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Residents of Hiroshima and Nagasaki jointly brought an action against the government of Japan for the damages they and members of their families suffered as a result of the atomic bombings by the United States in August 1945. Among other things, it was alleged that the dropping of the atomic bombs was an unlawful act and that Japan's waiver of claims for damages under domestic and international law against the US gave rise to an obligation for the government of Japan itself to pay damages. The action was dismissed.
The State contended that since neither international customary nor treaty law prohibited the use of atomic bombs at the time, the question of a violation of positive international law did not arise. The Court agreed that the use of nuclear weapons was not expressly prohibited by international law, but it felt that the use a particular weapon was also to be ascertained in light of the principles of international law applicable to the conduct of warfare, in particular the prohibition on indiscriminate bombardment of an undefended city and the prohibition on inflicting unnecessary suffering. Although no generally applicable treaty relative to aerial bombardment was in force at time of the bombing, the Court –on the basis of the Draft Rules of Air Warfare (1923) and, by analogy, on the rules applicable to bombardment by land and naval forces– held that the indiscriminate bombing of undefended cities was unlawful under customary law. It further stated that the principle of distinction between military and non-military objectives had not been nullified by the supposed adoption by the belligerents of a doctrine of total war. The bombings of Nagasaki and Hiroshima, as undefended cities, were thus held to have been unlawful acts.
Ruling that individuals did not have rights under international law unless this was specifically recognized in a treaty, the Court took the view that there was no general way open to an individual to claim damages directly under international law. A claim for damages caused by a State to a national of another State could be based on diplomatic protection, but as it is widely recognized in classical international law, any such claim is in fact the State's own claim for damages suffered by its nationals and not the claim of an individual. Thus Japan could waive, and did waive, all its claims –including those deriving from diplomatic protection– against the US under the peace treaty of 1951. It further held that claims by Japanese nationals under domestic law had also been waived.
1. Atomic bombing and its effect.
(1) There is no dispute between the parties about the following facts. Around 8:15 a.m. on August 6, 1945, a B-29 bomber piloted by Colonel Tibbetts, U.S. Army Air Forces, dropped a uranium bomb on Hiroshima under the orders of U.S. President H.S. Truman, and around 11:02 a.m. on the 9th of the same month, a B-29 bomber piloted by Major Sweeney, U.S. Army Air Forces, dropped a plutonium bomb on Nagasaki under the orders of U.S. President Truman. These bombs (hereinafter referred to as "atomic bombs") exploded in the air. A furious bomb-shell blast with a flash, and both in Hiroshima and in Nagasaki almost all buildings in the cities collapsed. Simultaneously, fire broke out everywhere; and all people who were within a radius of some four kilometers of the epicenter were killed in an instant without distinction of age or sex. A large number of people elsewhere were burned on the skin by the flash, and others, bathed with the radiant rays, suffered from so-called atomic bomb injury. The number of killed and wounded, to say the least, amounted to more than 70,000 and 50,000 respectively, in Hiroshima, and to more than 20,000 and 40,000 respectively, in Nagasaki.
(2) Then, what is the explosion of an atomic bomb? This question is made clear theoretically without any room for doubt, and there are many results of experiment, which are collected into materials by scientists for everyone's use. We will state the principle in brief as follows, by virtue of the "Effect of Nuclear Weapon" by Samuel Glaston (published by the U.S. Atomic Energy Commission). (Handbook of Genshiryoku, Bakudan-hen, in Japanese translation.)
When a free neutron enters into a atomic nucleus of uranium No. 235 or plutonium No. 239, the atomic nucleus is divided in two, and at that moment a large quantity of energy is discharged. Simultaneously, discharged by the reaction of that nuclear fission, more than two neutrons enter into the next atomic nucleus of uranium No. 235 or plutonium No. 239 and cause the reaction of nuclear fission. The neutrons discharged by this second nuclear fission cause the next reaction similarly, and if there is a large quantity of neutrons the reaction of nuclear fission is caused one after another like a chain. In the process, part of the neutrons discharged disperse off, or part are lost by the reaction of atomic nucleus which is not nuclear fission. However, since the loss can be diminished relatively by increasing the quantity of uranium No. 235 or plutonium No. 239, or by reflecting neutrons with reflector placed around, the reaction of nuclear fission is caused one after another like a chain by increasing the quantity of uranium No. 235 or plutonium No. 239 to over the critical quantity; the energy is accumulated and the explosion is caused finally. The time before the explosion is caused is very short, and the energy discharged is tremendous. If a pound of uranium No. 235 or plutonium No. 239 go into full nuclear fission, energy equivalent to the explosion of a 9,000-ton TNT bomb is produced in less than one second. The bombs dropped on Hiroshima and Nagasaki discharge energy equivalent in quantity to 20,000 tons of TNT bombs, but at the present time far stronger weapons which have the energy of megaton class, appear.
(3) Next, we will state in brief the effect caused by the explosion of atomic bombs by virtue of the above-mentioned book.
The first effect comes from the bomb-shell blast. When an atomic bomb explodes in the air, a fire ball composed of gas of very high temperature and very high pressure arises at once and goes up engulfing the surrounding air. From the fire ball, a wave of air (wave from bombardment) of high temperature and high pressure is pushed up at once, and spreads in all directions quickly. When the wave reaches the earth, it destroys buildings and other structures as if an earthquake or typhoon occurred. The range of the effect is very wide. In Nagasaki, houses within 1.4 miles from the epicenter collapsed, those within 1.6 miles suffered rather heavy damage, and even those at the point of 1.7 miles had their roofs and walls damaged.
The second effect comes from the heat rays. When a fire ball is made by the explosion of an atomic bomb in the air, it begins to radiate heat rays composed of heat of high temperature and light. The heat rays include ultraviolate rays as well as visible rays and ultrared rays. The heat rays reach the earth at the same speed as light, set fire to inflammable things on the earth, burn the skin, and cause man's death according to the conditions. In Hiroshima and Nagasaki, 20% to 30% of those killed are presumed killed by burns; and in Nagasaki burns from the heat were recorded as far as 2.5 miles from the epicenter. While the effect of an ordinary high efficient bomb (TNT bomb) is chiefly destruction by bomb-shell blast, the atomic bomb singularly possesses the effect of fire and burn by heat rays, together with destruction by bomb-shell blast.
The third and most peculiar effect comes from the first stage of nuclear radial rays and residual nuclear radioactivity. The radial rays which are radiated within one minute after the explosion of an atomic bomb are composed of neutron, gamma rays, alpha particles and beta particles; and they are called the first stage of nuclear radial rays. Among them, gamma rays and neutron have a flying leg of long range, and, when striking against the human body, they destroy or injure the cells and cause atomic disease (atomic bomb injury) by injury from radial rays. Atomic disease weakens the whole human body, and causes man's death several hours or weeks later; and if he fortunately saves his life a long term is required before his recovery. Also, the radiation of the first stage of nuclear radial rays causes leukaemia, cataract, and abortion of child, has various bad influences on various organs of the human body, and causes hereditarily bad influences.
The radial rays which are radiated chiefly from splinters of the bomb one minute after the explosion, are called the residual nuclear radial rays. These splinters spread wide in the air in the form of corpuscle, cause a radioactive rainfall by sticking to water drops, and flutter down to the earth in the form of the so-called ashes of death. The effect of radial rays on the human body is almost the same as that of the first stage of nuclear radial rays.
(4) Thus, one atomic bomb, even a small-scale bomb like the bombs dropped on Hiroshima and Nagasaki, discharges energy equivalent to a 20,000-ton TNT bomb; and the power of destruction and effect of casualty by the bomb-shell blast are so remarkable that it cannot for a moment be compared with bombs of the past. Moreover, the power of destruction by the bombshell blast is only a part (some 50% of the energy) of the efficiency of atomic bomb; and the effect of incendiary and of casualty by heat rays (some 35% of the energy) has singularity which is not seen in a TNT bomb. We can see the strong power in that 20% to 30% of the deaths in Hiroshima and Nagasaki are presumed to result from burns. However, what strikes us with more terror is the radial rays or radioactivity caused by the atomic bomb; and we have already experienced the terror of atomic disease, leukaemia and various other injuries to the human body, which are caused by radial rays or radioactivity.
Thus, the atomic bomb is far stronger than weapons of the past in power of destruction and casualty. Besides, it has characteristics different from all kinds of weapons of the past in that it inflicts on the human body various kinds of pain and bad influences. We must say that the atomic bomb is really cruel weapon.
2. International law aspects.
(1) There is no doubt that, whether or not an atomic bomb having such a character and effect is a weapon which is permitted in international law as a so-called nuclear weapon, is an important and very difficult question in international law. In this case, however, the point at issue is whether the acts of atomic bombing of Hiroshima and Nagasaki by the United States are regarded as illegal by positive international law at that time. Therefore, it is enough to consider this point only.
(2) As a premise for judging how the above acts of atomic bombing are treated by positive international law, we will begin by considering what international law has existed with regard to war, especially to hostile acts among modern countries since the latter half of 19th Century.
The following are the chronological enumeration of international laws concerning this case:
1868. St. Petersburg Declaration respecting the prohibition of the explosives and incendiaries under 400 grammes.
1899. Convention respecting the Laws and Customs of War on Land (CONVENTION CONCERNANT LES LOIS ET COUTUMES DE LA GUERRE SUR TERRE) , concluded at the First Hague Peace Conference; and its annex, Regulations respecting the Laws and Customs of War on Land (REGLEMENT CONCERNANT LES LOIS ET COUTUMES DE LA GUERRE SUR TERRE) (the so-called Regulations respecting War on Land).
1899. Declaration concerning expanding bullets (the so-called Declaration prohibiting dum-dum bullets).
1899. Declaration concerning projectiles launched from balloons in the air (the so-called Declaration prohibiting aerial bombardment) .
1899. Declaration concerning projectiles diffusing asphyxiating or deleterious gases (the so-called Declaration prohibiting poison gases) .
1907. Convention respecting the Laws and Customs of War on Land (CONVENTION CONCERNANT LES LOIS ET COUTUMES DE LA GUERRE SUR TERRE) , which was concluded in the Second Hague Peace Conference (the revision of the Convention of the same name in the First Hague Peace Conference).
1907. Declaration prohibiting aerial bombardment.
1922. Treaty of Five Countries concerning submarines and poisonous gases.
1923. Draft Rules concerning Air Warfare (Draft Rules of Air Warfare) .
1925. Protocol prohibiting the use in war of asphyxiating, deleterious or other gases and bacteriological methods of warfare (Protocol respecting the prohibition of poison gases, etc.) .
(3) In the above-mentioned laws and regulations, there is no direct provision with regard to the atomic bomb, a new weapon which appeared during World War II.
On the ground of this fact, the defendant State alleges that the question of violation of positive international law does not arise, since there was neither international customary law nor treaty law prohibiting the use of atomic bombs at that time, and the use is not prohibited clearly by positive international law.
Of course, it is right that the use of a new weapon is legal, as long as international law does not prohibit it. However, the prohibition in this case is understood to include not only the case where there is an express provision of direct prohibition but also the case where it is necessarily regarded that the use of a new weapon is prohibited, from the interpretation and analogical application of existing international laws and regulations (international customary laws and treaties). Further, we must understand that the prohibition includes also the case where, in the light of principles of international law which are the basis of the above-mentioned positive international laws and regulations, the use of a new weapons is admitted to be contrary to the principles. For there is no reason why the interpretation of international law must be limited to grammatical interpretation, any more than in the interpretation of municipal law. (See Expert opinions of K. Yasui (Kaoru Yasui) , S. Tabata (Shigejiro Tabata) , and Y. Takano (Yuichi Takano).)
(4) There is also an argument that a new weapon is not an object of regulation of international law at all, but such argument has not a sufficient ground as mentioned above. It is right and proper that any weapon contrary to the custom of civilized countries and to the principles of international law, should be prohibited even if there is no express provision in the laws and regulations. Only where there is no provision in the statutory [international] law, and as long as a new weapon is not contrary to the principles of international law, can the new weapon be used as a legal means of hostility.
Against this argument, some argue as follows. Although there are always many objections in every field against the invention and use of new weapons. They are soon regarded as advanced weapons, and the prohibition of the use of such weapons becomes altogether nonsensical. With the progress of civilization, a new weapon comes to be rather an efficient means of injuring the enemy. This is as shown in history, and the atomic bomb is not an exception.
We cannot deny that in the past, although objections were made by various interests against the appearance of a new weapon because international law was not yet developed, or a hostile feeling was strong against the people of the enemy or pagans, or the advance of general weapons was gradual, new weapons nevertheless came to be regarded as legal with the later advancement of civilization and the development of scientific techniques. This, however, is not always true. This will be clear from the recollection of the existence of the above-mentioned treaties prohibiting the use of dum-dum bullets and poisonous gases. Therefore, we cannot regard a weapon as legal only because it is a new weapon, and it is still right that a new weapon must be exposed to the examination of positive international law.
(5) Next, we will examine the international laws and regulations concerned at that time, with regard to the act of atomic bombing.
First of all, there arises the question whether the act of atomic bombing is admitted by the laws and regulations respecting air raids, since the act is an aerial bombardment as a hostile act by military plane.
No general treaty respecting air raids has been concluded. However, according to customary law recognized generally in international law with regard to a hostile act, a defended city and an undefended city are distinguished with regard to bombardment by land forces, and a defended place and an undefended place are distinguished with regard to bombardment by naval forces. Against the defended city and place, indiscriminate bombardment is permitted, while in the case of an undefended city and place, bombardment is permitted only against combatant and military installations (military objectives) and bombardment is not permitted against non-combatant and non-military installations (non-military objectives) . Any contrary bombardment is necessarily regarded as an illegal act of hostility. (See Expert Opinion of Shigejiro Tabata.) This principle is clear from the following provisions: Article 25 of the Hague Regulations respecting War on Land provides that "the attack or bombardment, by any means whatever, of towns, villages, habitations, or buildings, which are not defended, is prohibited." "The Convention concerning bombardment by naval forces in time of war" (CONVENTION CONCERNANT LE BOMBARDEMENT PAR DES FORCES NAVALES EN TEMPS DE GUERRE), adopted at the Hague Peace Conference of 1907, provides in article 1 that "the bombardment of undefended ports, towns, villages, dwellings, or other buildings by naval forces is prohibited. . . ," and in article 2 that "among the above-mentioned objects against which bombardment is prohibited are not included military works, military or naval establishments, depots of arms or war material, workshops or plants which could be utilized for the needs of a hostile fleet or army, and men-of-war in the harbor. . . ."
(6) With regard to air warfare, there are "Draft Rules of Air Warfare." Article 24 of the Draft Rules provides that: "(1) Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent. (2) Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centers engaged in the manufacture of arms, ammunition, or distinctively military supplies; lines of communication or transportation used for military purposes. (3) The bombardment of cities, towns, villages, dwellings, or buildings not in the immediate neighborhood of the operations of land forces is prohibited. In cases where the objectives specified in paragraph (2) are so situated that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment. (4) In the immediate neighbourhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings, or buildings is legitimate, provided there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population . . . . " Further, article 22 provides for that "aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants, is prohibited." In other words, this Draft Rules of Air Warfare prohibit useless aerial bombardment and provide for the principle of military objective first of all. Then, together with that, the Draft Rules distinguish between places in the immediate neighborhood of the operations of land forces and other places, and provide that indiscriminate aerial bombardment against the former is permitted but that against the latter the aerial bombardment of military objectives only is permitted. In these provisions, stricter expressions are used than in the case of bombardment by land and naval farces, but what they mean is understood to be the same as the distinction between the defended city (place) and undefended city (place). The Draft Rules of Air Warfare cannot directly be called positive law, since they have not yet become effective as a treaty. However, international jurists regard the Draft Rules as authoritative with regard to air warfare. Some countries regard the substance of the Rules as a standard of action by armed forces, and the fundamental provisions of the Draft Rules are consistently in conformity with international laws and regulations, and customs at that time. Therefore, we can safely say that the prohibition of indiscriminate aerial bombardment on an undefended city and the principle of military objective, which are provided for by the Draft Rules, are international customary law, also from the point that they are in common with the principle in land and sea warfare. Further, since the distinction of land, sea, and air warfare is made by the place and purpose of warfare, we think that there is also sufficient reason for existence of the argument that regarding the aerial bombardment of a city on land, the laws and regulations respecting land warfare analogically apply since the aerial bombardment is made on land.
(7) Then, what is the distinction between a defended city and an undefended city? Generally speaking, a defended city is a city resisting any possible occupation attempt by land forces. A city which is far distant from the battlefield, and is not in pressing danger of the enemy's occupation, even if there exist defensive installations or armed forces, cannot be said to be a defended city, since there is no military necessity of indiscriminate bombardment; and in this case the bombardment and aerial bombardment only against military objectives is admitted. On the contrary, against a city resisting a possible occupation attempt by the enemy, indiscriminate bombardment is permitted out of military necessity, since an attack made upon the distinction between military objective and non-military objective has little military effect and cannot accomplish the expected purposes. Thus, we can say that it is a long-standing, generally recognized principle in international law respecting air raids, that indiscriminate aerial bombardment is not permitted on an undefended city and that only aerial bombardment on military objective is permitted. (Expert Opinions of Shigejiro Tabata and Yuichi Takano.)
Of course, it is naturally anticipated that the aerial bombardment of a military objective is attended with the destruction of non-military objectives or casualty of non-combatants; and this is not illegal if it is an inevitable result accompanying the aerial bombardment of a military objective. However, it necessarily follows that in an undefended city, an aerial bombardment directed at a non-military objective, and an aerial bombardment without distinction between military objectives and non-military objectives (the so-called blind aerial bombardment) is not permitted in the light of the above-mentioned principle. (See Expert Opinion of Shigejiro Tabata.)
The power of injury and destruction of the atomic bomb is tremendous as already stated, and even such small-scale atomic bombs as those dropped on Hiroshima and Nagasaki discharge energy equivalent to a 20,000-ton TNT bomb in the past. If an atomic bomb of such power of destruction once explodes, it is clear that it brings almost the same result as complete destruction of a middle-size city, to say nothing of indiscrimination of military objective and non-military objective. Therefore, the act of atomic bombing on an undefended city, setting aside that on a defended city, should be regarded in the same light as a blind aerial bombardment; and it must be said to be a hostile act contrary to international law of the day.
(8) It is a well-know fact that Hiroshima and Nagasaki were not cities resisting a possible occupation attempt by land forces at that time. Further, it is clear as stated above that both cities did not come within the purview of the defended city, since they were not in the pressing danger of enemy's occupation, even if both cities were defended with anti-aircraft guns, etc. against air raids and had military installations. Also, it is clear that some 330,000 civilians in Hiroshima and some 270,000 civilians in Nagasaki maintained homes there, even though there were so-called military objectives such as armed forces, military installations, and munitions factories in both cities. Therefore, since an aerial bombardment with an atomic bomb brings the same result as a blind aerial bombardment from the tremendous power of destruction, even if the aerial bombardment has only a military objective as the target of its attack, it is proper to understand that an aerial bombardment with an atomic bomb on both cities of Hiroshima and Nagasaki was an illegal act of hostility as the indiscriminate aerial bombardment on undefended cities.
(9) Against the above conclusion, there is a counter-argument that the war of the day was the so-called total war, in which it was difficult to distinguish between combatant and non-combatant, and between military objective and non-military objective, and that the principle of military objective was not necessarily carried through during World War II.
The concept of military objective is prescribed in various expressions by the above-mentioned treaties, but the content is not always fixed and changes with time. It is difficult to deny that the scope is gradually spreading under the form of total war. For all the above reasons, however, we cannot say that the distinction between military objective and non-military objective has gone out of existence. For example, schools, churches, temples, shrines, hospitals and private houses cannot be military objectives, however total the war may be. If we understand the concept of total war to mean that all people who belong to a belligerent are more or less combatant, and all production means production injuring the enemy, there arises the necessity to destroy the whole people and all the property of the enemy; and it becomes nonsensical to distinguish between military objective and non-military objective. However, the advocacy of the concept of total war in recent times has the intent of pointing out the fact that the issue of a war is not decided only by armed forces and weapons, but that the other factors, that is to say, chiefly economic factors like source of energy, materials, productive capacity of industry, food, trade, etc., or human factors like population, man-power, etc., have a far-reaching control on the war method and war potential. The concept of total war is not advocated in such a vague meaning as stated above, and there was no actual example of such situation. Accordingly, it is wrong to say that the distinction between military objective and non-military objective has gone out of existence because of total war. (See Expert Opinions of Shigejiro Tabata and Yuichi Takano.)
(10) During world War II, aerial bombardment was once made on the whole place where military objectives were concentrated, because it was impossible to confirm an individual military objective and attack it where munitions factories and military installations were concentrated in comparatively narrow places, and where defensive installations against air raids were very strong and solid; and there is an opinion regarding this as legal. Such aerial bombardment is called the aerial bombardment on an objective zone, and we cannot say that there is no room for regarding it as legal, even if it passes the bounds of the principle of military objective, since the proportion of the destruction of non-military objective is small in comparison with the large military interests and necessity. However, the legal principle of the aerial bombardment on an objective zone cannot apply to the city of Hiroshima and the city of Nagasaki, since it is clear that both cities could not be said to be places where such military objectives concentrate.
(11) Besides, the atomic bombing on both cities of Hiroshima and Nagasaki is regarded as contrary to the principle of international law that the means which give unnecessary pain in war and inhumane means are prohibited as means of injuring the enemy. (See Expert Opinion of Shigejiro Tabata.)
In the argument of this point, it goes without saying that such an easy analogy that the atomic bomb is necessarily prohibited since it has characteristics different from former weapons in the inhumanity of its efficiency, is not admitted. For international law respecting war is not formed only by humane feelings, but it has as its basis both military necessity and efficiency and humane feelings, and is formed by weighing these two factors. With regard to this point, the doctrine mentions as its type the provision in the St. Petersburg Declaration of 1868, which prohibits the use of projectiles under 400 grammes which are either explosive or charged with combustible or inflammable substances, and explains the reason as follows: These projectiles are so small that they have only such a power as to kill and wound one officer or man, but for that effect an ordinary bullet will do, and there is no need to use inhumane weapons which have no more profit. On the other hand, however great the inhumane result of the use of a weapon may be, the use of the weapon is not prohibited by international law, if it has a great military efficiency.
The issues in this sense are whether atomic bombing comes within the purview of "the employment of poison or poisonous weapons" prohibited by article 23(a) of the Hague Regulations respecting war on land, and of each forbidden provision of the "Declaration prohibiting each the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases" (DECLARATION CONCERNANT L'INTERDICTION DE L'EMPLOI DE PROJECTILES QUI ONT POUR BUT UNIQUE DE RÉPANDRE DES GAZ ASPHYXIANTS OR DÉLÉTÈRES) of 1899, and the "Protocol prohibiting the use in war of asphyxiating, poisonous and other gases, and bacteriological methods of warfare" of 1925. With regard to this point, there is not an established theory among international jurists in connection with the difference of poison, poison-gas, bacterium, etc. from atomic bombs. However, judging from the fact that the St. Petersburg Declaration declares that ". . . considering that the use of a weapon which increases uselessly the pain of people who are already placed out of battle and causes their death necessarily is beyond the scope of this purpose, and considering that the use of such a weapon is thus contrary to humanity. . ." and that article 23(e) of the Hague Regulations respecting war on Land prohibits "the employment of such arms, projectiles, and material as cause unnecessary injury," we can safely see that besides poison, poison-gas and bacterium the use of the means of injuring the enemy which causes at least the same or more injury is prohibited by international law. The destructive power of the atomic bomb is tremendous, but it is doubtful whether atomic bombing really had an appropriate military effect at that time and whether it was necessary. It is a deeply sorrowful reality that the atomic bombing on both cities of Hiroshima and Nagasaki took the lives of many civilians, and that among the survivors there are people whose lives are still imperilled owing to the radial rays, even today 18 years later. In this sense, it is not too much to say that the pain brought by the atomic bombs is severer than that from poison and poison-gas, and we can say that the act of dropping such a cruel bomb is contrary to the fundamental principle of the laws of war that unnecessary pain must not be given.
3. Municipal law aspects.
As stated above in detail, the act of atomic bombing was contrary to international law, but it is the next question whether it was contrary to the municipal laws of Japan and the United States of America at the same time.
(1) Viewing Japanese law first of all, the prewar Imperial Constitution of Japan at the time when the atomic bombs were dropped, has no express provision with regard to the question what effect international law has in municipal law. However, it was understood that international customary law has its effect in municipal law and that treaties become effective as municipal law by promulgation. Therefore, there is sufficient room for understanding that the act of atomic bombing is also contrary to municipal law, since it is contrary to international law.
(2) In the United States, it is clear that treaties have the effect as the supreme law of the land in accordance with article 6, paragraph 2 of the Constitution of the United States, and it is understood that international customary law is part of the law of the country. (See Expert Opinion of Shigejiro Tabata.) Such being the case, there seems to be a .fair possibility that an act contrary to international law comes to be contrary to municipal law.
(3) However, there is little meaning in the further abstract consideration of the question whether the acts of atomic bombing were contrary to the municipal laws of Japan and the United States. For the existence of the act contrary to municipal law, and the question whether the responsibility for the violation can be placed on some person and before what court the suit can be instituted in order to enforce the responsibility are different questions which must be considered separately. The question in this case is not concretely solved until these points are considered. This point will be commented on later together when the question of responsibility for acts contrary to international law is dealt with.
4. Claims for damages of the sufferers.
(1) It is an established principle of international law that when a belligerent causes damage to the other belligerent by illegal acts of hostility in international law, the belligerent must compensate the other belligerent for the damage.
Since it is a well-known fact that the atomic bombing of Hiroshima and Nagasaki was a regular act of hostility taken by an airplane of the U.S. Army Air Forces, and that Japan suffered damage by the atomic bombing, it goes without saying that Japan has a claim for damages against the Unites States in international law. In these cases, however, the person who ordered that act does not assume responsibility as an individual. Accordingly, it is understood that compensation for damage cannot be claimed in international law against U.S. President Truman, who ordered the atomic bombing. It is a principle of international law that the State must directly assume responsibility for acts taken by a person as a state organ, and that the person who holds the position as a state organ does not assume responsibility as an individual.
(2) Then, has the individual who suffered damage by the illegal act in international law a claim for damages in accordance with international law against the country which has caused the damage?
In the argument of this point, we must first of all consider the question whether an individual can be the subject of rights in international law. Traditional thinking limits the subject of rights in international law to the state, either because international law is the law which regulates the relations of the states, or because international law is formed on the basis of the common consent of the states. However, because international law has regulated chiefly the relations of the state hitherto, it does not necessarily follow that an individual does not become the subject of rights in international law; and the subject of forming international law is not always related to the subject of rights in international law. Further, there is a view that an individual cannot become the subject of rights because international law does not always have effect within a country. This view is, however, not proper, since it is possible in theory for international law to recognize the individual rights even when international law has no effect within a country. Thus, even if we argue the essential qualities of international law, it does not draw out the conclusion that the subject of rights in international law is necessarily limited to a state.
(3) Then, on the contrary, can the individual always be the subject of rights in international law? The standing of the individual in international law does not come to question until international law (chiefly treaties) provides with regard to the rights and duties of the individual. In this case, as doctrine of international law, there are the following two opposing views: One is the view that if only rights and duties are stipulated in international law, the individual acquires certain rights and duties in international law by the existence of the stipulation alone. The other is the view that, unless there is a possibility that the individual can assert his rights and enforce his duties in his name in international law, it cannot be said that he acquires rights and duties in international law. This opposition arises from a difference in understanding the subject of international law and in its turn the general nature of law. Generally speaking, the subject of a right in law is a person, who has the possibility of asserting his rights and of being bound by his duties in his own name. Accordingly, in order for a person to be a subject of a right in international law, there must be the possibility for him to assert his right and be bound by his duties in his name. Therefore, from this viewpoint, the latter of the above two views is right.
Next, we will examine the treaties recognizing the standing of the individual in international law in this meaning. As examples in which the individual's right of instituting suit is directly permitted, we can mention the economic clauses of the Treaty respecting the establishment of the International Prize Court, adopted at the Hague Peace Conference of 1907; the Treaty respecting the establishment of the Central American Court of Justice, concluded by five Central American countries in 1907; and the Versailles Treaty and the other peace treaties after World War I (Treaty of St. Germain-en-Laye, Treaty of Trianon, Treaty of Lausanne and Treaty of Neuilly-sur-Seine) .
The Treaty respecting the establishment of the International Prize Court was not ratified and did not become a positive international law. Also, it provided for a special court which would have been an organ for appeal in case of dissatisfaction over the examination of the national prize courts. The Treaty respecting the establishment of the Central American Court of Justice was only effective for ten years in five Central American countries. Therefore, these two treaties are not adequate in the consideration of the present general questions.
On the other hand, the Versailles Treaty and other peace treaties provided for the establishment of mixed arbitral tribunals to deal with suits concerning property rights of the nationals of the countries involved in World War I. In the case of the Versailles Treaty, nationals of the Allied and Associated Powers were permitted to institute suits before mixed arbitral tribunals directly against the German Government for compensation for damage suffered by their properties, rights, and interests within German territory as a result of the application of extraordinary wartime steps or measures of transfer by the German Government. Moreover, it was stipulated that they could institute suits before mixed arbitral tribunals in their own names entirely independent of the intention of their home governments. Accordingly, in this case, we can say that individuals were the subject of rights in international law.
So, there is an argument that, by this example, individuals have generally been the subject of rights in international law; but this argument is not right. The reason is that, in the above case, the object of compensation was limited to damage to properties, rights, or interests within German territory resulting from the wartime application of extraordinary steps or measures of transfer by the German Government, and that the compensation did not cover all damages caused by the conduct of war by Germany. Another reason is that the above claim for damages was limited to nationals of the Allied and the Associated Powers, and nationals of the defeated countries did not have the right to bring action. Further, the mixed arbitral tribunals were ad hoc tribunals established individually by each victor country and Germany. The most important thing is that, they were all stipulated by and based on concrete treaties as stated above. Therefore, it is not enough to say on such ground that the rights of individuals in international law have been generally recognized and that the procedure of asserting such rights in international law has been guaranteed. It is still proper to understand that individuals are not the subject of rights in international law, unless it is concretely recognized by treaties as seen in the above example of mixed arbitral tribunals.
(4) The plaintiffs allege that an individual has a claim in international law, since the right of the individual is exercised by the home government. However, if the purport is that the state exercise the right in international law in the citizen's name as his agent for his sake, there is no such example in international law and there is no reason in international law to recognize this.
Indeed, international law permits a state to demand from the other country reparations for damage caused to its nationals, in the name of the state for the sake of its nationals. This is called diplomatic protection, as is generally known. Diplomatic protection is, however, an act based on the state's own right of diplomatic protection and the individual's claim itself is not asserted by this act. The claim for damages is asserted as the state's own claim. Whether the state exercises the right of diplomatic protection is decided by the state in its own judgment, and the state exercises the rights in its name. It does not follow that the state acts on behalf of its nationals. Borchard and others call this phenomenon "immersion of the individual's claim into the state's claim." In this case, the state is not interfered with at all by the nationals in regard to how and what the state claims, and how it solves the question of the claim. With regard to the amount of compensation which the state claims, it does not always claim the compensation for the whole damage caused to the nationals. Further, the state can determine freely by its intention how the state distributes the compensation thus obtained. Therefore, in this case, we must say that there is no room for regarding the individual as the subject of right in international law.
(5) As understood from the above, there is no general way open to an individual who suffers damages from an illegal act of hostility in international law, to claim damages in international law. Accordingly, the possibility left to the individual comes to the question whether he can ask for redress before a domestic court of one or both belligerents.
Redress before a Japanese court, however, cannot be asked for. The sufferers must bring an action before a Japanese court against the other country as defendant, in this case, against the United States as defendant, but it is an established principle in international law that a country is not subject to the jurisdiction of the civil courts of other countries; and this principle is also recognized by Japan. (Daishinin (Court of Cassation), (Case No. (ku) 218 of 1928, Decision of December 28, 1928, 7 Minshu (Collection of Judicial Precedents Concerning Civil Affairs) 1128.)
(6) Then, is redress before the court of the United States permitted?
With regard to this point, we must examine such questions in adjective law as whether the court of the United States has jurisdiction, and whether the plaintiffs in this case have the right to bring an action as foreigners, and also in substantive law. However, if we state the conclusion to the question is substantive law, the plaintiffs, in the law of the United States, cannot assert responsibility for the illegal act against the United States or President Truman.
In the law of the United States, the legal theory of so-called Sovereign Immunity has consistently applied since the 19th Century. This is the principle that the state does not assume responsibility of compensation for illegal acts committed by public servants in the performance of duty, like the principle in England that the "King can do no wrong." With regard to this legal theory of Sovereign Immunity, it is said that the theory is based on political measures imposed out of necessity, or it is explained that all the nationals improperly committed an illegal act, or that what the state does must be legal. Thus, the theory is rationalized by precedent and doctrine. The legal theory of Sovereign Immunity applies not only to the state but also to the highest executive organs of the state, including the presidency, and it is understood that the persons of these organs do not assume responsibility as individuals for their illegal acts committed in the performance of their duties. As alleged by the plaintiffs, the English legal theory that the "King can do no wrong" was not adopted as such by the United States, and it is said that the reason why the theory of Sovereign Immunity which is almost the same as the English theory, has come to apply in the United States is not well known. There is, however, no room for denying that the theory of Sovereign Immunity generally applies in the United States. However great the atomic bomb may be in its destructive power as alleged by the plaintiffs, it cannot possibly be regarded that the atomic bomb has crushed off the theory of Sovereign Immunity.
After World War II, the United States has come to admit the responsibility of compensation by the state for illegal acts by enacting the Federal Tort Claims Act. The Act, however, has many exceptions; and it stipulates that the state does not assume responsibility when the administrative organs of the state perform discretionary duties, and that the state does not assume responsibility for hostile acts of land and sea forces. The Act also excludes claims arising in foreign countries. Accordingly, for the reasons stated above, we can only say that the sufferers can not claim compensation for damages for torts by the United States or President Truman, in accordance with the law of the United States. It is a self-evident truth that this conclusion is the same whether a suit is instituted at the time of the atomic bombing or after the enactment of the Federal Tort Claims Act.
(7) The above concerns the case where an individual exercises a claim in international law before the courts of Japan or the United States. The above argument will also apply in the case where an individual sues for damages before the courts of Japan or the United States for the reason that an illegal act is constituted under the law of Japan or the United States. Therefore, although there is no need to repeat it, the conclusion is that, with regard to a claim under municipal law, the individual cannot ask for redress before the courts of Japan or the United States.
5. Waiver of claims in accordance with the Japanese Peace Treaty.
(1) The greater part of the conclusion of this suit will be drawn from the above. However, all questions have not yet been examined. It requires further examination as to how the rights and duties arising out of the state of war between Japan and the United States are dealt with by the treaty between both countries, and how the individual's claim in international law is stipulated in the treaty.
(2) Article 19(a) of the Peace Treaty between the Allied Powers and Japan ("the ,Japanese Peace Treaty"), concluded in San Francisco on September 8, 1951, effective April 28, 1952, provides that: "Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war, and waives all claims arising from the presence, operations or actions of forces or authorities of any of the Allied Powers in Japanese territory prior to the coming into force of the present Treaty."
It is clear that the "claims of Japan" which were waived by this provision includes all claims which Japan had in accordance with treaties and international customary laws. Accordingly, claims for compensation for damages caused to Japan by illegal acts of hostility, for example, are necessarily included.
(3) Then, what will the waived "claims of Japan" indicate?
The defendant State alleges that the State of Japan cannot waive the rights of its nationals, since the State of Japan and Japanese nationals are different subjects of law; and accordingly what was waived was nothing but the right of diplomatic protection of Japan.
This view is, however, not right. The right of diplomatic protection is an inherent right of a state as already stated. Accordingly, it is included in the "claims of Japan" in article 19 (a). Further, while the "claims of Japanese nationals," as a general expression, are understood to be substantive rights, the right of diplomatic protection is understood to be an adjective right, strictly speaking, even though there are many cases where the state invokes the right of diplomatic protection, taking with its own nationals' rights in the law of the other state against that state.
(4) There is a view that a state cannot waive the claims of nationals who are different subjects of law from the state. It is exactly as the above, if claims of nationals mean rights in international law. However, it must be said that the state can waive its nationals' claims in municipal law. The state has the sovereign right to create, change, and extinguish its nationals' rights and duties in accordance with the regular procedures of municipal law; and it is possible in legal theory for a state to promise to waive its nationals' rights of the above nature against another state, setting aside the question whether the promise is right or wrong. This is clear from the fact that Japan recognizes in article 14(a)2(I) of the Japanese Peace Treaty that the Allied Powers shall have the right to dispose of property of Japanese nationals within the territory of the Allied Powers (so-called overseas assets). And it will be easily understood that the object of waiver in this case is the rights of nationals in municipal law.
(5) Such being the case, it will be natural to understand that the "claims of Japanese nationals" waived by article 19(a) are the claims of Japanese nationals in the municipal laws of Japan and of the Allied Powers, against the Allied Powers and their nationals. The expert opinions of Kaoru Yasui, Shigejiro Tabata and Yuichi Takano unanimously conclude that the "claims of Japanese nationals" are the rights of Japanese nationals themselves. Further, the Japanese Government also regarded them as the rights of Japanese nationals. This is clear from the fact that Kumao Nishimura (then Director of Treaties Bureau, Ministry of Foreign Affairs), government delegate in the ad hoc Committee on the Peace Treaty and the Security Treaty between Japan and the United States of America, House of Representatives, gave an explanation to the above effect in the article-by-article explanation of the Japanese Peace Treaty.
(6) The plaintiffs allege that an individual's claim in international law is included in the "claims of Japanese nationals."
However, as already stated, an individual's claim in international law is not recognized until it is provided for by a treaty and the right of bringing action and other procedural guarantees by which the individual can assert the claim have come into existence internationally. Such a procedural guarantee undoubtedly is not recognized by the Japanese Peace Treaty. Also, if we understand, as alleged by the plaintiffs, that the claims of Japanese nationals in international law are included in the Japanese Peace Treaty, we must conclude that claims for damages by Japanese nationals in international law are admitted for the first time by this treaty and that simultaneously the claims are waived by the same treaty. It is, however, unnatural to understand that such special technique was used in the treaty; and there was no necessity to use such a technique. There is no example where individual claims for damages were recognized in customary international law at any time prior to the Japanese Peace Treaty. Accordingly, it does not follow that the Japanese Peace Treaty admitted Japanese nationals' claims for damages in international law and accordingly made them the object of a waiver. What were waived in article 19 (a) of the Japanese Peace Treaty were Japanese nationals' claims under the municipal laws of Japan and of the Allied Powers.
6. Defendant's responsibility for waiver of claims.
(1) The plaintiffs allege that the defendant State lost the plaintiffs' claims for damages in international law and municipal law against the United States and President Truman by waiving them. It is, however, as stated above, that claims in international law were not the object of waiver in the above-mentioned provisions; and it is as already explained that there is no admitting the existence of even the claims in municipal law which were made the object of waiver. Such being the case, it follows that the plaintiffs had no rights to lose, and accordingly there is no reason for asserting the defendant's legal responsibility therefore.
(2) Everyone has a whole-hearted compassion for those who suffered damages by the dropping of the atomic bombs, which possess the largest-scale and strongest destructive power in human history. It is a common desire of mankind to totally abolish war, or at least to limit it to the minimum and confine damage to the minimum; and for that purpose, we mankind, are persevering in our efforts day and night.
However, if a war unfortunately occurs, it goes without saying that every country is required to minimize damage and to protect its nationals. In this light, the question of State redress on the basis of absolute liability will arise necessarily for war calamity. Actually, there is the "Law respecting Medical Treatment and the Like for Sufferers of the Atomic Bomb" which is related to this case; but it is clear that a law of this scale cannot possibly be sufficient for the relief or rescue of the suffers of the atomic bombs. The defendant State caused many nationals to die, injured them, and drove them to a precarious life by the war which it opened on its own authority and responsibility. Also, the seriousness of the damage cannot compare a moment with that of the general calamity. Needless to say the defendant state should take sufficient relief measures in this light.
That is, however, no longer the duty of the Court, but a duty which the Diet or legislature or the Cabinet or the executive must perform. Moreover, it is by such a procedure that relief measures can be taken not only by the parties to this suit, but also by general sufferers of the atomic bombs: and there lies the raison d'être of the legislature and the administration. It cannot possibly be understood that the above is financially impossible in Japan, which has achieved a high degree of economic growth after the war. We cannot see this suit without regretting the political poverty.
For the above reasons, the plaintiffs' claims in this suit are ruled improper, without considering the other issues; and we can only dismiss the plaintiffs' claims on the merits. Accordingly, applying articles 89 and 93 of the Code of Civil Procedure to the costs of litigation, we decide as in the text of the judgment above.
Civil Affairs Division No. 24, Tokyo District Court.
Presiding Judge T. Koseki (Toshimasa Koseki), Judge Y. Mibuchi (Yoshiko Mibuchi), Judge A. Takakuwa (Akira Takakuwa).
References: International Treaties and Documents
St-Petersburg Declaration 1868 ;
Hague Convention IV 1907 (Annexed Regulations) : Art. 23 and 25 ;
Hague Convention IX 1907: Art. 1 and 2 ;
Draft Rules of Air Warfare 1923 : Art 24 .