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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2002 Decided June 27, 2003
No. 01-7169
HWANG GEUM JOO, ET AL.,
APPELLANTS
v.
JAPAN, MINISTER YOHEI KONO, MINISTER OF FOREIGN AFFAIRS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02233)
Michael D. Hausfeld argued the cause for appellants.
With him on the briefs were Agnieszka M. Fryszman, Eliza-
beth H. Cronise, Barry A. Fisher, David Grosz, and Bill
Lann Lee.
Jenny S. Martinez argued the cause for amici curiae Kelly
Askin, et al., in support of appellants. With her on the brief
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
were Michael Tigar, David A. Handzo, and Richard Heide-
man.
Craig A. Hoover argued the cause for appellee. With him
on the brief was Jonathan S. Franklin.
Douglas Hallward–Driemeier, Attorney, U.S. Department
of Justice, argued the cause for amicus curiae United States
of America, in support of appellee. With him on the brief
were Roscoe C. Howard, Jr., U.S. Attorney, and Mark B.
Stern, Attorney, U.S. Department of Justice.
Before: GINSBURG, Chief Judge, and SENTELLE and TATEL,
Circuit Judges.
Opinion for the court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The appellants are 15 women from
China, Taiwan, South Korea, and the Phillippines; they
brought this suit against Japan, seeking money damages for
having been subjected to sexual slavery and torture before
and during World War II. The district court held Japan
immune from suit pursuant to the Foreign Sovereign Immu-
nities Act of 1976, 28 U.S.C. §§ 1330, 1602–1611, because it
had not waived its immunity and the conduct alleged did not
come within the commercial activity exception to the FSIA.
The district court also held the suit was barred under the
political question doctrine.
We affirm the judgment of the district court. Under the
FSIA Japan is entitled to immunity from suit concerning the
pre–1952 acts alleged in this case. We reject the appellants’
argument that violation of a jus cogens norm constitutes a
waiver of sovereign immunity.
I. Background
The appellants allege that between 1931 and 1945 the
Government of Japan abducted, coerced, or deceived them
and a large number of other girls and women from occupied
territories to serve as ‘‘comfort women,’’ a euphemism for sex
slaves, at so-called ‘‘comfort stations’’ near the front lines of
the war, where the women were routinely raped, tortured,
3
beaten, mutilated, and in some cases murdered. The appel-
lants assert that these comfort stations were operated by the
Japanese Army, which charged soldiers a fee for access to the
women.
Only in 1992 did the Government of Japan acknowledge
having had any involvement with the comfort stations, which
it had previously attributed to entrepreneurs who employed
‘‘voluntary prostitutes.’’ In 2000 the appellants filed a com-
plaint in the district court invoking the Alien Tort Statute, 28
U.S.C. § 1350, and alleging that Japan had violated both
positive and customary international law. Japan filed a mo-
tion to dismiss the complaint on the ground of sovereign
immunity, which motion the district court granted.
The district court determined that its jurisdiction over
Japan, if any, must rest solely upon the FSIA. Hwang Geum
Joo v. Japan, 172 F.Supp.2d 52, 56 (D.D.C. 2001). Because
that statute was not enacted until 1976, the court first consid-
ered whether the FSIA applies retroactively to the actions
alleged in this case. Id. at 57–58. The district court did not
reach a conclusion on that issue, however, instead holding
that, even if the FSIA does govern the plaintiffs’ claims, none
of the exceptions to sovereign immunity provided in the FSIA
applies. Id. at 58. The district court rejected the appellants’
arguments that Japan had waived its immunity to suit in the
United States, either explicitly by agreeing to the Potsdam
Declaration – an argument abandoned on appeal – or implicit-
ly by its commission of jus cogens violations, and that Japan’s
activities came within the commercial activity exception to the
FSIA, 28 U.S.C. § 1605(a)(2). Id. at 64. The district court
held in the alternative that the case must be dismissed
because it presents a nonjusticiable political question. Id. at
67.
II. Analysis
The appellants raise two potential sources of district court
jurisdiction over their suit against Japan. First, they argue
the commercial activity exception to the FSIA applies retro-
actively, and Japan’s operation of ‘‘comfort stations’’ was a
4
commercial activity. Next, they contend Japan implicitly
waived its sovereign immunity by violating jus cogens norms.
Then, apparently assuming the courts have jurisdiction over
Japan, they claim the Alien Tort Statute creates a cause of
action for a violation of customary international law. Finally,
the appellants argue the political question doctrine is inappli-
cable to this case.
We hold that the commercial activity exception does not
apply retroactively to events prior to May 19, 1952; we
therefore do not consider whether the ‘‘comfort stations’’
were a ‘‘commercial activity’’ within the meaning of the FSIA.
In any event, the 1951 Treaty of Peace between Japan and
the Allied Powers created a settled expectation on the part of
Japan that it would not be sued in the courts of the United
States for actions it took during the prosecution of World
War II, and the Congress has done nothing that leads us to
believe it intended to upset that expectation. As to whether a
violation of jus cogens norms constitutes an implied waiver of
sovereign immunity pursuant to 28 U.S.C. § 1605(a)(1), our
holding in Princz v. Federal Republic of Germany, 26 F.3d
1166 (D.C. Cir. 1994), is dispositive and remains good law; it
therefore binds this panel of the court, as the appellants
recognize.
We need not decide whether the Alien Tort Statute creates
a cause of action because it clearly does not confer jurisdic-
tion over a foreign sovereign. Nor, because the district court
did not have jurisdiction of this case pursuant to the FSIA,
need we consider whether the political question doctrine
would also bar its adjudication.
A. Retroactive Application of the Commercial Activity
Exception to the FSIA
The FSIA, enacted in 1976, ‘‘provides the sole basis for
obtaining jurisdiction over a foreign state in federal court.’’
Argentine Republic v. Amerada Hess Shipping Corp., 488
U.S. 428, 439 (1989); see Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480, 488 (1983) (FSIA contains ‘‘comprehen-
sive set of legal standards governing claims of immunity in
every civil action against a foreign state or its political
5
subdivisions, agencies, or instrumentalities’’). We have previ-
ously laid out at some length the history of the United States’
approach to foreign sovereign immunity in general, culminat-
ing in the passage of the FSIA, see Princz, 26 F.3d at 1169–
71; here we concentrate specifically upon the commercial
activity exception.
Prior to 1952, the courts of the United States generally
followed the doctrine of ‘‘absolute immunity,’’ see Verlinden,
461 U.S. at 486; Letter from Jack B. Tate, Acting Legal
Advisor, Department of State, to Acting Attorney General
Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. of
State Bull. 984–85 (1952), and in Alfred Dunhill of London,
Inc. v. Cuba, 425 U.S. 682, 711 (1976) (Appendix 2 to opinion
of White, J.); that is, the courts almost always held a foreign
sovereign immune from suit. See Verlinden, 461 U.S. at 486
(‘‘foreign sovereign immunity is a matter of grace and comity
on the part of the United States, and not a restriction
imposed by the Constitution. Accordingly, this Court consis-
tently has deferred to the decisions of the political branches –
in particular, those of the Executive Branch – on whether to
take jurisdiction over actions against foreign sovereigns and
their instrumentalities’’). In 1952 the United States adopted
the doctrine of ‘‘restrictive immunity,’’ as set out in the Tate
Letter and later codified in the FSIA. See Verlinden, 461
U.S. at 486–88. Under that doctrine ‘‘immunity is confined to
suits involving the foreign sovereign’s public acts, and does
not extend to cases arising out of a foreign state’s strictly
commercial acts.’’ Verlinden, 461 U.S. at 487. This distinc-
tion served as the basis for the commercial activity exception
in the FSIA, which allows a suit against a foreign sovereign
to proceed if:
the action is based [1] upon a commercial activity carried
on in the United States by the foreign state; or [2] upon
an act performed in the United States in connection with
a commercial activity of the foreign state elsewhere; or
[3] upon an act outside the territory of the United States
in connection with a commercial activity of the foreign
6
state elsewhere and that act causes a direct effect in the
United States.
28 U.S.C. § 1605(a)(2). In this case the appellants invoke the
first and third conditions, claiming in connection with the
former that Japan operated some comfort stations in two
occupied territories of the United States, namely, Guam and
the Phillippines.
With this background in mind we consider whether 28
U.S.C. § 1605(a)(2) can be applied to events that occurred
prior to 1952. This is a two-step inquiry. First, we must
consider whether the commercial activity exception to the
FSIA has retroactive effect.
A statute has retroactive effect when it takes away or
impairs vested rights acquired under existing laws, or
creates a new obligation, imposes a new duty, or attaches
a new disability, in respect to transactions or consider-
ations already past. As we have repeatedly counseled,
the judgment whether a particular statute acts retroac-
tively should be informed and guided by familiar consid-
erations of fair notice, reasonable reliance, and settled
expectations.
INS v. St. Cyr, 533 U.S. 289, 321 (2001) (internal citations and
quotation marks omitted). If we conclude the statute does
not have a retroactive effect, then our inquiry ends and we
apply the statute to events occurring prior to 1952. If,
however, we determine the statute would have a retroactive
effect, then we ask whether the ‘‘presumption against retroac-
tive legislation that is deeply rooted in our jurisprudence’’ is
overcome because the ‘‘Congress has clearly manifested its
intent’’ to legislate retroactively. Hughes Aircraft Co. v.
United States ex rel. Schumer, 520 U.S. 939, 946 (1997)
(internal citations and quotation marks omitted).
1. Would the commercial activity exception have retroactive
effect?
With respect to the first inquiry, we agree with Japan and
the United States that application of the commercial activity
7
exception to events that occurred prior to 1952 would impose
new obligations upon, come without fair notice to, and upset
the settled expectations of, foreign sovereigns. We further
agree with the United States that the Tate Letter shows the
United States clearly changed its position in 1952 when it
adopted the doctrine of restrictive immunity. Theretofore a
foreign sovereign justifiably would have expected any suit in
a court in the United States–whether based upon a public or a
commercial act–to be dismissed unless the foreign sovereign
consented to the suit.* As the Eleventh Circuit noted in a
case involving a suit against the People’s Republic of China
for payment of defaulted bearer bonds issued by the Imperial
Chinese Government in 1911:
[T]o give the [FSIA] retrospective application to pre–
1952 events would interfere with antecedent rights of
other sovereigns (and also with antecedent principles of
law that the United States followed until 1952). It would
be manifestly unfair for the United States to modify the
immunity afforded a foreign state in 1911 by the enact-
ment of a statute nearly three quarters of a century
later.
Jackson v. People’s Republic of China, 794 F.2d 1490, 1497–
98 (1986); accord Carl Marks & Co., Inc. v. Union of Soviet
Socialist Republics, 841 F.2d 26, 27 (2d Cir. 1988) (per
curiam) (‘‘Such a retroactive application of the FSIA would
affect adversely the USSR’s settled expectation, rising to the
* Appellants argue that absolute immunity was generally accord-
ed only to ‘‘friendly’’ foreign sovereigns in the pre–1952 era, Verlin-
den, 461 U.S. at 486, and that the State Department and courts
would not have accorded Japan such status considering its posture
in World War II. The Executive Branch, however, specifically
decided to resolve all war-related claims against Japan through
inter-governmental negotiations, see infra pages 9–10, and pre-
FSIA courts would have considered themselves bound by a recom-
mendation to accord Japan immunity from suit. See, e.g., Republic
of Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (‘‘It is therefore not
for the courts to deny an immunity which our government has seen
fit to allow, or to allow an immunity on new grounds which the
government has not seen fit to recognize’’).
8
level of an antecedent right, of immunity from suit in Ameri-
can courts’’) (citations omitted). We conclude that, because
Japan had a settled expectation in the 1930s and 1940s that
its commercial activities would not be subject to suit in a
court of the United States, application of the commercial
activity exception of the FSIA to acts occurring then would
clearly be retroactive in effect.
For the contrary implication the appellants invoke a dictum
in Princz. There we considered the possibility that applica-
tion of the FSIA to pre–1952 events might not be of ‘‘genuine-
ly retroactive effect,’’ 26 F.3d at 1170 (internal citations and
quotation marks omitted), because the statute is jurisdictional
rather than substantive in nature and therefore ‘‘would just
remove the bar of sovereign immunity to the plaintiff’s vindi-
cating his rights under [the substantive] law.’’ Id. at 1171.
We based this suggestion upon Landgraf v. USI Film Prod-
ucts, 511 U.S. 244, 274 (1994), quoting Hallowell v. Commons,
239 U.S. 506, 508 (1916), in which the Supreme Court had
remarked that a statute affecting jurisdiction ‘‘takes away no
substantive right, but simply changes the tribunal that is to
hear the case.’’
The Supreme Court has since clarified the situation in
Hughes Aircraft, where the issue was whether a 1986 amend-
ment expanding the jurisdiction of the qui tam provision of
the False Claims Act, 31 U.S.C. § 3730(b), could be applied to
events occurring prior to 1986. 520 U.S. at 941–42. The
Court held that, although the amendment affected only juris-
diction, its application in a suit concerning pre-enactment
events would still have a retroactive effect:
The 1986 amendment TTT does not merely allocate juris-
diction among forums. Rather, it creates jurisdiction
where none previously existed; it thus speaks not just to
the power of a particular court but to the substantive
rights of the parties as well. Such a statute, even though
phrased in ‘‘jurisdictional’’ terms, is as much subject to
our presumption against retroactivity as any other.
Id. at 951 (emphasis in original). The commercial activity
exception to the FSIA, by qualifying what previously had
9
been the absolute immunity of foreign sovereigns, also ‘‘cre-
ates jurisdiction where none previously existed’’ and therefore
affects the substantive rights of the concerned parties.
We recognize the Ninth Circuit has recently held that the
expropriation exception to the FSIA, 28 U.S.C. § 1605(a)(3),
may be applied retroactively to activities of the German and
Austrian governments in the 1930s and 1940s. See Altmann
v. Republic of Austria, 317 F.3d 954 (2002). The Ninth
Circuit reasoned ‘‘that the Austrians could not have had any
expectation, much less a settled expectation, that the State
Department would have recommended immunity as a matter
of ‘grace and comity’ for the wrongful appropriation of Jewish
property.’’ Id. at 965.
The decisions of the Ninth Circuit are, of course, not
binding on this court. Regardless whether we would follow
the Altmann decision, we do not find its reasoning applicable
to this case because of the 1951 Treaty of Peace with Japan
signed by Japan and the Allied Powers. 3 U.S.T. 3169. As
the United States represents in its brief as amicus curiae, the
Treaty ‘‘embodies the foreign policy determination of the
United States that all claims against Japan arising out of its
prosecution of World War II are to be resolved through inter-
governmental settlements.’’ We agree that the Treaty mani-
fests the parties’ intent to resolve matters arising from World
War II without involving the courts of the United States (or
of any signatory nation). In any event, the interpretation of
the Treaty offered by the United States is a reasonable one.
See Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 178,
184–85 (1982) (‘‘Although not conclusive, the meaning attrib-
uted to treaty provisions by the Government agencies
charged with their negotiation and enforcement is entitled to
great weight’’).
Article 14 of the Treaty expressly waives ‘‘all TTT 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’’ in return for a reciprocal waiver of
claims by Japan and the right of the Allied Powers to seize
10
Japanese assets within the Allies’ respective jurisdictions.
The Treaty further provides that Japan would resolve the
war-related claims of other United Nations member states
and their nationals ‘‘on the same or substantially the same
terms,’’ that is, through intergovernmental agreements, see
Art. 26, as in fact it did. See Treaty of Peace Between the
Republic of China and Japan, April 28, 1952, 138 U.N.T.S. 3;
see also Agreement of the Settlement of Problems Concern-
ing Property and Claims on the Economic Co-operation Be-
tween Japan and the Republic of Korea, June 22, 1965, 583
U.N.T.S. 173. As a result, Japan could not have expected to
be sued in a court of the United States by either an Allied
national or a Chinese or Korean national for a claim arising
out of World War II because the Allied Powers had respec-
tively waived the claims of their nationals and expressed a
clear policy of resolving the claims of other nationals through
government-to-government negotiation. As a matter of for-
eign policy it would be odd indeed for the United States, on
the one hand, to waive all claims of its nationals against Japan
and, on the other hand, to allow non-nationals to proceed
against Japan in its courts. Because there was no similar
treaty with Germany or Austria, and therefore no similar
settled expectation, the opinion in Altmann is not relevant to
the present case.
Altmann is not relevant to the present case for a second
reason. In 1949 the State Department had issued a letter
specifically stating that
The policy of the Executive, with respect to claims
asserted in the United States for the restitution of
identifiable property (or compensation in lieu thereof)
lost through force, coercion, or duress as a result of Nazi
persecution in Germany, is to relieve American courts
from any restraint upon the exercise of their jurisdiction
to pass upon the validity of the acts of Nazi officials.
Altmann, 317 F.3d at 966 (quoting Letter from Jack B. Tate,
Acting Legal Advisor, Department of State, to the Attorneys
for the plaintiff in Civil Action No. 31–555 (S.D.N.Y.), reprint-
ed in Bernstein v. N.V. Nederlandsche–Amerikaansche, 210
11
F.2d 375, 375–76 (2d Cir. 1954) (per curiam)). Appellants do
not point out, and we are not aware of, any similar statement
of policy regarding the alleged acts of Japan in this case.
The lack of such a statement not only distinguishes this case
from Altmann; it also gives us all the more reason to believe
the Executive wanted to handle claims against Japan arising
out of World War II solely at the level of inter-governmental
negotiations.
2. Did the Congress clearly intend to legislate retroactively?
Because the commercial activity exception would, if applied
to events before 1952, upset Japan’s settled expectations, we
must determine whether the Congress manifested a clear
intent to overcome the presumption against retroactive legis-
lation. We find no clear indication the Congress intended 28
U.S.C. § 1605(a)(2) to apply to events occurring prior to 1952.
The appellants point out, as we observed obiter in Princz,
that the decision of the Congress, concurrent with the pas-
sage of the FSIA, to delete from 28 U.S.C. § 1332 the
provision for diversity jurisdiction over a suit brought by a
United States citizen against a foreign government might
suggest the FSIA was intended to have retroactive effect–
‘‘[u]nless one is to infer that the Congress intentionally but
silently denied a federal forum for all suits against a foreign
sovereign arising under federal law that were filed after
enactment of the FSIA but based upon pre-FSIA facts.’’ 26
F.3d at 1170. This point remains valid as applied to events
occurring between 1952 and 1976. The Congress’s decision to
amend 28 U.S.C. § 1332 cannot provide a basis, however, for
altering sovereign immunity as it existed prior to 1952. The
most that can be said is that in enacting the FSIA the
Congress intended to incorporate the doctrine of restrictive
immunity into federal law, not that the doctrine be applied to
events that occurred before the United States first adopted it.
The appellants’ last argument for retroactivity is based
upon a sentence in the preamble of the FSIA: ‘‘Claims of
foreign states to immunity should henceforth be decided by
courts of the United States and of the States in conformity
with the principles set forth in this chapter.’’ 28 U.S.C.
12
§ 1602. In Princz we observed that this statement ‘‘suggests
that the FSIA is to be applied to all cases decided after its
enactment, i.e. regardless of when the plaintiff’s cause of
action may have accrued.’’ 26 F.3d at 1170. The preambular
sentence falls far short, however, of stating the ‘‘clear intent’’
of the Congress that the statute be applied retroactively to
events occurring before 1952. We agree with the United
States that the most probable meaning of the sentence is that
the State Department would no longer consider petitions for
sovereign immunity – which it had done routinely until 1952,
when it issued the Tate Letter, and sometimes thereafter, see
Verlinden, 461 U.S. at 487 – because henceforth the question
of immunity would be addressed solely by the courts applying
the new statute.
We conclude that the commercial activity exception of the
FSIA, 28 U.S.C. § 1605(a)(2), does not apply retroactively to
events that predate the Tate Letter. Therefore, we need not
consider whether the acts alleged in this case constitute a
‘‘commercial activity’’ within the meaning of 28 U.S.C.
§ 1605(a)(2).
B. Violation of a Jus Cogens Norm as a Waiver of Sovereign
Immunity
The appellants argue that Japan impliedly waived its sover-
eign immunity by violating jus cogens norms against sexual
trafficking. ‘‘A jus cogens norm is a principle of international
law that is accepted by the international community of States
as a whole as a norm from which no derogation is permitted.’’
Princz, 26 F.3d at 1173 (internal citations and quotation
marks omitted). In Princz, however, this court soundly
rejected that argument when we construed the ‘‘intentionality
requirement implicit in’’ the waiver provision of the FSIA, 28
U.S.C. § 1605(a)(1), to require ‘‘the foreign government’s
having at some point indicated its amenability to suit.’’ 26
F.3d at 1174. And a sovereign cannot realistically be said to
manifest its intent to subject itself to suit inside the United
States when it violates a jus cogens norm outside the United
States. See id.
The appellants therefore argue that we should revisit our
decision in Princz due to intervening developments in inter-
13
national law. There is no need to revisit Princz, however;
the fundamental premise of that decision – that a court
cannot create a new exception to the general rule of immunity
under the guise of an ‘‘implied waiver’’ – remains sound. See
id. at 1174 n.1 (‘‘something more nearly express is wanted
before we impute to the Congress an intention that the
federal courts assume jurisdiction over the countless human
rights cases that might well be brought by the victims of all
the ruthless military juntas, presidents-for-life, and murder-
ous dictators of the world, from Idi Amin to Mao Zedong’’).
No Supreme Court or circuit case has questioned this court’s
interpretation of 28 U.S.C. § 1605(a)(1) with respect to the
violation of a jus cogens norm; indeed, two other circuit
courts have since followed it, see Sampson v. Federal Repub-
lic of Germany, 250 F.3d 1145, 1156 (7th Cir. 2001); Smith v.
Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d
Cir. 1996); and this panel is in any event bound by it.
C. The Alien Tort Statute
The appellants maintain, and Japan denies, that the Alien
Tort Statute, 28 U.S.C. § 1350, creates a cause of action for a
violation of customary international law. Compare, e.g., Kad-
ic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), with Al Odah v.
United States, 321 F.3d 1134, 1145–49 (D.C. Cir. 2003) (Ran-
dolph, J., concurring). We need not reach this question
because, as Japan and the United States point out, whatever
else the Alien Tort Statute might do, it does not provide the
courts with jurisdiction over a foreign sovereign. Only the
FSIA can provide such jurisdiction. See Amerada Hess, 488
U.S. at 438 (‘‘We think that Congress’ decision to deal com-
prehensively with the subject of foreign sovereign immunity
in the FSIA, and the express provision in § 1604 that ‘a
foreign state shall be immune from the jurisdiction of the
courts of the United States and of the States except as
provided in sections 1605–1607,’ preclude a construction of the
Alien Tort Statute that permits the instant suit’’); Verlinden,
461 U.S. at 488. The appellants, in a footnote to their reply
brief, acknowledge what they could hardly deny. Having
found no jurisdictional predicate under the FSIA, we have no
14
need to determine whether the ATS creates a cause of action
for a violation of customary international law.
III. Conclusion
In sum, we hold only three things: (1) the commercial
activity exception to the FSIA does not apply retroactively to
events, such as those alleged in this case, occurring before
May 19, 1952, the date of the Tate Letter; (2) in any event,
the 1951 Treaty created a settled expectation, left undis-
turbed by the Congress, that Japan would not face suit in the
courts of the United States for its actions during World War
II; and (3) a violation of jus cogens norms does not constitute
an implied waiver of sovereign immunity under the FSIA.
Much as we may feel for the plight of the appellants, the
courts of the United States simply are not authorized to hear
their case. The judgment of the district court dismissing this
case is, accordingly,
Affirmed.