorandum.
SUPREME COURT OF THE UNITED STATES
BOUMEDIENE ET AL. V. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL.

False Imprisonment and Conversion Claims

Although most of plaintiffs common law claims may proceed


as provided above, the false imprisonment and conversion
claims will be dismissed. As discussed above, the only
factual allegation that could conceivably support conversion

CERTIORARI TO THE UNITED STATES COURT OF


APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

16
NO. 061195.ARGUED DECEMBER 5, 2007DECIDED
JUNE 12, 2008**
In the Authorization for Use of Military Force (AUMF),
Congress empowered the President to use all necessary and
appropriate force against those he determines planned,
authorized, committed, or aided the terrorist attacks on
September 11, 2001. In Hamdi v. Rumsfeld, 542 U. S. 507 ,
five Justices recognized that detaining individuals captured
while fighting against the United States in Afghanistan for
the duration of that conflict was a fundamental and accepted
incident to war. Thereafter, the Defense Department
established Combatant Status Review Tribunals (CSRTs) to
determine whether individuals detained at the U. S. Naval
Station at Guantanamo Bay, Cuba, were enemy
combatants.

Petitioners are aliens detained at Guantanamo after


being captured in Afghanistan or elsewhere abroad and
designated enemy combatants by CSRTs. Denying
membership in the al Qaeda terrorist network that carried
out the September 11 attacks and the Taliban regime that
supported al Qaeda, each petitioner sought a writ of habeas
corpus in the District Court, which ordered the cases
dismissed for lack of jurisdiction because Guantanamo is
outside sovereign U. S. territory. The D. C. Circuit affirmed,
but this Court reversed, holding that 28 U. S. C. 2241
extended statutory habeas jurisdiction to Guantanamo. See
Rasul v. Bush, 542 U. S. 466 . Petitioners cases were then
consolidated into two proceedings. In the first, the district
judge granted the Governments motion to dismiss, holding
that the detainees had no rights that could be vindicated in a
habeas action. In the second, the judge held that the
detainees had due process rights.

While appeals were pending, Congress passed the


Detainee Treatment Act of 2005 (DTA), 1005(e) of which
amended 28 U. S. C. 2241 to provide that no court, justice,
or judge shall have jurisdiction to consider an
application for habeas corpus filed by or on behalf of an
alien detained at Guantanamo, and gave the D. C. Court
of Appeals exclusive jurisdiction to review CSRT decisions.
In Hamdan v. Rumsfeld, 548 U. S. 557 , the Court held this
provision inapplicable to cases (like petitioners) pending
when the DTA was enacted. Congress responded with the
Military Commissions Act of 2006 (MCA), 7(a) of which
amended 2241(e)(1) to deny jurisdiction with respect to
habeas actions by detained aliens determined to be enemy
combatants, while 2241(e)(2) denies jurisdiction as to any
other action against the United States relating to any
aspect of the detention, transfer, treatment, trial, or
conditions of confinement of a detained alien determined to
be an enemy combatant. MCA 7(b) provides that the
2241(e) amendments shall take effect on the date of the
enactment of this Act, and shall apply to all cases, without
exception, pending on or after [that] date which relate to
any aspect of the detention, transfer, treatment, trial, or
conditions of detention of an alien detained since
September 11, 2001.

meikimouse
The D. C. Court of Appeals concluded that MCA 7 must
be read to strip from it, and all federal courts, jurisdiction to
consider petitioners habeas applications; that petitioners are
not entitled to habeas or the protections of the Suspension
Clause, U. S. Const., Art. I, 9, cl. 2, which provides that
[t]he Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it; and that it was therefore
unnecessary to consider whether the DTA provided an
adequate and effective substitute for habeas.

Held:

1. MCA 7 denies the federal courts jurisdiction to hear


habeas actions, like the instant cases, that were pending at
the time of its enactment. Section 7(b)s effective date
provision undoubtedly applies to habeas actions, which, by
definition, relate to detention within that sections
meaning. Petitioners argue to no avail that 7(b) does not
apply to a 2241(e)(1) habeas action, but only to any other
action under 2241(e)(2), because it largely repeats that
sections language. The phrase other action in 2241(e)(2)
cannot be understood without referring back to 2241(e)(1),
which explicitly mentions the writ of habeas corpus.
Because the two paragraphs structure implies that habeas is
a type of action relating to any aspect of detention, etc.,
pending habeas actions are in the category of cases subject
to the statutes jurisdictional bar. This is confirmed by the
MCAs legislative history. Thus, if MCA 7 is valid, petitioners
cases must be dismissed. Pp. 58.

2. Petitioners have the constitutional privilege of habeas


corpus. They are not barred from seeking the writ or invoking
the Suspension Clauses protections because they have been
designated as enemy combatants or because of their
presence at Guantanamo. Pp. 841.

(a) A brief account of the writs history and origins


shows that protection for the habeas privilege was one of the
few safeguards of liberty specified in a Constitution that, at
the outset, had no Bill of Rights; in the system the Framers
conceived, the writ has a centrality that must inform proper
interpretation of the Suspension Clause. That the Framers
considered the writ a vital instrument for the protection of
individual liberty is evident from the care taken in the
Suspension Clause to specify the limited grounds for its
suspension: The writ may be suspended only when public
safety requires it in times of rebellion or invasion. The Clause
is designed to protect against cyclical abuses of the writ by
the Executive and Legislative Branches. It protects detainee
rights by a means consistent with the Constitutions essential
design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the
writ, to maintain the delicate balance of governance.
Hamdi, supra, at 536. Separation-of-powers principles, and
the history that influenced their design, inform the Clauses
reach and purpose. Pp. 815.

17
(b) A diligent search of founding-era precedents and
legal commentaries reveals no certain conclusions. None of
the cases the parties cite reveal whether a common-law
court would have granted, or refused to hear for lack of
jurisdiction, a habeas petition by a prisoner deemed an
enemy combatant, under a standard like the Defense
Departments in these cases, and when held in a territory,
like Guantanamo, over which the Government has total
military and civil control. The evidence as to the writs
geographic scope at common law is informative, but, again,
not dispositive. Petitioners argue that the site of their
detention is analogous to two territories outside England to
which the common-law writ ran, the exempt jurisdictions and
India, but critical differences between these places and
Guantanamo render these claims unpersuasive. The
Government argues that Guantanamo is more closely
analogous to Scotland and Hanover, where the writ did not
run, but it is unclear whether the common-law courts lacked
the power to issue the writ there, or whether they refrained
from doing so for prudential reasons. The parties arguments
that the very lack of a precedent on point supports their
respective positions are premised upon the doubtful
assumptions that the historical record is complete and that
the common law, if properly understood, yields a definite
answer to the questions before the Court. Pp. 1522.

(c) The Suspension Clause has full effect at


Guantanamo. The Governments argument that the Clause
affords petitioners no rights because the United States does
not claim sovereignty over the naval station is rejected. Pp.
2242.

(i) The Court does not question the Governments


position that Cuba maintains sovereignty, in the legal and
technical sense, over Guantanamo, but it does not accept
the Governments premise that de jure sovereignty is the
touchstone of habeas jurisdiction. Common-law habeas
history provides scant support for this proposition, and it is
inconsistent with the Courts precedents and contrary to
fundamental separation-of-powers principles. Pp. 2225.

(ii) Discussions of the Constitutions extraterritorial


application in cases involving provisions other than the
Suspension Clause undermine the Governments argument.
Fundamental
questions
regarding
the
Constitutions
geographic scope first arose when the Nation acquired
Hawaii and the noncontiguous Territories ceded by Spain
after the Spanish-American War, and Congress discontinued
its prior practice of extending constitutional rights to
territories by statute. In the so-called Insular Cases, the
Court held that the Constitution had independent force in the
territories that was not contingent upon acts of legislative
grace. See, e.g., Dorr v. United States, 195 U. S. 138 . Yet
because of the difficulties and disruption inherent in
transforming the former Spanish colonies civil-law system
into an Anglo-American system, the Court adopted the
doctrine of territorial incorporation, under which the

meikimouse
Constitution applies in full in incorporated Territories surely
destined for statehood but only in part in unincorporated
Territories. See, e.g., id., at 143. Practical considerations
likewise influenced the Courts analysis in Reid v. Covert, 354
U. S. 1 , where, in applying the jury provisions of the Fifth
and Sixth Amendment s to American civilians being tried by
the U. S. military abroad, both the plurality and the
concurrences
noted
the
relevance
of
practical
considerations, related not to the petitioners citizenship, but
to the place of their confinement and trial. Finally, in
holdingthat habeas jurisdiction did not extend to enemy
aliens, convicted of violating the laws of war, who were
detained in a German prison during the Allied Powers postWorld War II occupation, the Court, in Johnson v. Eisentrager,
339 U. S. 763 , stressed the practical difficulties of ordering
the production of the prisoners, id., at 779. The
Governments reading of Eisentrager as adopting a
formalistic test for determining the Suspension Clauses
reach is rejected because: (1) the discussion of practical
considerations in that case was integral to a part of the
Courts opinion that came before it announced its holding,
see id., at 781; (2) it mentioned the concept of territorial
sovereignty only twice in its opinion, in contrast to its
significant discussion of practical barriers to the running of
the writ; and (3) if the Governments reading were correct,
the opinion would have marked not only a change in, but a
complete repudiation of, the Insular Cases (and later Reids)
functional approach. A constricted reading of Eisentrager
overlooks what the Court sees as a common thread uniting
all these cases: The idea that extraterritoriality questions
turn on objective factors and practical concerns, not
formalism. Pp. 2534.

(iii) The Governments sovereignty-based test raises


troubling
separation-of-powers
concerns,
which
are
illustrated by Guantanamos political history. Although the
United States has maintained complete and uninterrupted
control of Guantanamo for over 100 years, the Governments
view is that the Constitution has no effect there, at least as
to noncitizens, because the United States disclaimed formal
sovereignty in its 1903 lease with Cuba. The Nations basic
charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire,
dispose of, and govern territory, not the power to decide
when and where its terms apply. To hold that the political
branches may switch the Constitution on or off at will would
lead to a regime in which they, not this Court, say what the
law is. Marbury v. Madison, 1 Cranch 137, 177. These
concerns have particular bearing upon the Suspension
Clause question here, for the habeas writ is itself an
indispensable mechanism for monitoring the separation of
powers. Pp. 3436.

(iv) Based on Eisentrager, supra, at 777, and the


Courts reasoning in its other extraterritoriality opinions, at
least three factors are relevant in determining the
Suspension Clauses reach: (1) the detainees citizenship and
status and the adequacy of the process through which that
status was determined; (2) the nature of the sites where
apprehension and then detention took place; and (3) the

18
practical obstacles inherent in resolving the prisoners
entitlement to the writ. Application of this framework
reveals, first, that petitioners status is in dispute: They are
not American citizens, but deny they are enemy combatants;
and although they have been afforded some process in CSRT
proceedings, there has been no Eisentragerstyle trial by
military commission for violations of the laws of war. Second,
while the sites of petitioners apprehension and detention
weigh against finding they have Suspension Clause rights,
there are critical differences between Eisentragers German
prison, circa 1950, and the Guantanamo Naval Station in
2008, given the Governments absolute and indefinite control
over the naval station. Third, although the Court is sensitive
to the financial and administrative costs of holding the
Suspension Clause applicable in a case of military detention
abroad, these factors are not dispositive because the
Government presents no credible arguments that the military
mission at Guantanamo would be compromised if habeas
courts had jurisdiction. The situation in Eisentrager was far
different, given the historical context and nature of the
militarys mission in post-War Germany. Pp. 3641.

(d) Petitioners are therefore entitled to the habeas


privilege, and if that privilege is to be denied them, Congress
must act in accordance with the Suspension Clauses
requirements. Cf. Rasul, 542 U. S., at 564. Pp. 4142.

3. Because the DTAs procedures for reviewing detainees


status are not an adequate and effective substitute for the
habeas writ, MCA 7 operates as an unconstitutional
suspension of the writ. Pp. 4264.

(a) Given its holding that the writ does not run to
petitioners, the D. C. Circuit found it unnecessary to consider
whether there was an adequate substitute for habeas. This
Court usually remands for consideration of questions not
decided below, but departure from this rule is appropriate in
exceptional circumstances, see, e.g., Cooper Industries,
Inc. v. Aviall Services, Inc., 543 U. S. 157 , here, the grave
separation-of-powers issues raised by these cases and the
fact that petitioners have been denied meaningful access to
a judicial forum for years. Pp. 4244.

(b) Historically, Congress has taken care to avoid


suspensions of the writ. For example, the statutes at issue in
the Courts two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 , and United States v.
Hayman, 342 U. S. 205 , were attempts to streamline habeas
relief, not to cut it back. Those cases provide little guidance
here because, inter alia, the statutes in question gave the
courts broad remedial powers to secure the historic office of
the writ, and included saving clauses to preserve habeas
review as an avenue of last resort. In contrast, Congress
intended the DTA and the MCA to circumscribe habeas
review, as is evident from the unequivocal nature of MCA
7s jurisdiction-stripping language, from the DTAs text
limiting the Court of Appeals jurisdiction to assessing

meikimouse
whether the CSRT complied with the standards and
procedures specified by the Secretary of Defense, DTA
1005(e)(2)(C), and from the absence of a saving clause in
either Act. That Congress intended to create a more limited
procedure is also confirmed by the legislative history and by
a comparison of the DTA and the habeas statute that would
govern in MCA 7s absence, 28 U. S. C. 2241. In 2241,
Congress authorized any justice or circuit judge to issue
the writ, thereby accommodating the necessity for
factfinding that will arise in some cases by allowing the
appellate judge or Justice to transfer the case to a district
court. See 2241(b). However, by granting the D. C. Circuit
exclusive jurisdiction over petitioners cases, see DTA
1005(e)(2)(A), Congress has foreclosed that option in these
cases. Pp. 4449.

(c) This Court does not endeavor to offer a


comprehensive summary of the requisites for an adequate
habeas substitute. It is uncontroversial, however, that the
habeas privilege entitles the prisoner to a meaningful
opportunity to demonstrate that he is being held pursuant to
the erroneous application or interpretation of relevant law,
INS v. St. Cyr, 533 U. S. 289 , and the habeas court must
have the power to order the conditional release of an
individual unlawfully detained. But more may be required
depending on the circumstances. Petitioners identify what
they see as myriad deficiencies in the CSRTs, the most
relevant being the constraints upon the detainees ability to
rebut the factual basis for the Governments assertion that
he is an enemy combatant. At the CSRT stage the detainee
has limited means to find or present evidence to challenge
the Governments case, does not have the assistance of
counsel, and may not be aware of the most critical
allegations that the Government relied upon to order his
detention. His opportunity to confront witnesses is likely to
be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with
petitioners that there is considerable risk of error in the
tribunals findings of fact. And given that the consequence of
error may be detention for the duration of hostilities that
may last a generation or more, the risk is too significant to
ignore. Accordingly, for the habeas writ, or its substitute, to
function as an effective and meaningful remedy in this
context, the court conducting the collateral proceeding must
have some ability to correct any errors, to assess the
sufficiency of the Governments evidence, and to admit and
consider relevant exculpatory evidence that was not
introduced during the earlier proceeding. In re Yamashita,
327 U. S. 1 , and Ex parte Quirin, 317 U. S. 1 , distinguished.
Pp. 4957.

(d) Petitioners have met their burden of establishing


that the DTA review process is, on its face, an inadequate
substitute for habeas. Among the constitutional infirmities
from which the DTA potentially suffers are the absence of
provisions allowing petitioners to challenge the Presidents
authority under the AUMF to detain them indefinitely, to
contest the CSRTs findings of fact, to supplement the record
on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute

19
cannot be read to contain each of these constitutionally
required procedures. MCA 7 thus effects an unconstitutional
suspension of the writ. There is no jurisdictional bar to the
District Courts entertaining petitioners claims. Pp. 5764.

4. Nor are there prudential barriers to habeas review. Pp.


6470.

(a) Petitioners need not seek review of their CSRT


determinations in the D. C. Circuit before proceeding with
their habeas actions in the District Court. If these cases
involved detainees held for only a short time while awaiting
their CSRT determinations, or were it probable that the Court
of Appeals could complete a prompt review of their
applications, the case for requiring temporary abstention or
exhaustion of alternative remedies would be much stronger.
But these qualifications no longer pertain here. In some
instances six years have elapsed without the judicial
oversight that habeas corpus or an adequate substitute
demands. To require these detainees to pursue the limited
structure of DTA review before proceeding with habeas
actions would be to require additional months, if not years, of
delay. This holding should not be read to imply that a habeas
court should intervene the moment an enemy combatant
steps foot in a territory where the writ runs. Except in cases
of undue delay, such as the present, federal courts should
refrain from entertaining an enemy combatants habeas
petition at least until after the CSRT has had a chance to
review his status. Pp. 6467.

(b) In effectuating todays holding, certain


accommodationsincluding channeling future cases to a
single district court and requiring that court to use its
discretion to accommodate to the greatest extent possible
the Governments legitimate interest in protecting sources
and intelligence gathering methodsshould be made to
reduce the burden habeas proceedings will place on the
military, without impermissibly diluting the writs protections.
Pp. 6768.

5. In considering both the procedural and substantive


standards used to impose detention to prevent acts of
terrorism, the courts must accord proper deference to the
political branches. However, security subsists, too, in fidelity
to freedoms first principles, chief among them being
freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the
separation of powers. Pp. 6870.

476 F. 3d 981, reversed and remanded.

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G.R. NO. 162230

APRIL 28, 2010

ISABELITA C. VINUYA, VICTORIA C. DELA PEA,


HERMINIHILDA MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG,
MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M.
NAVARO,
FRANCISCA
M.
ATENCIO,
ERLINDA
MANALASTAS, TARCILA M. SAMPANG, ESTER M.
PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM,
FELICIDAD TURLA, FLORENCIA M. DELA PEA,
EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA
SANGUYO, ANA ALONZO, RUFINA P. MALLARI,
ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B.
MANALUS, CORAZON C. CALMA, MARTA A. GULAPA,
TEODORA M. HERNANDEZ, FERMIN B. DELA PEA,
MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL,
JUANITA M. BRIONES, VERGINIA M. GUEVARRA,
MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R.
PUNZALAN, JANUARIA G. GARCIA, PERLA B. BALINGIT,
BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C.
BUCO, GAUDENCIA C. DELA PEA, RUFINA Q.
CATACUTAN,
FRANCIA
A.
BUCO,
PASTORA
C.
GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O.
DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M.
SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ,
ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA
H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT,
JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M.
BANGIT,
GUILLERMA
S.
BALINGIT,
TERECITA
PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C.
GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA,
LEONICIA G. GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L.
TURLA, ET AL. IN THEIR CAPACITY AND AS MEMBERS
OF
THE
"MALAYA
LOLAS
ORGANIZATION",
PETITIONERS,
VS.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G.
ROMULO, THE HONORABLE SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE
SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ,
AND THE HONORABLE SOLICITOR GENERAL ALFREDO
L. BENIPAYO, RESPONDENTS.

DECISION

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future


claims such as those asserted by plaintiffs in these actions,
exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And while
full compensation for plaintiffs' hardships, in the purely
economic sense, has been denied these former prisoners and
countless other survivors of the war, the immeasurable
bounty of life for themselves and their posterity in a free
society and in a more peaceful world services the debt.1

20
There is a broad range of vitally important areas that must
be regularly decided by the Executive Department without
either challenge or interference by the Judiciary. One such
area involves the delicate arena of foreign relations. It would
be strange indeed if the courts and the executive spoke with
different voices in the realm of foreign policy. Precisely
because of the nature of the questions presented, and the
lapse of more than 60 years since the conduct complained
of, we make no attempt to lay down general guidelines
covering other situations not involved here, and confine the
opinion only to the very questions necessary to reach a
decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the


Rules of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the
Executive Secretary, the Secretary of the Department of
Foreign Affairs (DFA), the Secretary of the Department of
Justice (DOJ), and the Office of the Solicitor General (OSG).

Petitioners are all members of the MALAYA LOLAS, a nonstock, non-profit organization registered with the Securities
and Exchange Commission, established for the purpose of
providing aid to the victims of rape by Japanese military
forces in the Philippines during the Second World
War.ten.lihpwal

Petitioners narrate that during the Second World War, the


Japanese army attacked villages and systematically raped
the women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned,
and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women
and held them in houses or cells, where they were
repeatedly raped, beaten, and abused by Japanese soldiers.
As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured
physical injuries, pain and disability, and mental and
emotional suffering.2

Petitioners claim that since 1998, they have approached the


Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese
officials and military officers who ordered the establishment
of the "comfort women" stations in the Philippines. However,
officials of the Executive Department declined to assist the
petitioners, and took the position that the individual claims
of the comfort women for compensation had already been
fully satisfied by Japans compliance with the Peace Treaty
between the Philippines and Japan.

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Issues

Hence, this petition where petitioners pray for this court to


(a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in
refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b)
compel the respondents to espouse their claims for official
apology and other forms of reparations against Japan before
the International Court of Justice (ICJ) and other international
tribunals.

Petitioners arguments

Petitioners argue that the general waiver of claims made by


the Philippine government in the Treaty of Peace with Japan
is void. They claim that the comfort women system
established by Japan, and the brutal rape and enslavement
of petitioners constituted a crime against humanity,3 sexual
slavery,4 and torture.5 They allege that the prohibition
against these international crimes is jus cogens norms from
which no derogation is possible; as such, in waiving the
claims of Filipina comfort women and failing to espouse their
complaints against Japan, the Philippine government is in
breach of its legal obligation not to afford impunity for crimes
against humanity. Finally, petitioners assert that the
Philippine governments acceptance of the "apologies" made
by Japan as well as funds from the Asian Womens Fund
(AWF) were contrary to international law.

Respondents Arguments

Respondents maintain that all claims of the Philippines and


its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.6

Article 14 of the Treaty of Peace7 provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the


Allied Powers for the damage and suffering caused by it
during the war. 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.

21
b) 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.

In addition, respondents argue that the apologies made by


Japan8 have been satisfactory, and that Japan had addressed
the individual claims of the women through the atonement
money paid by the Asian Womens Fund.1avvphi1

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Efforts to Secure Reparation

The most prominent attempts to compel the Japanese


government to accept legal responsibility and pay
compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations
(UN), resolutions by various nations, and the Womens
International Criminal Tribunal. The Japanese government, in
turn, responded through a series of public apologies and the
creation of the AWF.19

Lawsuits
Historical Background

The comfort women system was the tragic legacy of the


Rape of Nanking. In December 1937, Japanese military forces
captured the city of Nanking in China and began a "barbaric
campaign of terror" known as the Rape of Nanking, which
included the rapes and murders of an estimated 20,000 to
80,000 Chinese women, including young girls, pregnant
mothers, and elderly women.9 Document1zzF24331552898

In reaction to international outcry over the incident, the


Japanese government sought ways to end international
condemnation10 by establishing the "comfort women"
system. Under this system, the military could simultaneously
appease soldiers' sexual appetites and contain soldiers'
activities within a regulated environment.11 Comfort stations
would also prevent the spread of venereal disease among
soldiers and discourage soldiers from raping inhabitants of
occupied territories.12

Daily life as a comfort woman was "unmitigated misery."13


The military forced victims into barracks-style stations
divided into tiny cubicles where they were forced to live,
sleep, and have sex with as many 30 soldiers per day.14 The
30 minutes allotted for sexual relations with each soldier
were 30-minute increments of unimaginable horror for the
women.15 Disease was rampant.16 Military doctors regularly
examined the women, but these checks were carried out to
prevent the spread of venereal diseases; little notice was
taken of the frequent cigarette burns, bruises, bayonet stabs
and even broken bones inflicted on the women by soldiers.
Document1zzF48331552898

Fewer than 30% of the women survived the war.17 Their


agony continued in having to suffer with the residual
physical, psychological, and emotional scars from their
former lives. Some returned home and were ostracized by
their families. Some committed suicide. Others, out of
shame, never returned home.18

In December 1991, Kim Hak-Sun and two other survivors


filed the first lawsuit in Japan by former comfort women
against the Japanese government. The Tokyo District Court
however dismissed their case.20 Other suits followed,21 but
the Japanese government has, thus far, successfully caused
the dismissal of every case.22

Undoubtedly frustrated by the failure of litigation before


Japanese courts, victims of the comfort women system
brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action
lawsuit in the US District Court for the District of Columbia23
"seeking money damages for [allegedly] having been
subjected to sexual slavery and torture before and during
World War II," in violation of "both positive and customary
international law." The case was filed pursuant to the Alien
Tort Claims Act ("ATCA"),24 which allowed the plaintiffs to
sue the Japanese government in a US federal district
court.25 On October 4, 2001, the district court dismissed the
lawsuit due to lack of jurisdiction over Japan, stating that
"[t]here is no question that this court is not the appropriate
forum in which plaintiffs may seek to reopen x x x
discussions nearly half a century later x x x [E]ven if Japan
did not enjoy sovereign immunity, plaintiffs' claims are nonjusticiable and must be dismissed."

The District of Columbia Court of Appeals affirmed the lower


court's dismissal of the case.26 On appeal, the US Supreme
Court granted the womens petition for writ of certiorari,
vacated the judgment of the District of Columbia Court of
Appeals, and remanded the case.27 On remand, the Court of
Appeals affirmed its prior decision, noting that "much as we
may feel for the plight of the appellants, the courts of the US
simply are not authorized to hear their case."28 The women
again brought their case to the US Supreme Court which
denied their petition for writ of certiorari on February 21,
2006.

22

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Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for


Military Sexual Slavery by Japan (KCWS), submitted a petition
to the UN Human Rights Commission (UNHRC), asking for
assistance in investigating crimes committed by Japan
against Korean women and seeking reparations for former
comfort women.29 The UNHRC placed the issue on its
agenda and appointed Radhika Coomaraswamy as the
issue's special investigator. In 1996, Coomaraswamy issued
a Report reaffirming Japan's responsibility in forcing Korean
women to act as sex slaves for the imperial army, and made
the following recommendations:

A. At the national level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up


by the Japanese Imperial Army during the Second World War
was a violation of its obligations under international law and
accept legal responsibility for that violation;

(b) Pay compensation to individual victims of Japanese


military sexual slavery according to principles outlined by the
Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the right to
restitution, compensation and rehabilitation for victims of
grave violations of human rights and fundamental freedoms.
A special administrative tribunal for this purpose should be
set up with a limited time-frame since many of the victims
are of a very advanced age;

(c) Make a full disclosure of documents and materials in its


possession with regard to comfort stations and other related
activities of the Japanese Imperial Army during the Second
World War;

(d) Make a public apology in writing to individual women who


have come forward and can be substantiated as women
victims of Japanese military sexual slavery;

(e) Raise awareness of these issues by amending educational


curricula to reflect historical realities;

(f) Identify and punish, as far as possible, perpetrators


involved in the recruitment and institutionalization of comfort
stations during the Second World War.

Gay J. McDougal, the Special Rapporteur for the UN SubCommission on Prevention of Discrimination and Protection
of Minorities, also presented a report to the Sub-Committee
on June 22, 1998 entitled Contemporary Forms of Slavery:
Systematic Rape, Sexual Slavery and Slavery-like Practices
During Armed Conflict. The report included an appendix
entitled An Analysis of the Legal Liability of the Government
of Japan for 'Comfort Women Stations' established during the
Second World War,30 which contained the following findings:

68. The present report concludes that the Japanese


Government remains liable for grave violations of human
rights and humanitarian law, violations that amount in their
totality to crimes against humanity. The Japanese
Governments arguments to the contrary, including
arguments that seek to attack the underlying humanitarian
law prohibition of enslavement and rape, remain as
unpersuasive today as they were when they were first raised
before the Nuremberg war crimes tribunal more than 50
years ago. In addition, the Japanese Governments argument
that Japan has already settled all claims from the Second
World War through peace treaties and reparations
agreements following the war remains equally unpersuasive.
This is due, in large part, to the failure until very recently of
the Japanese Government to admit the extent of the
Japanese militarys direct involvement in the establishment
and maintenance of these rape centres. The Japanese
Governments silence on this point during the period in which
peace and reparations agreements between Japan and other
Asian Governments were being negotiated following the end
of the war must, as a matter of law and justice, preclude
Japan from relying today on these peace treaties to
extinguish liability in these cases.

69. The failure to settle these claims more than half a


century after the cessation of hostilities is a testament to the
degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a sexual
nature committed on a massive scale during the Second
World War has added to the level of impunity with which
similar crimes are committed today. The Government of
Japan has taken some steps to apologize and atone for the
rape and enslavement of over 200,000 women and girls who
were brutalized in "comfort stations" during the Second
World War. However, anything less than full and unqualified
acceptance by the Government of Japan of legal liability and
the consequences that flow from such liability is wholly
inadequate. It must now fall to the Government of Japan to
take the necessary final steps to provide adequate redress.

The UN, since then, has not taken any official action directing
Japan to provide the reparations sought.

Women's International War Crimes

23
Tribunal

The Women's International War Crimes Tribunal (WIWCT) was


a "people's tribunal" established by a number of Asian
women and human rights organizations, supported by an
international coalition of non-governmental organizations.31
First proposed in 1998, the WIWCT convened in Tokyo in
2000 in order to "adjudicate Japan's military sexual violence,
in particular the enslavement of comfort women, to bring
those responsible for it to justice, and to end the ongoing
cycle of impunity for wartime sexual violence against
women."

After examining the evidence for more than a year, the


"tribunal" issued its verdict on December 4, 2001, finding the
former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of
women.32 It bears stressing, however, that although the
tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself was
organized by private citizens.

Action by Individual Governments

On January 31, 2007, US Representative Michael Honda of


California, along with six co-sponsor representatives,
introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former
comfort women. The Resolution was formally passed on July
30, 2007,33 and made four distinct demands:

[I]t is the sense of the House of Representatives that the


Government of Japan (1) should formally acknowledge,
apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces' coercion
of young women into sexual slavery, known to the world as
"comfort women", during its colonial and wartime occupation
of Asia and the Pacific Islands from the 1930s through the
duration of World War II; (2) would help to resolve recurring
questions about the sincerity and status of prior statements
if the Prime Minister of Japan were to make such an apology
as a public statement in his official capacity; (3) should
clearly and publicly refute any claims that the sexual
enslavement and trafficking of the "comfort women" for the
Japanese Imperial Army never occurred; and (4) should
educate current and future generations about this horrible
crime while following the recommendations of the
international community with respect to the "comfort
women."34

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In December 2007, the European Parliament, the governing
body of the European Union, drafted a resolution similar to
House Resolution 121.35 Entitled, "Justice for Comfort
Women," the resolution demanded: (1) a formal
acknowledgment of responsibility by the Japanese
government; (2) a removal of the legal obstacles preventing
compensation; and (3) unabridged education of the past. The
resolution also stressed the urgency with which Japan should
act on these issues, stating: "the right of individuals to claim
reparations against the government should be expressly
recognized in national law, and cases for reparations for the
survivors of sexual slavery, as a crime under international
law, should be prioritized, taking into account the age of the
survivors."

The Canadian and Dutch parliaments have each followed suit


in drafting resolutions against Japan. Canada's resolution
demands the Japanese government to issue a formal
apology, to admit that its Imperial Military coerced or forced
hundreds of thousands of women into sexual slavery, and to
restore references in Japanese textbooks to its war crimes.36
The Dutch parliament's resolution calls for the Japanese
government to uphold the 1993 declaration of remorse made
by Chief Cabinet Secretary Yohei Kono.

The Foreign Affairs Committee of the United Kingdoms


Parliament also produced a report in November, 2008
entitled, "Global Security: Japan and Korea" which concluded
that Japan should acknowledge the pain caused by the issue
of comfort women in order to ensure cooperation between
Japan and Korea.

Statements of Remorse made by representatives of the


Japanese government

Various officials of the Government of Japan have issued the


following public statements concerning the comfort system:

a) Statement by the Chief Cabinet Secretary Yohei Kono in


1993:

The Government of Japan has been conducting a study on


the issue of wartime "comfort women" since December
1991. I wish to announce the findings as a result of that
study.

As a result of the study which indicates that comfort stations


were operated in extensive areas for long periods, it is
apparent that there existed a great number of comfort
women. Comfort stations were operated in response to the
request of the military authorities of the day. The then
Japanese military was, directly or indirectly, involved in the

24
establishment and management of the comfort stations and
the transfer of comfort women. The recruitment of the
comfort women was conducted mainly by private recruiters
who acted in response to the request of the military. The
Government study has revealed that in many cases they
were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military
personnel directly took part in the recruitments. They lived in
misery at comfort stations under a coercive atmosphere.

As to the origin of those comfort women who were


transferred to the war areas, excluding those from Japan,
those from the Korean Peninsula accounted for a large part.
The Korean Peninsula was under Japanese rule in those days,
and their recruitment, transfer, control, etc., were conducted
generally against their will, through coaxing, coercion, etc.

Undeniably, this was an act, with the involvement of the


military authorities of the day, that severely injured the
honor and dignity of many women. The Government of Japan
would like to take this opportunity once again to extend its
sincere apologies and remorse to all those, irrespective of
place of origin, who suffered immeasurable pain and
incurable physical and psychological wounds as comfort
women.

It is incumbent upon us, the Government of Japan, to


continue to consider seriously, while listening to the views of
learned circles, how best we can express this sentiment.

We shall face squarely the historical facts as described above


instead of evading them, and take them to heart as lessons
of history. We hereby reiterated our firm determination never
to repeat the same mistake by forever engraving such issues
in our memories through the study and teaching of history.

As actions have been brought to court in Japan and interests


have been shown in this issue outside Japan, the
Government of Japan shall continue to pay full attention to
this matter, including private researched related thereto.

b) Prime Minister Tomiichi Murayamas Statement in 1994

On the issue of wartime "comfort women", which seriously


stained the honor and dignity of many women, I would like to
take this opportunity once again to express my profound and
sincere remorse and apologies"

c) Letters from the Prime Minister of Japan to Individual


Comfort Women

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The issue of comfort women, with the involvement of the


Japanese military authorities at that time, was a grave
affront to the honor and dignity of a large number of women.

As Prime Minister of Japan, I thus extend anew my most


sincere apologies and remorse to all the women who
endured immeasurable and painful experiences and suffered
incurable physical and psychological wounds as comfort
women.

I believe that our country, painfully aware of its moral


responsibilities, with feelings of apology and remorse, should
face up squarely to its past history and accurately convey it
to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995


and 2005

Solemnly reflecting upon the many instances of colonial rule


and acts of aggression that occurred in modern world history,
and recognizing that Japan carried out such acts in the past
and inflicted suffering on the people of other countries,
especially in Asia, the Members of this House hereby express
deep remorse. (Resolution of the House of Representatives
adopted on June 9, 1995)

e) Various Public Statements by Japanese Prime Minister


Shinzo Abe

I have talked about this matter in the Diet sessions last year,
and recently as well, and to the press. I have been
consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing
sincerely to those who suffered immeasurable pain and
incurable psychological wounds as comfort women. Former
Prime Ministers, including Prime Ministers Koizumi and
Hashimoto, have issued letters to the comfort women. I
would like to be clear that I carry the same feeling. This has
not changed even slightly. (Excerpt from Remarks by Prime
Minister Abe at an Interview by NHK, March 11, 2007).

I am apologizing here and now. I am apologizing as the Prime


Minister and it is as stated in the statement by the Chief
Cabinet Secretary Kono. (Excerpt from Remarks by Prime
Minister Abe at the Budget Committee, the House of
Councilors, the Diet of Japan, March 26, 2007).

25
I am deeply sympathetic to the former comfort women who
suffered hardships, and I have expressed my apologies for
the extremely agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference by Prime
Minister Abe to President George W. Bush, April 3, 2007).

I have to express sympathy from the bottom of my heart to


those people who were taken as wartime comfort women. As
a human being, I would like to express my sympathies, and
also as prime minister of Japan I need to apologize to them.
My administration has been saying all along that we continue
to stand by the Kono Statement. We feel responsible for
having forced these women to go through that hardship and
pain as comfort women under the circumstances at the time.
(Excerpt from an interview article "A Conversation with
Shinzo Abe" by the Washington Post, April 22, 2007).

x x x both personally and as Prime Minister of Japan, my


heart goes out in sympathy to all those who suffered
extreme hardships as comfort women; and I expressed my
apologies for the fact that they were forced to endure such
extreme and harsh conditions. Human rights are violated in
many parts of the world during the 20th Century; therefore
we must work to make the 21st Century a wonderful century
in which no human rights are violated. And the Government
of Japan and I wish to make significant contributions to that
end. (Excerpt from Prime Minister Abe's remarks at the Joint
Press Availability after the summit meeting at Camp David
between Prime Minister Abe and President Bush, April 27,
2007).

The Asian Women's Fund

Established by the Japanese government in 1995, the AWF


represented the government's concrete attempt to address
its moral responsibility by offering monetary compensation
to victims of the comfort women system.37 The purpose of
the AWF was to show atonement of the Japanese people
through expressions of apology and remorse to the former
wartime comfort women, to restore their honor, and to
demonstrate Japans strong respect for women.38

The AWF announced three programs for former comfort


women who applied for assistance: (1) an atonement fund
paying 2 million (approximately $20,000) to each woman;
(2) medical and welfare support programs, paying 2.5-3
million ($25,000-$30,000) for each woman; and (3) a letter
of apology from the Japanese Prime Minister to each woman.
Funding for the program came from the Japanese
government and private donations from the Japanese people.
As of March 2006, the AWF provided 700 million
(approximately $7 million) for these programs in South
Korea, Taiwan, and the Philippines; 380 million
(approximately $3.8 million) in Indonesia; and 242 million
(approximately $2.4 million) in the Netherlands.

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On January 15, 1997, the AWF and the Philippine government


signed a Memorandum of Understanding for medical and
welfare support programs for former comfort women. Over
the next five years, these were implemented by the
Department of Social Welfare and Development.

Our Ruling

Stripped down to its essentials, the issue in this case is


whether the Executive Department committed grave abuse
of discretion in not espousing petitioners claims for official
apology and other forms of reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the Executive Department


has the exclusive prerogative to determine whether to
espouse petitioners claims against Japan.

Baker v. Carr39 remains the starting point for analysis under


the political question doctrine. There the US Supreme Court
explained that:

x x x Prominent on the surface of any case held to involve a


political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of
deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a
court's
undertaking
independent
resolution
without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality
of
embarrassment
from
multifarious
pronouncements by various departments on question.

In Taada v. Cuenco,40 we held that political questions refer


"to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure."

Certain types of cases often have been found to present


political questions.41 One such category involves questions
of foreign relations. It is well-established that "[t]he conduct

26
of the foreign relations of our government is committed by
the Constitution to the executive and legislative--'the
political'--departments of the government, and the propriety
of what may be done in the exercise of this political power is
not subject to judicial inquiry or decision."42 The US
Supreme Court has further cautioned that decisions relating
to foreign policy

are delicate, complex, and involve large elements of


prophecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility.43

To be sure, not all cases implicating foreign relations present


political questions, and courts certainly possess the authority
to
construe
or
invalidate
treaties
and
executive
agreements.44 However, the question whether the Philippine
government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In
this case, the Executive Department has already decided
that it is to the best interest of the country to waive all
claims of its nationals for reparations against Japan in the
Treaty of Peace of 1951. The wisdom of such decision is not
for the courts to question. Neither could petitioners herein
assail the said determination by the Executive Department
via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp.,45


the US Supreme Court held that "[t]he President is the sole
organ of the nation in its external relations, and its sole
representative with foreign relations."

It is quite apparent that if, in the maintenance of our


international relations, embarrassment -- perhaps serious
embarrassment -- is to be avoided and success for our aims
achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the
international field must often accord to the President a
degree of discretion and freedom from statutory restriction
which would not be admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war.
He has his confidential sources of information. He has his
agents in the form of diplomatic, consular and other officials.
xxx

This ruling has been incorporated in our jurisprudence


through Bayan v. Executive Secretary46 and Pimentel v.
Executive Secretary;47 its overreaching principle was,
perhaps, best articulated in (now Chief) Justice Punos
dissent in Secretary of Justice v. Lantion:48

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x x x The conduct of foreign relations is full of complexities


and consequences, sometimes with life and death
significance to the nation especially in times of war. It can
only be entrusted to that department of government which
can act on the basis of the best available information and
can decide with decisiveness. x x x It is also the President
who possesses the most comprehensive and the most
confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited
access to ultra-sensitive military intelligence data. In fine,
the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity,
nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture
of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.

The Executive Department has determined that taking up


petitioners cause would be inimical to our countrys foreign
policy interests, and could disrupt our relations with Japan,
thereby creating serious implications for stability in this
region. For us to overturn the Executive Departments
determination would mean an assessment of the foreign
policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally
committed.

In any event, it cannot reasonably be maintained that the


Philippine government was without authority to negotiate the
Treaty of Peace with Japan. And it is equally true that, since
time immemorial, when negotiating peace accords and
settling international claims:

x x x [g]overnments have dealt with x x x private claims as


their own, treating them as national assets, and as counters,
`chips', in international bargaining. Settlement agreements
have lumped, or linked, claims deriving from private debts
with others that were intergovernmental in origin, and
concessions in regard to one category of claims might be set
off against concessions in the other, or against larger
political considerations unrelated to debts.49

Indeed, except as an agreement might otherwise provide,


international settlements generally wipe out the underlying
private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,50 a case brought by a
British subject to recover a debt confiscated by the
Commonwealth of Virginia during the war, Justice Chase
wrote:

27
I apprehend that the treaty of peace abolishes the subject of
the war, and that after peace is concluded, neither the
matter in dispute, nor the conduct of either party, during the
war, can ever be revived, or brought into contest again. All
violences, injuries, or damages sustained by the
government, or people of either, during the war, are buried
in oblivion; and all those things are implied by the very
treaty of peace; and therefore not necessary to be
expressed. Hence it follows, that the restitution of, or
compensation
for,
British
property
confiscated,
or
extinguished, during the war, by any of the United States,
could only be provided for by the treaty of peace; and if
there had been no provision, respecting these subjects, in
the treaty, they could not be agitated after the treaty, by the
British government, much less by her subjects in courts of
justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is


certainly nothing new. For instance, in Dames & Moore v.
Regan,51 the US Supreme Court held:

Not infrequently in affairs between nations, outstanding


claims by nationals of one country against the government of
another country are "sources of friction" between the two
sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.
552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties,
nations have often entered into agreements settling the
claims of their respective nationals. As one treatise writer
puts it, international agreements settling claims by nationals
of one state against the government of another "are
established international practice reflecting traditional
international theory." L. Henkin, Foreign Affairs and the
Constitution 262 (1972). Consistent with that principle, the
United States has repeatedly exercised its sovereign
authority to settle the claims of its nationals against foreign
countries. x x x Under such agreements, the President has
agreed to renounce or extinguish claims of United States
nationals against foreign governments in return for lumpsum payments or the establishment of arbitration
procedures. To be sure, many of these settlements were
encouraged by the United States claimants themselves,
since a claimant's only hope of obtaining any payment at all
might lie in having his Government negotiate a diplomatic
settlement on his behalf. But it is also undisputed that the
"United States has sometimes disposed of the claims of its
citizens without their consent, or even without consultation
with them, usually without exclusive regard for their
interests, as distinguished from those of the nation as a
whole." Henkin, supra, at 262-263. Accord, Restatement
(Second) of Foreign Relations Law of the United States 213
(1965) (President "may waive or settle a claim against a
foreign state x x x [even] without the consent of the [injured]
national"). It is clear that the practice of settling claims
continues today.

Respondents explain that the Allied Powers concluded the


Peace Treaty with Japan not necessarily for the complete
atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations,

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but for security purposes. The treaty sought to prevent the
spread of communism in Japan, which occupied a strategic
position in the Far East. Thus, the Peace Treaty compromised
individual claims in the collective interest of the free world.

This was also the finding in a similar case involving American


victims of Japanese slave labor during the war.52 In a
consolidated case in the Northern District of California,53 the
court dismissed the lawsuits filed, relying on the 1951 peace
treaty with Japan,54 because of the following policy
considerations:

The official record of treaty negotiations establishes that a


fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the possibility
of future claims would be an unacceptable impediment to a
lasting peace:

Reparation is usually the most controversial aspect of


peacemaking. The present peace is no exception.

On the one hand, there are claims both vast and just. Japan's
aggression caused tremendous cost, losses and suffering.

On the other hand, to meet these claims, there stands a


Japan presently reduced to four home islands which are
unable to produce the food its people need to live, or the raw
materials they need to work. x x x

The policy of the United States that Japanese liability for


reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of
the Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished
nation and with a view to reparations payments. It soon
became clear that Japan's financial condition would render
any aggressive reparations plan an exercise in futility.
Meanwhile, the importance of a stable, democratic Japan as
a bulwark to communism in the region increased. At the end
of 1948, MacArthur expressed the view that "[t]he use of
reparations as a weapon to retard the reconstruction of a
viable economy in Japan should be combated with all
possible means" and "recommended that the reparations
issue be settled finally and without delay."

That this policy was embodied in the treaty is clear not only
from the negotiations history but also from the Senate
Foreign Relations Committee report recommending approval

28

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of the treaty by the Senate. The committee noted, for


example:

than the legal merits of the particular claim.57 As clearly


stated by the ICJ in

Obviously insistence upon the payment of reparations in any


proportion commensurate with the claims of the injured
countries and their nationals would wreck Japan's economy,
dissipate any credit that it may possess at present, destroy
the initiative of its people, and create misery and chaos in
which the seeds of discontent and communism would
flourish. In short, [it] would be contrary to the basic purposes
and policy of x x x the United States x x x.

Barcelona Traction:

We thus hold that, from a municipal law perspective, that


certiorari will not lie. As a general principle and particularly
here, where such an extraordinary length of time has lapsed
between the treatys conclusion and our consideration the
Executive must be given ample discretion to assess the
foreign policy considerations of espousing a claim against
Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that
basis if apologies are sufficient, and whether further steps
are appropriate or necessary.

The Philippines is not under any international obligation to


espouse petitioners claims.

In the international sphere, traditionally, the only means


available for individuals to bring a claim within the
international legal system has been when the individual is
able to persuade a government to bring a claim on the
individuals behalf.55 Even then, it is not the individuals
rights that are being asserted, but rather, the states own
rights. Nowhere is this position more clearly reflected than in
the dictum of the Permanent Court of International Justice
(PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting


to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own right to
ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the
present dispute originates in an injury to a private interest,
which in point of fact is the case in many international
disputes, is irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is
sole claimant.56

Since the exercise of diplomatic protection is the right of the


State, reliance on the right is within the absolute discretion
of states, and the decision whether to exercise the discretion
may invariably be influenced by political considerations other

The Court would here observe that, within the limits


prescribed by international law, a State may exercise
diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is
asserting. Should the natural or legal person on whose behalf
it is acting consider that their rights are not adequately
protected, they have no remedy in international law. All they
can do is resort to national law, if means are available, with a
view to furthering their cause or obtaining redress. The
municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the
national a right to demand the performance of that
obligation, and clothe the right with corresponding
sanctions.1awwphi1 However, all these questions remain
within the province of municipal law and do not affect the
position internationally.58 (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its


protection will be granted, to what extent it is granted, and
when will it cease. It retains, in this respect, a discretionary
power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the
particular case.

The International Law Commissions (ILCs) Draft Articles on


Diplomatic Protection fully support this traditional view. They
(i) state that "the right of diplomatic protection belongs to or
vests in the State,"59 (ii) affirm its discretionary nature by
clarifying that diplomatic protection is a "sovereign
prerogative" of the State;60 and (iii) stress that the state
"has the right to exercise diplomatic protection

on behalf of a national. It is under no duty or obligation to do


so."61

It has been argued, as petitioners argue now, that the State


has a duty to protect its nationals and act on his/her behalf
when rights are injured.62 However, at present, there is no
sufficient evidence to establish a general international
obligation for States to exercise diplomatic protection of their
own nationals abroad.63 Though, perhaps desirable, neither
state practice nor opinio juris has evolved in such a direction.
If it is a duty internationally, it is only a moral and not a legal
duty, and there is no means of enforcing its
fulfillment.641avvphi1

29
We fully agree that rape, sexual slavery, torture, and sexual
violence are morally reprehensible as well as legally
prohibited
under
contemporary
international
law.65
However, petitioners take quite a theoretical leap in claiming
that these proscriptions automatically imply that that the
Philippines is under a non-derogable obligation to prosecute
international crimes, particularly since petitioners do not
demand the imputation of individual criminal liability, but
seek to recover monetary reparations from the state of
Japan. Absent the consent of states, an applicable treaty
regime, or a directive by the Security Council, there is no
non-derogable duty to institute proceedings against Japan.
Indeed, precisely because of states reluctance to directly
prosecute claims against another state, recent developments
support the modern trend to empower individuals to directly
participate in suits against perpetrators of international
crimes.66 Nonetheless, notwithstanding an array of General
Assembly resolutions calling for the prosecution of crimes
against humanity and the strong policy arguments
warranting such a rule, the practice of states does not yet
support the present existence of an obligation to prosecute
international crimes.67 Of course a customary duty of
prosecution is ideal, but we cannot find enough evidence to
reasonably assert its existence. To the extent that any state
practice in this area is widespread, it is in the practice of
granting amnesties, immunity, selective prosecution, or de
facto impunity to those who commit crimes against
humanity."68

Even the invocation of jus cogens norms and erga omnes


obligations will not alter this analysis. Even if we sidestep the
question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes
committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or
that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status
of jus cogens.

The term erga omnes (Latin: in relation to everyone) in


international law has been used as a legal term describing
obligations owed by States towards the community of states
as a whole. The concept was recognized by the ICJ in
Barcelona Traction:

x x x an essential distinction should be drawn between the


obligations of a State towards the international community
as a whole, and those arising vis--vis another State in the
field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the
importance of the rights involved, all States can be held to
have a legal interest in their protection; they are obligations
erga omnes.http://www.search.com/reference/Erga_omnes _note-0#_note-0

Such obligations derive, for example, in contemporary


international law, from the outlawing of acts of aggression,

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and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of
the corresponding rights of protection have entered into the
body of general international law others are conferred by
international instruments of a universal or quasi-universal
character.

The Latin phrase, erga omnes, has since become one of the
rallying cries of those sharing a belief in the emergence of a
value-based international public order. However, as is so
often the case, the reality is neither so clear nor so bright.
Whatever the relevance of obligations erga omnes as a legal
concept, its full potential remains to be realized in
practice.69

The term is closely connected with the international law


concept of jus cogens. In international law, the term "jus
cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general
international norms of equivalent authority.70

Early strains of the jus cogens doctrine have existed since


the 1700s,71 but peremptory norms began to attract greater
scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in
International Law.72 The recognition of jus cogens gained
even more force in the 1950s and 1960s with the ILCs
preparation of the Vienna Convention on the Law of Treaties
(VCLT).73 Though there was a consensus that certain
international norms had attained the status of jus cogens,74
the ILC was unable to reach a consensus on the proper
criteria for identifying peremptory norms.

After an extended debate over these and other theories of


jus cogens, the ILC concluded ruefully in 1963 that "there is
not as yet any generally accepted criterion by which to
identify a general rule of international law as having the
character of jus cogens."75 In a commentary accompanying
the draft convention, the ILC indicated that "the prudent
course seems to be to x x x leave the full content of this rule
to be worked out in State practice and in the jurisprudence of
international tribunals."76 Thus, while the existence of jus
cogens in international law is undisputed, no consensus
exists on its substance,77 beyond a tiny core of principles
and rules.78

Of course, we greatly sympathize with the cause of


petitioners, and we cannot begin to comprehend the
unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply concerned that, in
apparent contravention of fundamental principles of law, the

30
petitioners appear to be without a remedy to challenge those
that have offended them before appropriate fora. Needless
to say, our government should take the lead in protecting its
citizens against violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive
Department to take up the petitioners cause. Ours is only
the power to urge and exhort the Executive Department to
take up petitioners cause.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.

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31
United States Court of Appeals,Ninth Circuit.
VAZKEN MOVSESIAN; HARRY ARZOUMANIAN; GARO
AYALTIN;
MIRAN
KHAGERIAN;
ARA
KHAJERIAN,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED INCLUDING THOUSANDS OF
SENIOR CITIZENS, DISABLED PERSONS, AND ORPHANS
AS WELL AS ON BEHALF OF THE GENERAL PUBLIC AND
ACTING IN THE PUBLIC INTEREST, PLAINTIFFSAPPELLEES, V. VICTORIA VERSICHERUNG AG, A
GERMAN
CORPORATION;
ERGO
VERSICHERUNGSGRUPPE
AG,
A
GERMAN
CORPORATION,
DEFENDANTS,
MUNCHENER
RUCKVERSICHERUNGSGESELLSCHAFT
AKTIENGESELLSCHAFT AG, A GERMAN CORPORATION,
DEFENDANT-APPELLANT.
NO. 07-56722.
DECIDED: DECEMBER 10, 2010
Before HARRY PREGERSON, DOROTHY W. NELSON and DAVID
R. THOMPSON, Circuit Judges. Neil Michael Soltman, Los
Angeles, CA, for the defendant/appellant. Brian S. Kabateck,
Los Angeles, CA, for the plaintiffs/appellees.
ORDER AND OPINION
ORDER
Judge Pregerson and Judge Nelson vote to grant the petition
for rehearing and Judge Thompson votes to deny the petition
for rehearing. The petition for rehearing is GRANTED.
The opinion and dissent filed on August 20, 2009, are hereby
withdrawn. The opinion and dissent attached to this order
are hereby filed.
New petitions for rehearing and rehearing en banc may be
filed.
OPINION
Section 354.4 of the California Code of Civil Procedure
extends the statute of limitations until 2010 for claims
arising out of life insurance policies issued to Armenian
Genocide victim[s]. Cal.Civ.Proc.Code 354.4(c) (West
2006). The primary issue in this appeal is whether 354.4
conflicts with a clear, express federal executive policy. We
conclude that there is no express federal policy forbidding
states to use the term Armenian Genocide, and we affirm
the district court.
I. Background
In 2000, the California Legislature enacted Senate Bill 1915,
which amended California's Code of Civil Procedure1 to
provide California courts with jurisdiction over certain classes
of claims arising out of insurance policies held by Armenian
Genocide vitcim[s]. Sen. Bill No.1915 (1999-2000 Reg.
Sess.), 2000 Cal. Legis. Serv. 543 (West 2000), codified at
Cal.Civ.Proc.Code 354.4. The Bill also amended the Code to
extend the statute of limitations for such claims until
December 31, 2010. Id. Section 354.4, in its entirety,
provides:

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(a) The following definitions govern the construction of this
section:
(1) Armenian Genocide victim means any person of
Armenian or other ancestry living in the Ottoman Empire
during the period of 1915 to 1923, inclusive, who died, was
deported, or escaped to avoid persecution during that
period.
(2) Insurer means an insurance provider doing business in
the state, or whose contacts in the state satisfy the
constitutional requirements for jurisdiction, that sold life,
property, liability, health, annuities, dowry, educational,
casualty, or any other insurance covering persons or
property to persons in Europe or Asia at any time between
1875 and 1923.
(b) Notwithstanding any other provision of law, any Armenian
Genocide victim, or heir or beneficiary of an Armenian
Genocide victim, who resides in this state and has a claim
arising out of an insurance policy or policies purchased or in
effect in Europe or Asia between 1875 and 1923 from an
insurer described in paragraph (2) of subdivision (a), may
bring a legal action or may continue a pending legal action to
recover on that claim in any court of competent jurisdiction
in this state, which court shall be deemed the proper forum
for that action until its completion or resolution.
(c) Any action, including any pending action brought by an
Armenian Genocide victim or the heir or beneficiary of an
Armenian Genocide victim, whether a resident or
nonresident of this state, seeking benefits under the
insurance policies issued or in effect between 1875 and 1923
shall not be dismissed for failure to comply with the
applicable statute of limitation, provided the action is filed on
or before December 31, 2010.
(d) The provisions of this section are severable. If any
provision of this section or its application is held invalid, that
invalidity shall not affect other provisions or applications that
can be given effect without the invalid provision or
application.

In the legislative findings accompanying the statute, the


Legislature recognized that:
[D]uring the period from 1915 to 1923, many persons of
Armenian ancestry residing in the historic Armenian
homeland then situated in the Ottoman Empire were victims
of massacre, torture, starvation, death marches, and exile.
This period is known as the Armenian Genocide.
Sen. Bill No.1915 at 1.
In December 2003, Vazken Movsesian (Movsesian) filed
this class action against Victoria Versicherung AG
(Victoria), Ergo Versicherungsgruppe AG (Ergo), and
Munchener
Ruckversicherungs-Gesellschaft
Aktiengesellschaft AG (Munich Re). Movsesian and his
fellow class members are persons of Armenian descent who
claim benefits from insurance policies issued by Victoria and
Ergo. Munich Re is the parent company of Victoria and Ergo.
Movsesian seeks damages from all three companies for

32
breach of written contract, breach of the covenant of good
faith and fair dealing, unjust enrichment, and other related
claims. Munich Re filed a Rule 12(b)(6) motion to dismiss the
claims, arguing that the class members lacked standing to
bring claims under 354.4, and contending that it was not a
proper defendant under 354.4. Munich Re also challenged
the constitutionality of 354.4, on the grounds that it
violated the due process clause of the United States
Constitution and was preempted under the foreign affairs
doctrine.
The district court granted Munich Re's motion to dismiss the
claims for unjust enrichment and constructive trust, and
denied Munich Re's motion to dismiss the claims for breach
of contract and breach of the covenant of fair dealing. The
court held that the class members had standing to bring
their claims, and that Munich Re was a proper defendant
under 354.4. The court rejected Munich Re's due process
challenge, and held that 354.4 was not preempted under
the foreign affairs doctrine.
Munich Re filed a motion to certify the district court's order
for interlocutory appeal, and to stay the action pending
appeal. The district court granted the motion, and stayed the
case. Within the ten-day window provided by 28 U.S.C.
1292(b), Munich Re petitioned this court for permission to
pursue an interlocutory appeal, which we granted.2
On appeal, the parties address three issues: first, whether
354 .4 is preempted under the foreign affairs doctrine;
second, whether Munich Re is a proper defendant; and third,
whether the Plaintiff-Appellees have standing to bring these
claims.3 We address each issue in turn.
II. Standard of Review
We review de novo a district court's grant of a Rule 12(b)(6)
motion to dismiss. Edwards v. Marin Park, Inc., 356 F.3d
1058, 1061 (9th Cir.2004). When ruling on a motion to
dismiss, we accept all factual allegations in the complaint as
true and construe the pleadings in the light most favorable
to the nonmoving party. Knievel v. ESPN, 393 F.3d 1068,
1072 (9th Cir.2005).
III. The Constitutionality of 354.4 Under the Foreign Affairs
Doctrine
This case presents the issue of whether 354.4 of the
California Code of Civil Procedure is preempted under the
foreign affairs doctrine. Munich Re contends that 354.4 is
preempted in two ways: first, that it conflicts with the
Executive Branch's policy prohibiting legislative recognition
of an Armenian Genocide; and second, that it is preempted
by the Claims Agreement of 1922 (the Claims Agreement)
and the War Claims Act of 1928 (the War Claims Act). We
conclude that there is no clear federal policy with respect to
references to the Armenian Genocide, and, therefore, that
there can be no conflict. We also conclude that neither the
Claims Agreement nor the War Claims Act, which resolved
World War I-related claims between the United States and
Germany, has any application to life insurance policies
issued to citizens of the Ottoman Empire between 1915 and
1923.
A. Conflict Preemption

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It is well settled that at some point an exercise of state
power that touches on foreign relations must yield to the
National Government's policy. Am. Ins. Assoc. v. Garamendi,
539 U.S. 396, 413 (2003). Nor is there any question
generally that there is executive authority to decide what
that policy should be. Id. at 414. However, not every
executive action or pronouncement constitutes a proper
invocation of that potentially preemptive policy-making
power. See Medellin v. Texas, 552 U.S 491, 531-32 (2008)
(limiting preemptive effect of informal presidential
communications where Congress has not implicitly approved
such authority). Garamendi established that executive
agreements do carry policy-making force, at least where
Congress has historically acquiesced to such executive
practices. See Garamendi, 539 U.S. at 415; Medellin, 552 U.S
491 at 531-32. In Garamendi, the Court found that several
executive agreements, coupled with statements from
executive branch officials, constituted an express federal
policy. Garamendi, 539 U.S. at 415. Here, in contrast, there is
no executive agreement regarding use of the term Armenian
Genocide.
Instead, Munich Re points to informal presidential
communications as the sole source of a clear, express
federal policy against use of the term Armenian Genocide.
For example, in 2000, House Resolution 596 proposed to
recognize the Ottoman Empire's atrocities against the
Armenians between 1915 and 1923. H.R. Res. 596, 106th
Cong. (2000). President Clinton and senior administration
officials sent letters to the House, suggesting that Resolution
596 would negatively impact United States interests in the
Balkans and Middle East. Letter to the Speaker of the House
of Representatives on a Resolution on Armenian Genocide, 3
Pub. Papers 2225-26 (Oct. 19, 2000); H.R.Rep. No. 106-933,
at 16-19 (2000). Resolution 596 was never brought to a floor
vote.
In 2003, a proposed general resolution reaffirm[ed] support
of the Convention on the Prevention and Punishment of the
Crime of Genocide and used the term Armenian Genocide.
H.R. Res. 193, 108th Cong. (2003). A State Department
official opposed the resolution, arguing that it would hamper
peace efforts in the Caucasus. H.R.Rep. No. 108-130, at 5-6
(2003). The resolution never reached the House floor.
In 2007, the House entertained another resolution that would
provide official recognition to an Armenian Genocide.
House Resolution 106 was nearly indistinguishable from
House Resolution 596, discussed above. President Bush
opposed Resolution 106, to which he referred as the
Armenian genocide resolution, on the ground that it would
negatively affect the war on terror. Remarks on Intelligence
Reform Legislation, 43 Weekly Comp. Pres. Doc. 1320
(Oct.10, 2007). The House never brought Resolution 106 to
the floor for a vote.
Munich Re argues that these communications are sufficient
to constitute an express federal policy. They are not. The
three cited executive branch communications arguing
against recognition of the Armenian Genocide are
counterbalanced, if not outweighed, by various statements
from the federal executive and legislative branches in favor
of such recognition.

33
Despite its occasional reluctance to officially recognize the
Armenian Genocide, the House of Representatives has done
so in the past. In 1975, the House observed a day of
remembrance for all victims of genocide, especially those of
Armenian ancestry. H.J. Res. 148, 94th Congress (1975). In
1984, the House similarly recognized victims of genocide,
especially the one and one-half million people of Armenian
ancestry. H.J. Res. 247, 98th Congress (1984).
The Executive Branch has repeatedly used terms virtually
indistinguishable from Armenian Genocide. In 1998,
President Clinton publicly commemorated the deportations
and massacres of a million and a half Armenians in the
Ottoman Empire in the years 1915-1923. 1 Pub. Papers 617
(Apr. 24, 1998). In 1981, President Reagan explicitly stated
that like the genocide of the Armenians before it, and the
genocide of the Cambodians, which followed it-and like too
many other persecutions of too many other people-the
lessons of the Holocaust must never be forgotten.
Proclamation
4838
(Apr.
22,
1981)
available
at
http://www.reagan
.utexas.edu/archives/speeches/1981/42281c.htm (emphasis
added).
The current administration has also at times favored
recognition of the Armenian Genocide. In the midst of his
campaign for the presidency, then-Senator Obama asserted
in a Senate floor statement that [i]t is imperative that we
recognize the horrific acts carried out against the Armenian
people as genocide. See, e.g., 110th Cong. Rec. S3438-01
(Apr. 28, 2008). Since taking office, President Obama has
issued additional statements that seem to support
recognition of the Armenian Genocide. In 2009, for example,
President Obama publicly remembered the 1.5 million
Armenians who were [ ] massacred or marched to their death
in the final days of the Ottoman Empire. The Meds Yeghern
must live on in our memories, just as it lives on in the hearts
of the Armenian people. See Statement of President Barack
Obama on Armenian Remembrance Day, http://www.
whitehouse.gov/the_press_office/Statement-of-PresidentBarackObama-on-Armenian-Remembrance-Day/
(last
accessed August 13, 2010). Meds Yeghern is the term for
Armenian Genocide in the Armenian language.
We also note that while some forty states recognize the
Armenian Genocide, the federal government has never
expressed any opposition to any such recognition. See, e.g.,
Mich. Comp. Laws 435.281 (Michigan Days of
Remembrance of Armenian Genocide); 1990 Okla. Sess.
Law Serv. Sen. Conc. Res. 68 (West) (Armenian
Remembrance Day); Proclamation of Governor Jim Gibbons
Declaring April 24, 2010 as Armenian Genocide
Remembrance
Day,
http://gov.state.nv.us/PROCs/2010/2010-04-24_Armenian_
genocide_ remembrance.pdf (last visited August 13, 2010);
Proclamation of Governor John Hoeven Declaring April 24,
2007 Armenian Genocide Remembrance Day, http://
governor.nd.gov/proc/docs/2007/04/20070424a.pdf
(last
visited August 20, 2010).
Considering the number of expressions of federal executive
and legislative support for recognition of the Armenian
Genocide, and federal inaction in the face of explicit state
support for such recognition, we cannot conclude that a

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clear, express federal policy forbids the state of California
from using the term Armenian Genocide.
The Supreme Court has suggested that field and conflict
preemption are complementary, Garamendi, 539 U.S. at
420 n. 11, and that it would be reasonable to consider the
strength of a state's interest to determine how serious a
conflict must be shown before declaring the state law
preempted. Id. at 420. Having determined that there is no
clear federal policy with which 354.4 could conflict, we
briefly discuss the possibility of field preemption. Under the
Court's suggested approach, field preemption would only
apply if a State were simply to take a position on a matter
of foreign policy with no serious claim to be addressing a
traditional state responsibility. Id. at 420 n. 11. That is not
the case here.
California's attempt to regulate insurance clearly falls within
the realm of traditional state interests. The legislative
findings accompanying California Code of Civil Procedure
354.4 recognize that thousands of California residents and
citizens have often been deprived of their entitlement to
benefits under certain insurance policies. S.1915, 1999-2000
Reg. Sess. (Cal.2000) at 1(b). The Supreme Court has
recognized that California has broad authority to regulate
the insurance industry. Garamendi, 539 U.S. at 434 n. 1
(Ginsburg, J. dissenting) (citing Western & Southern Life Ins.
Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 653-655
(1981)). California has not exceeded that authority merely by
assigning special significance to an insurer's treatment
arising out of a[ ] [particular] era Id. California's interest in
ensuring that its citizens are fairly treated by insurance
companies over which the State exercises jurisdiction is
hardly a superficial one. Furthermore, Section 354.4's
regulation of the insurance industry has, at most, an
incidental effect on foreign affairs, particularly considering
that thirty-nine other states already officially recognize the
Armenian Genocide. See Garamendi, 539 U.S. at 418-42.
B. Preemption By the Claims Agreement and the War Claims
Act
In 1922, the United States and Germany entered into an
executive agreement establishing a commission to resolve
all claims concerning debts owing to American citizens by
the German government or by German nationals. 42 Stat.
2200 (1922) (the Claims Agreement). In 1928, the
Settlement of War Claims Act (the War Claims Act)
provided for payment of Claims Agreement awards. Z & F
Assets Realization Corp. v. Hull, 114 F.2d 464, 476
(D.C.Cir.1940), aff'd, 311 U.S. 470 (1941). The Claims
Agreement and War Claims Act, if applicable, have
preemptive effect. See Garamendi, 539 U.S. at 416; Medellin,
552 U.S. at 532.
Munich Re argues that the Claims Agreement and War Claims
Act apply to claims against German insurance companies by
Armenian Genocide victims. We disagree. The insurance
policies were the private property of insured Armenian
citizens of the Ottoman Empire, not German debts owing to
American citizens.
Munich Re's reliance on Deutsch v. Turner, 324 F.3d 692 (9th
Cir.2003), is misplaced. In Deutsch, we invalidated a
California statute that allowed World War II slave laborers to

34
bring war-related claims against wartime enemies of the
United States. Deutsch, 324 F.3d at 712. We held that
California's attempt to create a private right of action for
war-related injuries intruded upon the federal government's
exclusive power over matters related to war. Id. at 712-716.
Here, in contrast, 354.4 does not implicate the
government's exclusive power over war. Section 354.4
covers private insurance claims, not wartime injuries. See
Alperin v. Vatican Bank, 410 F.3d 532, 548 (9th Cir.2005)
(distinguishing garden-variety private property interests
from war injuries). Furthermore, as the district court noted,
the Claims Agreement was signed before the end of the
Armenian Genocide. According to the California legislature,
the Armenian Genocide ended in 1923, a year after the
Claim Act was signed at Berlin. We reject Munich Re's
assertion that the Claims Agreement, which resolved claims
from the concluded fighting in World War I, has any bearing
on life insurance policies issued to citizens of the Ottoman
Empire. The Claims Agreement and War Claims act therefore
do not preempt 354.4.
IV. Whether Munich Re Is a Proper Defendant
Munich Re also argues that is it not an insurer, as defined
in 354.4(a)(2), and therefore is not a proper defendant.
Specifically, Munich Re contends that it did not issue
insurance policies in Europe or Asia at any time between
1875 and 1923. However, Munich Re's subsidiaries, Victoria
and Ergo, did issue such policies. Contrary to Munich Re's
interpretation, 354.4 does not define insurer for purposes
of limiting the class of potential defendants, but rather to
limit the types of claims that may be brought.
Cal.Civ.Proc.Code 354.4(b). Accordingly, Munich Re is a
proper defendant.
V. Whether Movsesian Has Standing
Lastly, we agree with the district court that 354.4(c)
confers standing on Movsesian. We reject Munich Re's
assertion that 354.4(c)'s reference to Armenian genocide
victims, their heirs, and beneficiaries is all-encompassing.
The broad language of 354.4(c) clearly applies to any
action seeking benefits under the insurance policies, so long
as the action is filed before December 31, 2010.
VI. Conclusion
California Code of Civil Procedure 354.4 is not preempted
by federal law. There is no clearly established, express
federal policy forbidding state references to the Armenian
Genocide. California's effort to regulate the insurance
industry is well within the realm of its traditional interests.
Nothing in 354.4(a)(2) or 354.4(b) operates to limit the
class of proper defendants, nor does 354.4(c) limit standing
to any particular group. Accordingly, the district court's order
denying the Rule 12(b)(6) motion to dismiss is AFFIRMED.
Contrary to the majority's view, I would hold that a clear
Presidential foreign policy exists in this case against officially
recognizing the Armenian Genocide. Over the past decade,
three separate House Resolutions have attempted to
formally recognize the Armenian Genocide. See H.R. Res.
596, 106th Cong. (2000); H .R. Res. 193, 108th Cong. (2003);
H.R. Res. 106, 110th Cong. (2007). Each time, however, the

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Administrations of President Clinton and President Bush took
specific actions, both publicly and privately, to oppose those
Resolutions1 and to urge that legislative action was not the
preferred solution.2 And each time, as a result, the
Resolutions concerned were never brought to a vote on the
floor.
Based on this undisputed evidence, which in my view is not
undermined by the federal government's occasional efforts
to commemorate these tragic and horrific events, I would
conclude that there is an express foreign policy prohibiting
legislative recognition of the Armenian Genocide, as
pronounced by the Executive Branch and as acquiesced in by
Congress. Accordingly, I dissent. I would find that California
Code of Civil Procedure 354 .4 is preempted because it
clearly conflicts with this express federal policy. See Am. Ins.
Ass'n v. Garamendi, 539 U.S. 396, 420-25 (2003).
More importantly, the same result is mandated under a
theory of field preemption. The Supreme Court has
characterized the power to deal with foreign affairs as
primarily, if not exclusively, vested in the federal
government. See, e.g., id. at 413-14; Zschernig v. Miller, 389
U.S. 429, 435-36 (1968); United States v. Pink, 315 U.S. 203,
233 (1942). As a result, the Court has declared state laws to
be preempted when they were incompatible with the federal
government's foreign affairs power, even in the absence of
any conflict. See, e.g., Zschernig, 389 U.S. at 432, 440-41
(striking down an Oregon probate law, in the absence of any
federal action, because it was an intrusion by the State into
the field of foreign affairs which the Constitution entrusts to
the President and the Congress); Hines v. Davidowitz, 312
U.S. 52, 62-65 (1941) (invalidating a Pennsylvania statute
governing aliens because the field of immigration regulation
is occupied exclusively by federal law). This court has done
the same on occasion, also in the absence of any apparent
conflict. See, e.g., Von Saher v. Norton Simon Museum of Art
at Pasadena, 592 F.3d 954, 965-68 (9th Cir.2010) (finding
preempted California's statute dealing with recovery of art
stolen by the Nazis because the statute intruded on the
federal government's power to make and resolve war);
Deutsch v.. Turner Corp., 324 F.3d 692, 715-16 (9th Cir.2003)
(finding unconstitutional California's statute providing
recovery to World War II slave laborers because the statute
intruded on the federal government's power to resolve war
claims).
The central question under a field preemption analysis is
whether, in enacting 354.4, California has addressed a
traditional state responsibility, Garamendi, 539 U.S. at 419
n. 11, or whether it has infringed on a foreign affairs power
reserved by the Constitution exclusively to the national
government. Von Saher, 592 F.3d at 964. Courts have
consistently looked past superficial interests to ascertain
true legislative intent. See, e.g., Garamendi, 539 U.S. at 42526 (rejecting purported state interest in regulating insurance
business and blue sky laws); Zschernig, 389 U.S. at 437-41
(rejecting purported state interest in regulating descent of
property); Von Saher, 592 F.3d at 964-65 (rejecting purported
state interest in establishing a statute of limitations for
actions seeking the return of stolen property); Deutsch, 324
F.3d at 707-08 (rejecting purported state interest in
procedural rules).

35
In this case, even though 354.4 purports to regulate the
insurance industry, its real purpose is to provide relief to the
victims of Armenian Genocide. See Sen. Jud. Comm.,
Analysis of S.B.1915, 1999-2000 Reg. Sess. 5-6 (May 9,
2000). By its terms, only Armenian Genocide victims or
their heirs and beneficiaries can bring a claim under the
statute. CAL. CIV. PROC. CODE 354.4(b). Armenian
Genocide victim, in turn, is defined as any person of
Armenian or other ancestry living in the Ottoman Empire
during the period of 1915 to 1923, inclusive, who died, was
deported, or escaped to avoid persecution during that
period. Id. 354.4(a). In short, 354.4 is California's
attempt to provide relief to a specific category of claimants
who were aggrieved by a foreign nation, not a general
attempt to regulate the insurance industry. While this may be
a commendable goal, it is not an area of traditional state
responsibility, and the statute is therefore subject to a field
preemption analysis. See Garamendi, 539 U.S. at 419 n. 11,
425-27; Von Saher, 592 F.3d at 964-65.
The majority errs in relying on Justice Ginsburg's dissent in
Garamendi to reach a contrary conclusion. See ante at
19659. The Garamendi majority specifically rejected Justice
Ginsburg's position that California in that case had broad
authority to regulate the insurance industry, noting instead
that the challenged statute effectively single[d] out only
policies issued by European companies, in Europe, to
European residents, at least 55 years ago. 539 U.S. at 42526. Similarly, in this case, California's interest is weak
because instead of regulating the insurance industry
generally, 354.4 effectively singles out only policies issued
in Europe or Asia, to any person of Armenian ancestry, in the
Ottoman Empire, at least 87 years ago.
As applied to this case, there can be no doubt that 354.4 is
preempted. The Constitution vests with the President the
power to make policy determinations regarding national
security, wars in progress, and diplomatic relations with
foreign nations. See U.S. Const. art. II, 2, cl. 1; id. 2, cl. 2;
id. 3; see also Garamendi, 539 U.S. at 414-15; Deutsch,
324 F.3d at 708-09. The Constitution also delegates to the
President the prerogative to speak for the Nation with one
voice in dealing with other governments. Crosby v. Nat'l
Foreign Trade Council, 530 U.S. 363, 381 (2000). When it
comes to interactions with foreign nations, state lines
disappear. United States v. Belmont, 301 U.S. 324, 331
(1937). By declaring that the Armenian Genocide has
occurred and by providing a right of action for its victims,
California is intruding into the field of foreign relations by
passing judgment on another nation when the President has
expressly decided to pursue an alternate way of addressing
the issue .3 California's approach, thus, undercuts the
President's diplomatic discretion and the choice he has made
exercising it. See Garamendi, 539 U.S. at 423-24.
Finally, the majority's opinion appears to be in conflict with
our recent case law on the issue. The majority highlights the
fact that in this case there is no executive agreement
regarding the use of the term Armenian Genocide. See
ante at 19656. However, our recent decisions in Deutsch and
Von Saher indicate that the preemptive power of federal
policy is not derived from the form of the policy statement,
but rather from the source of the Executive Branch's
authority to act. Thus, we have recently stated that foreign

meikimouse
affairs field preemption may occur even in the absence of a
treaty or federal statute, because a state may violate the
Constitution by establishing its own foreign policy. Von
Saher, 592 F.3d at 964 (quoting Deutsch, 324 F.3d at 709).
Applying this principle, the court can hold a state law
preempted regardless of whether the National Government
had acted and, if it had, without reference to the degree of
any conflict, the principle having been established that the
Constitution entrusts foreign policy exclusively to the
National Government. See Garamendi, 539 U.S. at 419 n.
11; accord Von Saher, 592 F.3d at 963-64.
Accordingly, I would conclude there is an express Presidential
foreign policy, as acquiesced in by Congress, prohibiting
legislative recognition of the Armenian Genocide. By
formally recognizing the Armenian Genocide, 354.4
directly conflicts with this foreign policy. Moreover, far from
concerning an area of traditional state interest, 354.4
instead infringes upon the federal government's prerogative
to conduct foreign affairs. Therefore, I respectfully dissent
and would reverse the district court's order denying the Rule
12(b)(6) motion to dismiss.
FOOTNOTES
1. Hereinafter, all statutory references are to the California
Code of Civil Procedure, unless otherwise indicated.
2. At oral argument, Munich Re asked us to take judicial
notice of a December 4, 2008 letter from Nabi Sensoy, the
Turkish Republic's Ambassador to the United States, to Molly
Dwyer, Clerk of the United States Court of Appeals for the
Ninth Circuit (December 4, 2008). We decline to take judicial
notice of the letter because the letter was submitted afterand apparently in response to-the district court's decision.
See, e.g., Ctr. for Bio-Ethical Reform, Inc. v. City and County
of Honolulu, 455 F.3d 910, 918 n. 3 (9th Cir.2006) (declining
to take judicial notice of documents issued after the district
court's decision).
3. Neither party addresses the due process issue on appeal.
1.
See, e.g., Letter to the Speaker of the House of
Representatives on a Resolution on Armenian Genocide, 3
Pub. Papers 2225-26 (Oct. 19, 2000) (noting that H.R. Res.
596 could have far-reaching negative consequences for the
United States and might undermine efforts to encourage
improved relations between Armenia and Turkey); H.R.Rep.
No. 108-130, at 5-6 (2003) (noting that H.R. Res. 193 could
complicate our efforts to bring peace and stability to the
Caucasus and hamper ongoing attempts to bring about
Turkish-Armenian reconciliation); Press Release, White
House Office of the Press Secretary, President Bush
Discusses Foreign Intelligence Surveillance Act Legislation
(Oct. 10, 2007) (noting that H.R. Res. 106 would do great
harm to our relations with a key ally in NATO and in the
global war on terror).
2. See, e.g., Press Release, White House Office of the Press
Secretary, President Bush Discusses Foreign Intelligence
Surveillance Act Legislation (Oct. 10, 2007) (urging
opposition to H .R. Res. 106 because it was not the right
response to these historic mass killings); Press Release,
White House Office of the Press Secretary, Press Briefing by
Dana Perino (Oct. 11, 2007) (The President believes that the

36
proper way to address this issue and express our feelings
about it is through the presidential message and not through
legislation.).
3. The President's concern that a formal recognition of the
Armenian Genocide might have negative consequences on
our relations with Turkey is very real. For example, when the
French National Assembly voted in favor of a bill that would
criminalize denial of the events of 1915, the Turkish military

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cut all contacts with the French military and terminated
defense contracts under negotiation. See Letter from Robert
M. Gates, Sec'y of Defense, and Condoleeza Rice, Sec'y of
State, to Nancy M. Pelosi, Speaker of the House of
Representatives (Mar. 7, 2001).
PREGERSON, Circuit Judge: