Political Question Doctrine

• Author: International Law Group

The following case involves compensation claims by 15 Asian women from China, Taiwan, South Korea and the Philippines whom the Japanese army allegedly forced into sexual slavery before and during the Second World War.

The plaintiffs sued Japan in 2000 under the Alien Tort Claims Act (28 U.S.C. Section 1350) (ATCA). The district court for the District of Columbia dismissed the action based on foreign sovereign immunity and the "political question" doctrine. The U.S. Court of Appeals for the District of Columbia Circuit affirmed. The U.S. Supreme Court granted certiorari, vacated the judgment, and remanded. For further consideration in light of Republic of Austria v. Altmann, 541 U.S. 677 (2004), See 2004 International Law Update 91 & 169. See Hwang Geum Joo v. Japan, 124 S. Ct. 2835 (2004).

At the outset, the Court of Appeals here holds that it does not have to determine subject-matter jurisdiction before applying the political question doctrine. Here, the complaint does present a non-justiciable political question. Thus, the Court affirms the dismissal of the action.

The Court first rejects the plaintiffs' argument that Japan's acts fall under the "commercial activity" exception of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Section 1605(a)(2).

Deeming it unnecessary to make the subject-matter jurisdiction determination of whether Japan is entitled to sovereign immunity, the Court turns to the political question issue.

Here, the treaties that Japan concluded after World War II foreclose the plaintiffs' claims. Article 14 of the 1951 Treaty of Peace between Japan and the Allied Powers [3 U.S.T. 3169], for example, expressly waived all claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in furtherance of the war. Plaintiffs, however, contended that their respective governments were not parties to the 1951 Treaty.

"Even if we assume ... that the 1951 Treaty does not of its own force deprive the courts of the United States of jurisdiction over [the plaintiffs'] claims, it is pellucidly clear [that] the Allied Powers intended that all war-related claims against Japan be resolved through government-to-government negotiations rather than through private tort suits."

"Indeed, Article 26 of the Treaty obligated Japan to enter into 'bilateral' peace treaties with non-allied states 'on the same or substantially the same terms as are provided for in the present treaty,' which indicates...