Remaining Legal Issues From World War II: Domestic Courts and International Law John Yoo Heller Professor of Law, University of California at Berkeley Visiting Scholar, American Enterprise Institute

Your Speaker Berkeley Law, U.S. Dep’t of Justice, U.S Senate, U.S. Supreme Court, Yale Law, 1992 Harvard College, 1989

Greetings from Berkeley #1 US Public Univ. Dynamism of West Gateway to Asia Public Int’l Law Studies Korea Law Center

Legal Issues From WWII Europe – Potsdam Agreement: Temporary – Germany Remained Divided; Occupied – Treaty on Final Settlement: 1990 – Holocaust Legal Issues Asia – San Francisco Treaty 1951 – Follow-up Agreements Taiwan 1952 Korea 1965 PRC 1972 & 1978 – Unresolved Issues

Remaining WWII Legal Issues Territorial Disputes – Korea-Japan: Dokdo – China-Japan: Senkakus – South China Seas Reparations – Forced Labor – Comfort Women Cultural Property – Return of Art, “Woman in Gold”

Why American Courts? Open to Foreign Parties and Events – Plaintiffs and Defendants can be Foreign – Broad Subject Matter: Includes Foreign Events Broader Personal Jurisdiction – Minimum Contacts Test – Large Market = Multinational Corps in US American-Style Discovery – Access to any documents that are relevant to lawsuit – Deposition of witnesses Jury Trials Class Actions Attorneys Fees

Domestic Law – ATS Alien Tort Statute – Suit by an Alien Plaintiff for a Tort – In Violation of “the Law of Nations” Brief History of ATS from Filartiga to Sosa to Kiobel – Provides Jurisdiction & Cause of Action – Common Law provides a Cause of Action – Definite Content & Acceptance by Civilized World – But Not Extraterritorial: There Must be a U.S. Connection Holocaust Victims Cases – Swiss, German, Austrian, French Banks: Settle for $1.25b & less – Swiss & German Insurance Co’s: – Slave and Forced Labor: German Foundation = $10b DM (5b euros)

Domestic Law – Application to Comfort Women Does “Law of Nations” Include WWII Claims? – Forced Labor: Slavery – Comfort Women: Rape & Forced Prostitution – Nuremberg Principle IV(b): “deportation and forced labor” = war crime & crime against humanity – Cal. Trial Judge: “it seems beyond doubt that the forced labor practices of defendants during the Second World War violated traditional international law.” Settlement by Treaty (private waiver?) – 1951 San Francisco Treaty: Not Signed by Korea or China – 1965 Korea-Japan Treaty: compensation for settlement of property claims between nations (article 2): “The High Contracting Parties confirm that the problems concerning property, rights, and interests of the two High Contracting Parties and their peoples (including juridical persons) and the claims between the High Contracting Parties and between their peoples, including those stipulated in Article IV(a) of the Peace Treaty with Japan signed at the city of San Francisco on September 8, 1951, have been settled completely and finally.”

Domestic Law – Procedural Restrictions Foreign Sovereign Immunity – Foreign Sovereign Immunity Act & Commercial Activity Exception – Altmann v. Austria & Retroactivity of Restrictive Theory – Political Question Doctrine, Joo v. Japan (D.C.Cir.2003 & 2005) FSIA and Private Companies Japanese Companies Not Covered by FSIA How Intertwined were Contractors with Government? Connection to United States? – Events are not within the U.S. – ATS Plaintiffs cannot be U.S. citizens; but U.S. Residents? Statute of Limitations – ATS has no time limit, but 10 year federal borrowing? – In re WWII era Japanese Forced Labor Litigation (ND Cal 2001) – Equitable Tolling?

Conclusions