(dissenting).
I cannot agree with the majority for these reasons: The Treaty of Friendship entered into between the United States and Japan puts access to the courts on a reciprocal basis. Section 1 of Article IV of the Treaty provides that “nationals * * * of either party shall be accorded national treatment * * * with respect to access to the courts * *
National treatment is defined in section 1 of Article XXII of the Treaty as follows:
“The term 'national treatment’ means treatment accorded within the territories of a party upon terms no less favorable than the treatment accorded therein, in like situations, to nationals, companies, * * *, as the case may be, of such party.”
This, it seems to me, must mean that each government shall give equal treatment to the other with respect to access to the respective courts. As a matter of fact, this would appear to be in complete harmony with the primary purpose of the statute which permits a foreign citizen or corporation to sue the United States in cases wherein a foreign government accords to citizens of the United States the right to prosecute claims against their government in its courts. In other words, “equal treatment” would seem to be the controlling factor in both the Treaty and the statute.
Under these circumstances, the burden would be on the plaintiffs to prove that a citizen of the United States could prosecute a claim for breach of contract against the Japanese Government. This, in my opinion, the plaintiffs have failed to do. No statute or article of the constitution of Japan has been put in evidence from which this court could conclusively find a provision for suits in breach of contract. On the contrary, the constitution of Japan quite clearly shows that only suits in tort are cognizable by the courts of Japan.
Consequently, I would hold that section 2502 requires that United States citizens have the right to sue the Japanese Government in contract in its courts as a condition to maintenance of plaintiffs’ suits in contract in this court. Otherwise, a Japanese citizen would have greater rights in the United States courts than those accorded them in their own country.
I would overrule the Brodie and Marcos cases cited in the majority opinion to the extent that they are in conflict with my views.