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International Courts and Dispute Resolution

The Not Very Persuasive International Law Arguments in Favor of the Iran Visa Denial

by Julian Ku

I think it is fair to say that when Kevin and I agree on a legal question, there is a good chance there is a lunar eclipse happening or some other rare astronomical phenomenon occurring somewhere.  But since both of us think that the U.S. has no international legal basis to deny a visa to Iran’s new UN ambassador, this “fair and balanced blog” should consider the international law arguments offered in favor of the U.S. decision, especially as Iran has signaled it is going to fight this US decision, maybe by seeking an ICJ advisory opinion or an arbitral tribunal. This NYT article outlines three international law arguments that the U.S. might invoke in descending order of persuasiveness (at least to me):

Precedent and Practice Trump: Larry D. Johnson, who served as the Deputy Legal Counsel to the U.N. in the past, suggests that the U.S. and the U.N. have come to a tacit agreement to avoid disputes on visa denials.  If a visa is denied, the country facing denial must bring this matter up with the U.S.  The U.N. will not do so.  If this past practice is followed by the U.N., it effectively undermines the legal basis for Iran’s challenge.  Absent the Headquarters Agreement with the U.N., the U.S. has no obligation to issue a visa to Iran’s UN envoy, and Iran (not being a party to the Headquarters Agreement) has no international legal basis to protest.

My take: If this is current practice, and there is some evidence for this, the U.S. is really just acting consistent with its nearly sixty year pattern of practice by denying the visa in this case.  This doesn’t exactly legalize (internationally) the US act, but it does help.  

The Iranian Hostage Crisis Trumps: John Bellinger, over at Lawfare, suggests that because Iran’s UN Envoy was involved in one of the most egregious violations of diplomatic immunity rights in the past century, there will be little sympathy from other countries for Iran.

My take: This might be right, but it is not clear to me that the past violations would meet the “security exception”, and it is not even clear that the security exception is a valid international reservation to the Headquarters Agreement.  In any event, this is not really a legal argument, but a judgment on international politics.  If Iran goes to the General Assembly, the merits of this political judgment will be tested.

The UN Charter’s Human Rights Obligations Trumps: University of Houston lawprof Jordan Paust argues that because Iran’s UN Ambassador was involved in what the ICJ called a violation of human rights, the U.S. would be justified denying him a visa in reference to its U.N. Charter obligation to “respect human rights.”

My take: With all due respect to Professor Paust, I don’t think the U.N. Charter can be fairly read to require states to “respect human rights” in violation of their other international obligations.  The language of the Charter in Article I asks states to “promot[] and encourag[]” human rights. It is far from mandatory language.

Moreover, if correct, this is the exception that swallowed the UN Headquarters Agreement.  The U.S. could deny a visa to anyone whom it believes has or is likely to undermine “respect for human rights.” Past practice suggests the U.S. has not interpreted either the Charter or the Headquarters Agreement in this way.

If Iran decides to seek a General Assembly resolution, it will not require the U.S. to change its decision, but it would probably be a good test of John Bellinger’s thesis about where countries’ sympathies lie. My guess is that we are going to see tons of absentions.

If Iran gets the U.N. to demand arbitration under the Headquarters Agreement, this would be more interesting.  The U.S. might have to follow China and Russia’s example by simply refusing to participate in the arbitration. And the U.S. would probably lose that arbitration (although enforcement is another matter).   If I were Iran’s government, that would be a pretty ideal outcome. They still will not get their ambassador, but they can cause some pretty serious soft power damage before they give up.

Whale Wars Day of Judgment: ICJ Rules Against Japan

by Julian Ku

Here is the ICJ’s decision in “Whaling in the Antarctic” (Australia v. Japan, New Zealand intervening).  Here is the Registry’s summary. The vote was unanimous on jurisdiction, and then 12-4 on the rest in Australia’s favor with judges Owada, Abraham, Bennouna, Yusuf dissenting.  There was one aspect of the decision that went in favor of Japan (13-3) but that aspect of the decision shouldn’t affect the overall outcome significantly.

I won’t pretend to have digested this judgment in any rigorous way. I will note that the judgment calls on Japan to “revoke any extant authorization, permit or licence granted in relation to JARPA II, and refrain from granting any further permits in pursuance of that programme.”  Japan’s implementation (or non-implementation) of this remedy will be worth watching going forward.

Game On! Philippines Files (4000 page) Memorial in China UNCLOS Arbitration

by Julian Ku

Just in time for the odd Sunday filing deadline, the government of the Philippines announced that it had submitted its memorial in its arbitration with China under UNCLOS.

Ignoring a possible backlash from China, the Philippine government transmitted the document, called a “memorial” in international arbitration parlance, on Sunday to the Netherlands-based Permanent Court of Arbitration where a five-member tribunal operating under the United Nations Convention on the Law of the Sea will hear Manila’s complaint.

“Today, the Philippines submitted its memorial to the arbitral tribunal that is hearing the case its brought against the People’s Republic of China under the United Nations Convention on the Law of the Sea,” Foreign Affairs Secretary Albert del Rosario told a news conference.

“With firm conviction, the ultimate purpose of our memorial is our national interest.”

Manila declined to release a copy of the memorial as it has yet to be reviewed by the court.

But Del Rosario said the Philippine “memorial” consists of “ten volumes with maps,” “nearly 4,000 pages” and will fortify the Philippine case which seeks to declare China’s exaggerated claim illegal. A hard copy will be forwarded to the tribunal on Monday.

I hope and trust that at least volume I of the memorial (containing the 270-pages of actual legal argument and analysis) is released publicly soon.  I do think the additional 3700-plus pages of annexes is overkill in a case where the other side is highly unlikely to bother answering.  Still, it will be an interesting public statement of the Philippines’ best legal arguments.  I have grown increasingly skeptical of this Philippines argument, both from a legal and a strategic standpoint.  But I would like to see their arguments.

Whale Wars: Is This The End?

by Julian Ku

On Monday, the International Court of Justice will announce its long-awaited judgment in Whaling in the Antarctic (Australia v. Japan). The judgment (scheduled for 10 a.m. Hague time) comes almost four years after Australia first filed its application way back in May 2010 (here is one of many prior posts where I complained about the length of time this judgment has taken).

This case will be the first time (I believe) that Japan has participated in an ICJ proceeding as a respondent and facing a binding judgment.  Both Japan and Australia had no shortage of legal talent on their teams in this case.  Australia is claiming that Japan is violating its obligations under the International Convention for the Regulation of Whaling by using the cover of “scientific research” to actually conduct commercial whaling.  Japan disagrees, and my impression is that this will end up being more of a factual than legal determination by the ICJ here, but I haven’t been following the legal arguments very closely.

In any event, it will also be interesting to see how and if Japan complies with the ICJ’s ruling if it loses.  I find it hard to imagine that the Japanese government will immediately comply, but it is hard to imagine Japan simply ignoring the judgment either.  Since there is evidence the commercial viability of whaling in Japan is collapsing anyway, perhaps this is the excuse the Japanese government needs to end its whaling programs? In any event, if Japan wants to leave open international adjudication as a mechanism for resolving disputes with Korea or China, it needs to be careful in how it reacts to any adverse ruling here.

Could Moreno-Ocampo Represent LRA Victims at the ICC?

by Kevin Jon Heller

John Louth at OUP passes along the latest potential twist in Moreno-Ocampo’s career path:

The former prosecutor of the International Criminal Court (ICC), Mr Luis Moreno Ocampo, has offered to represent the victims of Barlonyo Massacre in the court.Barlonyo village in Agweng Sub-county, Lira District is where more than 400 people were massacred by suspected Lord’s Resistance Army rebels on February 21, 2004. A total of 301 people are buried at the memorial site in a mass grave.

However, more people are believed to have been killed in the attack as 11,000 people were in the camp at the time. “I have something to offer you, I want to be your lawyer,” Mr Ocampo told the survivors who gathered at Barlonyo to welcome him on Friday.

He then asked those in the crowd who lost relatives in Barlonyo massacre to raise their hands and all did. He then offered to represent them in court. Mr Ocampo said initially, it was thought only 200 were killed in Barlonyo but now he knows more people were killed.

“We can document that. The killing, abduction and the looting and we can present this to the ICC. We can request to expand the arrest warrant, the number of victims and the number of crimes and document well what happened here,” he said.

“We can present this to the ICC we can request to expand the arrest warrant we can expand the number of victims and number of crimes.” Mr Ocampo was invited to Lango region by Children of Peace, an NGO supporting the vulnerable and victims of the Barlonyo in Lira District

I have no idea whether Moreno-Ocampo actually intends to represent Barlonyo victims at the ICC, but it’s worth thinking about some of the potential ethical issues that such representation would involve. Like all counsel who are involved with the Court, Moreno-Ocampo would be subject to the Code of Professional Conduct for Counsel. The most relevant provision is Art. 12, “Impediments to representation”:

1. Counsel shall not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

I don’t think Art. 12(1)(a) would apply, because the OTP doesn’t have “clients” in the sense of private counsel — especially given that the victims of crimes have their own counsel, making clear that they are not represented by the OTP. But it would be interesting to see the OTP’s position, because it could at least plausibly argue that the provision would require Moreno-Ocampo to get its permission to represent the Barlonyo victims. There is no question that the Barlonyo case is “substantially related” to Moreno-Ocampo’s previous work on the LRA cases; after all, the OTP pursued those cases on his watch and Moreno-Ocampo was responsible for opening the Uganda investigation in the first place. And although the interests of the OTP and the victims often align, that is certainly not necessarily the case — see, e.g., the Lubanga controversy over sexual violence. So I could see Bensouda worrying that Moreno-Ocampo might pursue a strategy for the Barlonyo victims that was inconsistent with his previous work on the LRA cases.

Which leads to Art. 12(1)(b), the confidentiality provision. That provision could easily be fatal to Moreno-Ocampo’s potential representation of the Barlonyo victims, even if the OTP didn’t oppose it. No former member of the OTP could have had greater access to confidential information than Moreno-Ocampo; after all, he was the Prosecutor for eight years. Could he represent the victims without in any way revealing or relying on confidential information he had access to while he was the Prosecutor? I’m willing to give Moreno-Ocampo the benefit of the doubt that he would take his confidentiality obligation seriously, but I’m skeptical that he — or anyone in a similar position — could maintain the mental “Chinese wall” necessary to avoid information bleed. So I could very easily see the Court deciding that it would not be in the “interests of justice” — or in the interests of the victims themselves — to permit Moreno-Ocamo to represent the Barlonyo victims given his previous role in the Court.

I have no problem with Moreno-Ocampo using his clout and visibility to promote the interests of the Barlonyo victims. But I’m not sure whether he should actually represent them at the ICC. In my view, it would be difficult, if not impossible, for Moreno-Ocampo to navigate the exceptionally complicated confidentiality issues that would be involved in working on behalf of victims in a situation he was once responsible for investigating. We’ll see what happens.

Al-Senussi, Gaddafi Show Trial to Begin Next Month

by Kevin Jon Heller

According to Lebanon’s Daily Star, Libya intends to begin the trial on April 14, just a few weeks from now:

Seif al-Islam Kadhafi, Saadi Kadhafi and former spy chief Abdullah Senussi are among more than 30 officials from the ousted regime who are to stand trial on charges ranging from murder to embezzlement.

Former premiers Al-Baghdadi al-Mahmudi and Bouzid Dorda are also among those going on trial from April 14, Seddik al-Sour, spokesman for the state prosecutor’s office, told a news conference.

Charges against Kadhafi’s sons and aides include murder, kidnapping, complicity in incitement to rape, plunder, sabotage, embezzlement of public funds and acts harmful to national unity.

Saadi Kadhafi, who was extradited from Mali earlier this month, is to stand trial in the same case, said Sour.

His older brother Seif al-Islam, Kadhafi’s former heir apparent, is being held by rebels in the western city of Zintan who have refused to transfer him to Tripoli for the trial.

Sour said he could stand trial via video conference from his detention cell in Zintan.

There is still no evidence that either al-Senussi or Gaddafi have ever had access to a lawyer, despite Libya’s constant assertions to the ICC that the government is doing everything in its power to arrange representation for them. Can’t let a little thing like Libyan law get in the way of a good show trial. And, of course, the nice thing about a show trial is that there really isn’t any need for the defendants to prepare a defence.

It’s also difficult to avoid noting the irony of Sour’s suggestion that Gaddafi could be tried via video link — exactly what the Assembly of States Parties and the Trial Chamber (though not yet the Appeals Chamber) have said is fine in the Kenya cases. To be fair, Libya would use videoconferencing without Gaddafi’s consent, whereas the ASP’s backdoor amendment of the Rome Statute was designed to placate Kenyatta and Ruto. But once the ASP and TC proved willing to dilute the clear presence requirement in Art. 63(1) of the Rome Statute, it was only a matter of time before states began taking liberties with presence, as well.

Using Trade Remedies to Enforce Arbitration Awards: The WTO-Compliance Question

by Roger Alford

Simon Lester has a thoughtful response to my earlier post about using trade remedies to enforce arbitration awards. He questions whether conditioning GSP benefits on compliance with arbitration awards is consistent with WTO obligations. My answer is essentially yes. Because there are so many issues at play, I thought it best to respond in a new post rather than respond in the comment section to his post.

First, there is no question that granting preferential treatment for developing countries does not violate MFN rules. That was settled with the so-called Enabling Clause. The real question is whether a particular GSP-scheme is consistent with the Enabling Clause. The Enabling Clause provides that Member States may accord differential and more favorable treatment to developing countries, provided (a) such treatment is non-discriminatory as between similarly-situated developing countries; and (b) is designed to promote the development, financial and trade needs of the developing countries.

As to the first requirement, the Enabling Clause requires GSP benefits to be conferred in a non-discriminatory manner among similarly-situated developing countries. This, according to EC-Tariff Preferences, requires that the relevant preference be made available to all beneficiaries that share that need. (EC-Tariff Preferences, para. 180). That requirement appears to be met. The U.S. obligation on compliance with arbitration awards is applied to all GSP beneficiaries alike. Argentina might have a discrimination argument if other beneficiary countries refuse to honor arbitration awards but still enjoy GSP benefits. But I am not aware of any such examples, and if anything, it appears that other developing countries like Ecuador will soon face a similar fate as Argentina.

Second, the GSP conditional benefit must be imposed to meet particular development, financial or trade needs. In other words, if you are granted benefits with strings attached, those strings must be for the benefit of the developing country. Simon Lester questions whether conditional tariff benefits can ever meet that requirement. I disagree. If you look at the various GSP schemes, the list of such needs are legion, addressing issues such as drug-trafficking, communism, terrorism, human rights, environmental protection, expropriation, contractual compliance, intellectual property protections, etc.

At one level one might view many of these concerns as primarily about protecting developed countries’ interests more than promoting the developing country needs. But, of course, these goals are mutually-beneficial. Goals such as promoting the rule of law, creating a safe and stable legal climate, encouraging foreign investment, good governance, reducing crime and corruption, guaranteeing human rights, and encouraging environmental sustainability are all legitimate objectives that developed countries legitimately can ask developing countries to pursue.

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The ICC Fiddles While Libya Burns

by Kevin Jon Heller

For quite some time I zealously followed all of the various filings in the Libya cases — by Libya, al-Senussi and Gaddafi, the Registry, the OPCV, everyone. I also regularly blogged about those filings. But I haven’t lately, as consistent readers will know. The reason?

The ICC judges seem to have lost all interest in actually making decisions.

The record is quite shocking. Take the admissibility challenges. The Pre-Trial Chamber rejected Libya’s admissibility challenge to the case against Saif Gaddafi on 31 May 2013, nearly ten months ago. And it granted Libya’s admissibility challenge to the case against al-Senussi on 11 October 2013, more than five months ago. Both sides immediately appealed the decisions, yet the Appeals Chamber has done nothing since. I’ve been hearing rumours lately that the Appeals Chamber is planning on resolving both appeals at the same time. That may reduce the judges’ workload, but it doesn’t justify letting the appeals languish well beyond what is reasonable.

But it’s not just the Appeals Chamber that is failing to do its job. Pre-Trial Chamber I deserves even harsher criticism. Not surprisingly, Gaddafi’s defence team has been trying desperately to convince the Pre-Trial Chamber to issue a finding of non-compliance against Libya regarding its failure to surrender Gaddafi to the Court. (Or to at least try to surrender him, given that he is still being held in Zintan.) The defence filed its its first request for a finding of non-compliance on 7 May 2013, and it has filed numerous similar requests since. Yet the Pre-Trial Chamber has still not issued a decision on any of the defence’s requests.

So what has Pre-Trial Chamber I been doing in the Libya cases? Not much. It has issued a grand total of three decisions in the past five months, none of which have been substantive. Here they are:

13/02/2014 ICC-01/11-01/11-511 Pre-Trial Chamber I Decision designating a single judge
11/12/2013 ICC-01/11-01/11-490 Pre-Trial Chamber I Decision on the “Request for Leave to Appeal against the ‘Decision on the Request for an order for the commencement of the pre-confirmation phase by the Defence of Saif Al-Islam Gaddafi'”
13/11/2013 ICC-01/11-01/11-477 Pre-Trial Chamber I Decision on the “Defence application on behalf of Mr. Abdullah Al Senussi for leave to appeal against the ‘Decision on the request of the Defence of Abdullah Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer

Although it’s bad enough that the Court’s judges feel no urgency to address al-Senussi’s situation, their willingness to turn a blind eye to Gaddafi’s detention is simply unconscionable. As his defence team notes in its most recent — and certain to be equally ignored — request for a finding of non-compliance, Gaddafi has now been held in solitary confinement without access to a lawyer (at least one not subsequently imprisoned unlawfully by the Libyan government) for more than two years. (27 months, to be precise.) That situation has been condemned not only by the United Nations Working Group on Arbitrary Detention, but also by the African Court of Human Rights, which determined more than a year ago with regard to Gaddafi’s detention that “there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee.”

Yet still the judges do nothing — fiddling while Libya burns.

Using Trade Remedies to Enforce Arbitration Awards

by Roger Alford

As I discuss in a recent article published in the Santa Clara Journal of International Law, one of the most significant developments signaling the convergence of trade and arbitration is the use of trade remedies to enforce arbitration awards. This is done primarily when a developed country threatens to remove preferential trade benefits to a developing country if that country does not honor its international arbitration commitments.

The WTO allows (but does not require) developed countries to grant preferential trade benefits to “promote the development, financial and trade needs of developing countries.” Many developed countries—including Australia, Canada, the European Union, and the United States—have established such “Generalized System of Preferences” or GSPs to promote trade with developing countries. The major benefit of GSP schemes is the unilaterally lowering of tariff bowers for products from beneficiary countries without a corresponding reduction in tariffs for the developed country’s products.

The discretionary nature of these schemes means that the trade benefits come with strings attached. In the United States and the European Union, for example, developing countries are subject to performance obligations with respect to matters such as drug trafficking, international terrorism, democracy, human rights, environmental protection, government corruption, unlawful expropriation, the rule of law, and good governance.

The United States imposes a number of conditions on beneficiary countries, including that they recognize and enforce arbitral awards in favor of United States nationals. Any country that wishes to secure beneficiary status under the GSP scheme must satisfy this criterion, and any country that fails to maintain this commitment jeopardizes their beneficiary status. The provision was added to the Trade Act of 1974 because of concerns that it was “contrary to sound U.S. policy to give…any… developing nation the favored treatment contemplated by the present legislation in the face of unwillingness to abide by solemn agreements to recognize as final and binding arbitration awards rendered in disputes between it and American parties.” (120 Cong. Rec. 39831).

The use of trade remedies to enforce arbitration awards is best illustrated by the ongoing dispute over Argentina’s refusal to honor adverse investment awards. On March 26, 2012, the Obama Administration announced that Argentina’s GSP beneficiary designation would be suspended “because it has not acted in good faith in enforcing arbitral awards in favor of United States citizens.” It was the first time in American history the United States denied GSP trade benefits to a developing country for its failure to honor arbitration commitments.

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Bolivia´s Reasonably Strong ICJ Case against Chile

by Andrés Guzmán Escobari

[Andrés Guzmán Escobari is a former Bolivian diplomat, a Professor at Universidad del Valle and Universidad de los Andes and an associate researcher for the German Foundation Friedrich-Ebert-Stiftung. The opinions expressed are strictly personal.]

A few days after Bolivia instituted proceedings against Chile before the International Court of Justice, Julian Ku wrote a post here on Opinio Juris entitled “Bolivia´s Ridiculously Weak ICJ Case against Chile”.  His main claim?  “This case looks like a sure loser on admissibility; it looks like it is going to be a major waste of time for the ICJ”.

In this post, I would like to offer a rebuttal to Mr Ku’s comments and to explain why Bolivia’s case is not only not a ‘sure loser’ but is reasonably strong.  The case concerns Bolivia’s request that the Court declare and adjudge that “Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean” because “Chile has breached the said obligation”. Specifically, for that reason, “Chile must perform the said obligation with good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean”.

Mr Ku develops two mains arguments to support his opinion: (1) that there is no compulsory ICJ jurisdiction under the Bogota Treaty; and (2) that there is no specific obligation on Chile to negotiate an agreement granting Bolivia an access to the Pacific Ocean because the language of the declarations made by Chilean authorities with the purpose of giving Bolivia back sovereign access to the sea were “non-obligatory”.

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Another Terrible Day for the OTP

by Kevin Jon Heller

Readers are no doubt aware that Germain Katanga was convicted by the ICC yesterday. What may be less obvious is that the verdict nevertheless represents the Trial Chamber’s complete rejection of the OTP’s case against Katanga. The OTP alleged that Katanga was responsible as an indirect co-perpetrator for seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery). The Trial Chamber acquitted Katanga on all of the charges concerning rape, sexual slavery, and the use of child soldiers. And although it convicted him of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging), the Trial Chamber rejected the idea that he was responsible for those crimes as an indirect co-perpetrator, choosing to “recharacterize” the facts to support finding him guilty as an accessory under Art. 25(3)(d) of the Rome Statute (contribution to a group crime).

The OTP, in short, failed to prove any of its legal claims — just as it did with regard to Katanga’s co-defendant, Mathieu Ngudjolo, who was acquitted on all charges in 2012. Indeed, had the Trial Chamber not been willing to substitute an uncharged and unconfirmed mode of participation for the charged and confirmed one, Katanga would have simply walked, as well.

(Which is, by the way, exactly what should have happened. The Trial Chamber’s “recharacterization” of the facts in the case, which was motivated solely by the desire to ensure Katanga’s conviction — thereby saving the OTP from itself — was fundamentally inconsistent with Katanga’s right to a fair trial. But that will be the subject of my next post.)

All in all, another terrible day for the OTP.

Chinese Victims of Forced Labor Sue Japanese Companies in Chinese Courts; They Might Even Win

by Julian Ku

In a legal wrinkle to the ever-worsening Sino-Japanese relationship, the Chinese government has now publicly backed a lawsuit filed in Beijing courts against Japanese companies that used Chinese citizens as forced laborers during World War II.

The lawsuit names Mitsubishi Materials Corporation and Mitsui Mining and Smelting as defendants and asks for compensation of 1 million yuan ($163,000) for each defendant as well as apologies in the Chinese and Japanese languages to be placed with the country’s major media outlets.

Japan’s government has already opposed these lawsuits, saying that any such war reparation claims were settled by postwar agreements between China and Japan. Its spokesman:

“…I can say that since such problems were included in the Japan-China communique, there is no case,” he said. “The individual rights for seeking (compensation) were included in the communique.”

In a prior post, I noted that Korean courts have allowed similar lawsuits against Japanese companies to proceed despite pretty clear language blocking such lawsuits in the Korea – Japan Agreement on the Settlement of Property.  Unless I am missing something, however, I don’t see any similarly clear language in either the China-Japan Peace Treaty or in the 1972 Communique re-establishing diplomatic relations.  The Communique does contain this clause:

5. The Government of the People’s Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan.

This language could be read to bar claims by wartime victims against Japanese companies for forced labor, but that reading is far from clear (at least to me).  If you compare this language to the Korea-Japan Agreement (“problems concerning property, rights, and interests of the two High Contracting Parties and their peoples (including juridical persons)” were settled) (emphasis added) and the US-Japan Peace 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…”) (emphasis added), then the Japan-China Communique language looks far less protective..

In the China-Japan Communique, only the “Government of the People’s Republic of China” has “renounced its demand for war reparations.”  The people of China, or individual Chinese people, might still have claims, and there is also  no mention of waiving claims against Japanese persons or nationals.  Normally, governments only have claims for reparations from other governments.

Moreover, while the U.S. took lots of Japanese property in “compensation” during its occupation of Japan before waiving its further claims, and Korea got the Japanese to pay a cool $300 million in 1965 dollars before settling its claims, the Chinese government got nothing (at least financially) for its agreement to waive its claims.  This seems to further support the idea that some wartime claims still exist.

So read in context, the Chinese plaintiffs have a better case than their (already victorious) Korean brethren.  It is also possible that the Communique (unlike the Peace Treaty) is a non-binding international agreement, which would also not have any direct effect in Chinese courts.  So based on the relevant treaties and agreements, I think the plaintiffs have a decent case here. Inded, it is surprising that no similar lawsuit was filed before in Chinese courts.  The reason probably has more to do with the nature of Chinese courts than the international treaties and agreements relating to this lawsuit.