Professional Documents
Culture Documents
The complainants filed a claim under the Alien Tort Statute (ATS) grounded in the
prohibitions of the Nuremberg Code, the World Medical Association's Declaration of
Helsinki, the guidelines of the Council for International Organisations of Medical
Services and the International Covenant on Civil and Political Rights which
categorically forbid medical experimentation without consent.
Court reasoning:
The Court held that the three-part test to determine whether the restriction was an
obligation under customary international law was satisfied. The test required the
restriction to be (1) universal in nature; (2) specific and definable; and (3) of
mutual concern. The Court gave the following reason for each strand of the test:
(1) The legal principles of the Nuremberg Code and the ICCPR are examples of the
normality and universality of this restriction;
(2) The allegations stated that Pfizer carried out these experiments knowingly and
purposefully which went beyond a simple isolated case of failing to obtain consent,
KAZUHIRO HASEGAWA and NIPPON ENGINEERING CONSULTANTS CO., for one do not always provide the necessary “significant contacts” for the other. The
LTD., vs MINORU KITAMURA question of whether the law of a state can be applied to a transaction is different
from the question of whether the courts of that state have jurisdiction to enter a
G.R. No. 149177 judgment.
November 23, 2007
In this case, only the 1st phase is at issue—jurisdiction. Jurisdiction, however, has
FACTS: various aspects. For a court to validly exercise its power to adjudicate a
controversy, it must have jurisdiction over the plaintiff/petitioner, over the
Nippon Engineering Consultants (Nippon), a Japanese consultancy firm providing defendant/respondent, over the subject matter, over the issues of the case and,
technical and management support in the infrastructure projects national in cases involving property, over the res or the thing w/c is the subject of the
permanently residing in the Philippines. The agreement provides that Kitamaru was litigation.In assailing the trial court's jurisdiction herein, Nippon is actually referring
to extend professional services to Nippon for a year. Nippon assigned Kitamaru to to subject matter jurisdiction.
work as the project manager of the Southern Tagalog Access Road (STAR) project.
When the STAR project was near completion, DPWH engaged the consultancy Jurisdiction over the subject matter in a judicial proceeding is conferred by the
services of Nippon, this time for the detailed engineering & construction supervision sovereign authority w/c establishes and organizes the court. It is given only by law
of the Bongabon-Baler Road Improvement (BBRI) Project. Kitamaru was named as and in the manner prescribed by law. It is further determined by the allegations of
the project manger in the contract. the complaint irrespective of whether the plaintiff is entitled to all or some of the
claims asserted therein. To succeed in its motion for the dismissal of an action for
Hasegawa, Nippon’s general manager for its International Division, informed lack of jurisdiction over the subject matter of the claim, the movant must show that
Kitamaru that the company had no more intention of automatically renewing his the court or tribunal cannot act on the matter submitted to it because no
ICA. His services would be engaged by the company only up to the substantial lawgrants it the power to adjudicate the claims.
completion of the STAR Project. Kitamaru demanded that he be assigned to the
BBRI project. Nippon insisted that Kitamaru’s contract was for a fixed term that had In the instant case, Nippon, in its MTD, does not claim that the RTC is not properly
expired. Kitamaru then filed for specific performance & damages w/ the RTC of Lipa vested by law w/ jurisdiction to hear the subject controversy for a civil case for
City. Nippon filed a MTD. specific performance & damages is one not capable of pecuniary estimation & is
properly cognizable by the RTC of Lipa City.What they rather raise as grounds to
Nippon’s contention: The ICA had been perfected in Japan & executed by & between question subject matter jurisdiction are the principles of lex loci
Japanese nationals. Thus, the RTC of Lipa City has no jurisdiction. The claim for celebrationis and lex contractus, and the “state of the most significant relationship
improper pre-termination of Kitamaru’s ICA could only be heard & ventilated in the rule.” The Court finds the invocation of these grounds unsound.
proper courts of Japan following the principles of lex loci celebrationis & lex
contractus. Lex loci celebrationis relates to the “law of the place of the ceremony” or the law of
the place where a contract is made. The doctrine of lex contractus or lex loci
The RTC denied the motion to dismiss. The CA ruled hat the principle of lex loci contractusmeans the “law of the place where a contract is executed or to be
celebrationis was not applicable to the case, because nowhere in the pleadings was performed.” It controls the nature, construction, and validity of the contract and it
the validity of the written agreement put in issue. It held that the RTC was correct may pertain to the law voluntarily agreed upon by the parties or the law intended
in applying the principle of lex loci solutionis. by them either expressly or implicitly. Under the “state of the most significant
relationship rule,” to ascertain what state law to apply to a dispute, the court should
ISSUE: determine which state has the most substantial connection to the occurrence and
the parties. In a case involving a contract, the court should consider where the
Whether or not the subject matter jurisdiction of Philippine courts in civil cases for contract was made, was negotiated, was to be performed, and the domicile, place of
specific performance & damages involving contracts executed outside the country business, or place of incorporation of the parties.This rule takes into account several
by foreign nationals may be assailed on the principles of lex loci celebrationis, lex contacts and evaluates them according to their relative importance with respect to
contractus, “the state of the most significant relationship rule,” or forum non the particular issue to be resolved.
conveniens.
Since these 3 principles in conflict of laws make reference to the law applicable to a
HELD: dispute, they are rules proper for the 2nd phase, the choice of law. They determine
which state's law is to be applied in resolving the substantive issues of a conflicts
NO. In the judicial resolution of conflicts problems, 3 consecutive phases are problem. Necessarily, as the only issue in this case is that of jurisdiction, choice-of-
involved: jurisdiction, choice of law, and recognition and enforcement of judgments. law rules are not only inapplicable but also not yet called for.
Jurisdiction & choice of law are 2 distinct concepts.Jurisdiction considers whether it
is fair to cause a defendant to travel to this state; choice of law asks the further Further, Nippon’s premature invocation of choice-of-law rules is exposed by the fact
question whether the application of a substantive law w/c will determine the merits that they have not yet pointed out any conflict between the laws of Japan and ours.
of the case is fair to both parties. The power to exercise jurisdiction does Before determining which law should apply, 1st there should exist a conflict of laws
notautomatically give a state constitutional authority to apply forum law. While situation requiring theapplication of the conflict of laws rules. Also, when the law of
jurisdiction and the choice of the lex foriwill often coincide, the “minimum contacts”
a foreign country is invoked to provide the proper rules for the solution of a case,
the existence of such law must be pleaded and proved.
It should be noted that when a conflicts case, one involving a foreign element, is
brought before a court or administrative agency, there are 3 alternatives open to
the latter in disposing of it: (1) dismiss the case, either because of lack of
jurisdiction or refusal to assume jurisdiction over the case; (2) assume jurisdiction
over the case and apply the internal law of the forum; or (3) assume jurisdiction
over the case and take into account or apply the law of some other State or
States. The court’s power to hear cases and controversies is derived from the
Constitution and the laws. While it may choose to recognize laws of foreign nations,
the court is not limited by foreign sovereign law short of treaties or other
formalagreements, even in matters regarding rights provided by foreign sovereigns.
Neither can the other ground raised, forum non conveniens, be used to deprive the
RTC of its jurisdiction. 1st, it is not a proper basis for a motion to dismiss because
Sec. 1, Rule 16 of the Rules of Court does not include it as a ground. 2nd, whether
a suit should be entertained or dismissed on the basis of the said doctrine depends
largely upon the facts of the particular case and is addressed to the sound discretion
of the RTC. In this case, the RTC decided to assume jurisdiction. 3rd, the propriety
of dismissing a case based on this principle requires a factual determination; hence,
this conflicts principle is more properly considered a matter of defense.
SMALL v. UNITED STATES the statute’s legislative history indicates no intent to reach beyond domestic
convictions. Although the statutory purpose of keeping guns from those likely to
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT become a threat to society does offer some support for reading §922(g)(1) to
No. 03—750.Argued November 3, 2004–Decided April 26, 2005 include foreign convictions, the likelihood that Congress, at best, paid no attention
to the matter is reinforced by the empirical fact that, according to the Government,
Petitioner Small was convicted in a Japanese Court of trying to smuggle firearms since 1968, there have fewer than a dozen instances in which such a foreign
and ammunition into that country. He served five years in prison and then returned conviction has served as a predicate for a felon-in-possession prosecution. Pp. 5—8.
to the United States, where he bought a gun. Federal authorities subsequently
charged Small under 18 U.S.C. § 922(g)(1), which forbids “any person … convicted 333 F.3d 425, reversed and remanded.
in any court … of a crime punishable by imprisonment for a term exceeding one
year … to … possess … any firearm.” (Emphasis added.) Small pleaded guilty while
reserving the right to challenge his conviction on the ground that his earlier
conviction, being foreign, fell outside §922(g)(1)’s scope. The Federal District Court
and the Third Circuit rejected this argument.
Facts:
The petitioners filed a putative class action against the respondents, under the Alien
Tort Statute in the United States District Court for the Southern District of New
York. The District Court dismissed claims against the corporate defendants in part
and certified its order for interlocutory appeal.
Both parties cross-appealed to the U.S. Court of Appeals for the Second Circuit. The
respondents argued that the law of nations does not attach civil liability to
corporations under any circumstances. The petitioners argued that the liability
should attach to corporate actors, just as it would to private actors. On September
17, 2010, the Second Circuit affirmed dismissal of the lawsuit with the majority
holding that the Alien Tort Statute does not confer jurisdiction over suits against
corporations. On February 4, 2011, the Second Circuit denied the petitioners'
request for panel rehearing and for rehearing en banc. The petitioners filed a second
petition for rehearing en banc and a motion to recall the mandate, which the Second
Circuit denied.
Following oral argument, the Court set the case for reargument in the 2012 Term to
address whether and when the Alien Tort Statute allows courts to recognize a cause
of action for violations of the law of nations occurring within the territory of a
sovereign other than the United States.
Question
1. Under the Alien Tort Statute, are corporations immune from tort liability for
violations of the law of nations, such as torture, extrajudicial executions, or
genocide?
2. Upon reargument, does the Alien Tort Statute allow courts to recognize a cause
of action for violations of the law of nations occurring within the territory of a
sovereign other than the United States?
Conclusion:
As to the second question: no. Chief Justice John G. Roberts Jr. delivered a
unanimous opinion affirming the Second Circuit’s judgment. The Court held that
under the Alien Tort Statute, there is a presumption against extraterritorial
application of U.S. law. This presumption, derived from a traditional canon of
interpretation, serves to protect against clashes between U.S. law and the law of
other nations. The Court reasoned that nothing within the text, history, or purpose
of the statute indicates that it was intended to apply extraterritorially. In order to
rebut this presumption, the petitioners’ claim would have to touch and concern the
territory of the United States with “sufficient force.” Since the statute is presumed
not to apply, the Court did not address the question of whether corporations are
immune from tort liability for violations of the law of nations.
court must determine which substantive law when applied to the merits will be fair
KAZUHIRO HASEGAWA V. MINORU KITAMURA
to both parties.
3. Recognition and Enforcement of Judgment – Where can the resulting judgment
be enforced?
538 SCRA 261 – Conflict of Laws – Private International Law – Jurisdiction – Lex
Loci Celebrationis – Lex Loci Solutionis – State of the Most Significant Relationship –
Forum Non Conveniens This case is not yet in the second phase because upon the RTC’s taking cognizance
of the case, Hasegawa immediately filed a motion to dismiss, which was denied. He
In March 1999, Nippon Engineering Consultants Co., Ltd, a Japanese firm, was filed a motion for reconsideration, which was also denied. Then he bypassed the
contracted by the Department of Public Works and Highways (DPWH) to supervise proper procedure by immediately filing a petition for certiorari. The question of
the construction of the Southern Tagalog Access Road. In April 1999, Nippon which law should be applied should have been settled in the trial court had
entered into an independent contractor agreement (ICA) with Minoru Kitamura for Hasegawa not improperly appealed the interlocutory order denying his MFR.
the latter to head the said project. The ICA was entered into in Japan and is
effective for a period of 1 year (so until April 2000). In January 2000, DPWH
awarded the Bongabon-Baler Road project to Nippon. Nippon subsequently assigned
Kitamura to head the road project. But in February 2000, Kazuhiro Hasegawa, the
general manager of Nippon informed Kitamura that they are pre-terminating his
contract. Kitamura sought Nippon to reconsider but Nippon refused to negotiate.
Kitamura then filed a complaint for specific performance and damages against
Nippon in the RTC of Lipa.
Hasegawa filed a motion to dismiss on the ground that the contract was entered in
Japan hence, applying the principle of lex loci celebracionis, cases arising from the
contract should be cognizable only by Japanese courts. The trial court denied the
motion. Eventually, Nippon filed a petition for certiorari with the Supreme Court.
Hasegawa, on appeal significantly changed its theory, this time invoking forum non
conveniens; that the RTC is an inconvenient forum because the parties are Japanese
nationals who entered into a contract in Japan. Kitamura on the other hand invokes
the trial court’s ruling which states that matters connected with the performance of
contracts are regulated by the law prevailing at the place of performance, so since
the obligations in the ICA are executed in the Philippines, courts here have
jurisdiction.
ISSUE: Whether or not the complaint against Nippon should be dismissed.
HELD: No. The trial court did the proper thing in taking cognizance of it.
In the first place, the case filed by Kitamura is a complaint for specific performance
and damages. Such case is incapable of pecuniary estimation; such cases are within
the jurisdiction of the regional trial court.
Hasegawa filed his motion to dismiss on the ground of forum non conveniens.
However, such ground is not one of those provided for by the Rules as a ground for
dismissing a civil case.
The Supreme Court also emphasized that the contention that Japanese laws should
apply is premature. In conflicts cases, there are three phases and each next phase
commences when one is settled, to wit:
certiorari to the united states court of appeals for the district of columbia circuit 1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the
instant cases, that were pending at the time of its enactment. Section §7(b)’s
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008* effective date provision undoubtedly applies to habeas actions, which, by definition,
“relate to … detention” within that section’s meaning. Petitioners argue to no avail
In the Authorization for Use of Military Force (AUMF), Congress empowered the that §7(b) does not apply to a §2241(e)(1) habeas action, but only to “any other
President “to use all necessary and appropriate force against those … he determines action” under §2241(e)(2), because it largely repeats that section’s language. The
planned, authorized, committed, or aided the terrorist attacks … on September 11, phrase “other action” in §2241(e)(2) cannot be understood without referring back to
2001.” In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices §2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two
recognized that detaining individuals captured while fighting against the United paragraphs’ structure implies that habeas is a type of action “relating to any aspect
States in Afghanistan for the duration of that conflict was a fundamental and of … detention,” etc., pending habeas actions are in the category of cases subject to
accepted incident to war. Thereafter, the Defense Department established the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history.
Combatant Status Review Tribunals (CSRTs) to determine whether individuals Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8.
detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy
combatants.” 2. Petitioners have the constitutional privilege of habeas corpus. They are not
barred from seeking the writ or invoking the Suspension Clause’s protections
Petitioners are aliens detained at Guantanamo after being captured in because they have been designated as enemy combatants or because of their
Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. presence at Guantanamo. Pp. 8–41.
Denying membership in the al Qaeda terrorist network that carried out the
September 11 attacks and the Taliban regime that supported al Qaeda, each (a) A brief account of the writ’s history and origins shows that protection for the
petitioner sought a writ of habeas corpus in the District Court, which ordered the habeas privilege was one of the few safeguards of liberty specified in a Constitution
cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. that, at the outset, had no Bill of Rights; in the system the Framers conceived, the
S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. writ has a centrality that must inform proper interpretation of the Suspension
C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, Clause. That the Framers considered the writ a vital instrument for the protection of
542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. individual liberty is evident from the care taken in the Suspension Clause to specify
In the first, the district judge granted the Government’s motion to dismiss, holding the limited grounds for its suspension: The writ may be suspended only when public
that the detainees had no rights that could be vindicated in a habeas action. In the safety requires it in times of rebellion or invasion. The Clause is designed to protect
second, the judge held that the detainees had due process rights. against cyclical abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitution’s essential
While appeals were pending, Congress passed the Detainee Treatment Act of design, ensuring that, except during periods of formal suspension, the Judiciary will
2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no have a time-tested device, the writ, to maintain the “delicate balance of
court, justice, or judge shall have jurisdiction to … consider … an application for … governance.” Hamdi, supra, at 536. Separation-of-powers principles, and the
habeas corpus filed by or on behalf of an alien detained … at Guantanamo,” and history that influenced their design, inform the Clause’s reach and purpose. Pp. 8–
gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In 15.
Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision
inapplicable to cases (like petitioners’) pending when the DTA was enacted. (b) A diligent search of founding-era precedents and legal commentaries reveals
Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of no certain conclusions. None of the cases the parties cite reveal whether a common-
which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by law court would have granted, or refused to hear for lack of jurisdiction, a habeas
detained aliens determined to be enemy combatants, while §2241(e)(2) denies petition by a prisoner deemed an enemy combatant, under a standard like the
jurisdiction as to “any other action against the United States … relating to any Defense Department’s in these cases, and when held in a territory, like
aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a Guantanamo, over which the Government has total military and civil control. The
detained alien determined to be an enemy combatant. MCA §7(b) provides that the evidence as to the writ’s geographic scope at common law is informative, but,
2241(e) amendments “shall take effect on the date of the enactment of this Act, again, not dispositive. Petitioners argue that the site of their detention is analogous
and shall apply to all cases, without exception, pending on or after [that] date … to two territories outside England to which the common-law writ ran, the exempt
which relate to any aspect of the detention, transfer, treatment, trial, or conditions jurisdictions and India, but critical differences between these places and
of detention of an alien detained … since September 11, 2001.” Guantanamo render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover, where the writ did
The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, not run, but it is unclear whether the common-law courts lacked the power to issue
and all federal courts, jurisdiction to consider petitioners’ habeas applications; that the writ there, or whether they refrained from doing so for prudential reasons. The
petitioners are not entitled to habeas or the protections of the Suspension Clause, parties’ arguments that the very lack of a precedent on point supports their
U. S. Const., Art. I, §9, cl. 2, which provides that “[t]he Privilege of the Writ of respective positions are premised upon the doubtful assumptions that the historical
Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or record is complete and that the common law, if properly understood, yields a
Invasion the public Safety may require it”; and that it was therefore unnecessary to definite answer to the questions before the Court. Pp. 15–22.
consider whether the DTA provided an adequate and effective substitute for habeas.
(c) The Suspension Clause has full effect at Guantanamo. The Government’s Constitution on or off at will would lead to a regime in which they, not this Court,
argument that the Clause affords petitioners no rights because the United States say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177. These concerns have
does not claim sovereignty over the naval station is rejected. Pp. 22–42. particular bearing upon the Suspension Clause question here, for the habeas writ is
itself an indispensable mechanism for monitoring the separation of powers. Pp. 34–
(i) The Court does not question the Government’s position that Cuba 36.
maintains sovereignty, in the legal and technical sense, over Guantanamo, but it
does not accept the Government’s premise that de jure sovereignty is the (iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its
touchstone of habeas jurisdiction. Common-law habeas’ history provides scant other extraterritoriality opinions, at least three factors are relevant in determining
support for this proposition, and it is inconsistent with the Court’s precedents and the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the
contrary to fundamental separation-of-powers principles. Pp. 22–25. adequacy of the process through which that status was determined; (2) the nature
of the sites where apprehension and then detention took place; and (3) the practical
(ii) Discussions of the Constitution’s extraterritorial application in cases obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of
involving provisions other than the Suspension Clause undermine the Government’s this framework reveals, first, that petitioners’ status is in dispute: They are not
argument. Fundamental questions regarding the Constitution’s geographic scope American citizens, but deny they are enemy combatants; and although they have
first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded been afforded some process in CSRT proceedings, there has been no Eisentrager–
by Spain after the Spanish-American War, and Congress discontinued its prior style trial by military commission for violations of the laws of war. Second, while the
practice of extending constitutional rights to territories by statute. In the so-called sites of petitioners’ apprehension and detention weigh against finding they have
Insular Cases, the Court held that the Constitution had independent force in the Suspension Clause rights, there are critical differences between Eisentrager’s
territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the
United States, 195 U. S. 138. Yet because of the difficulties and disruption inherent Government’s absolute and indefinite control over the naval station. Third, although
in transforming the former Spanish colonies’ civil-law system into an Anglo- the Court is sensitive to the financial and administrative costs of holding the
American system, the Court adopted the doctrine of territorial incorporation, under Suspension Clause applicable in a case of military detention abroad, these factors
which the Constitution applies in full in incorporated Territories surely destined for are not dispositive because the Government presents no credible arguments that
statehood but only in part in unincorporated Territories. See, e.g., id., at 143. the military mission at Guantanamo would be compromised if habeas courts had
Practical considerations likewise influenced the Court’s analysis in Reid v. Covert, jurisdiction. The situation in Eisentrager was far different, given the historical
354 U. S. 1, where, in applying the jury provisions of the Fifth and Sixth context and nature of the military’s mission in post-War Germany. Pp. 36–41.
Amendments to American civilians being tried by the U. S. military abroad, both the
plurality and the concurrences noted the relevance of practical considerations, (d) Petitioners are therefore entitled to the habeas privilege, and if that
related not to the petitioners’ citizenship, but to the place of their confinement and privilege is to be denied them, Congress must act in accordance with the
trial. Finally, in holding that habeas jurisdiction did not extend to enemy aliens, Suspension Clause’s requirements. Cf. Rasul, 542 U. S., at 564. Pp. 41–42.
convicted of violating the laws of war, who were detained in a German prison during
the Allied Powers’ post-World War II occupation, the Court, in Johnson v. 3. Because the DTA’s procedures for reviewing detainees’ status are not an
Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the adequate and effective substitute for the habeas writ, MCA §7 operates as an
production of the prisoners, id., at 779. The Government’s reading of Eisentrager as unconstitutional suspension of the writ. Pp. 42–64.
adopting a formalistic test for determining the Suspension Clause’s reach is rejected
because: (1) the discussion of practical considerations in that case was integral to a (a) Given its holding that the writ does not run to petitioners, the D. C. Circuit
part of the Court’s opinion that came before it announced its holding, see id., at found it unnecessary to consider whether there was an adequate substitute for
781; (2) it mentioned the concept of territorial sovereignty only twice in its opinion, habeas. This Court usually remands for consideration of questions not decided
in contrast to its significant discussion of practical barriers to the running of the below, but departure from this rule is appropriate in “exceptional” circumstances,
writ; and (3) if the Government’s reading were correct, the opinion would have see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here,
marked not only a change in, but a complete repudiation of, the Insular Cases’ (and the grave separation-of-powers issues raised by these cases and the fact that
later Reid’s) functional approach. A constricted reading of Eisentrager overlooks petitioners have been denied meaningful access to a judicial forum for years. Pp.
what the Court sees as a common thread uniting all these cases: The idea that 42–44.
extraterritoriality questions turn on objective factors and practical concerns, not
formalism. Pp. 25–34. (b) Historically, Congress has taken care to avoid suspensions of the writ. For
example, the statutes at issue in the Court’s two leading cases addressing habeas
(iii) The Government’s sovereignty-based test raises troubling separation-of- substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U.
powers concerns, which are illustrated by Guantanamo’s political history. Although S. 205, were attempts to streamline habeas relief, not to cut it back. Those cases
the United States has maintained complete and uninterrupted control of provide little guidance here because, inter alia, the statutes in question gave the
Guantanamo for over 100 years, the Government’s view is that the Constitution has courts broad remedial powers to secure the historic office of the writ, and included
no effect there, at least as to noncitizens, because the United States disclaimed saving clauses to preserve habeas review as an avenue of last resort. In contrast,
formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be Congress intended the DTA and the MCA to circumscribe habeas review, as is
contracted away like this. The Constitution grants Congress and the President the evident from the unequivocal nature of MCA §7’s jurisdiction-stripping language,
power to acquire, dispose of, and govern territory, not the power to decide when from the DTA’s text limiting the Court of Appeals’ jurisdiction to assessing whether
and where its terms apply. To hold that the political branches may switch the the CSRT complied with the “standards and procedures specified by the Secretary of
Defense,” DTA §1005(e)(2)(C), and from the absence of a saving clause in either no longer pertain here. In some instances six years have elapsed without the
Act. That Congress intended to create a more limited procedure is also confirmed by judicial oversight that habeas corpus or an adequate substitute demands. To require
the legislative history and by a comparison of the DTA and the habeas statute that these detainees to pursue the limited structure of DTA review before proceeding
would govern in MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress with habeas actions would be to require additional months, if not years, of delay.
authorized “any justice” or “circuit judge” to issue the writ, thereby accommodating This holding should not be read to imply that a habeas court should intervene the
the necessity for factfinding that will arise in some cases by allowing the appellate moment an enemy combatant steps foot in a territory where the writ runs. Except
judge or Justice to transfer the case to a district court. See §2241(b). However, by in cases of undue delay, such as the present, federal courts should refrain from
granting the D. C. Circuit “exclusive” jurisdiction over petitioners’ cases, see DTA entertaining an enemy combatant’s habeas petition at least until after the CSRT has
§1005(e)(2)(A), Congress has foreclosed that option in these cases. Pp. 44–49. had a chance to review his status. Pp. 64–67.
(c) This Court does not endeavor to offer a comprehensive summary of the (b) In effectuating today’s holding, certain accommodations—including
requisites for an adequate habeas substitute. It is uncontroversial, however, that channeling future cases to a single district court and requiring that court to use its
the habeas privilege entitles the prisoner to a meaningful opportunity to discretion to accommodate to the greatest extent possible the Government’s
demonstrate that he is being held pursuant to “the erroneous application or legitimate interest in protecting sources and intelligence gathering methods—should
interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289, 302, and the habeas be made to reduce the burden habeas proceedings will place on the military,
court must have the power to order the conditional release of an individual without impermissibly diluting the writ’s protections. Pp. 67–68.
unlawfully detained. But more may be required depending on the circumstances.
Petitioners identify what they see as myriad deficiencies in the CSRTs, the most 5. In considering both the procedural and substantive standards used to impose
relevant being the constraints upon the detainee’s ability to rebut the factual basis detention to prevent acts of terrorism, the courts must accord proper deference to
for the Government’s assertion that he is an enemy combatant. At the CSRT stage the political branches. However, security subsists, too, in fidelity to freedom’s first
the detainee has limited means to find or present evidence to challenge the principles, chief among them being freedom from arbitrary and unlawful restraint
Government’s case, does not have the assistance of counsel, and may not be aware and the personal liberty that is secured by adherence to the separation of powers.
of the most critical allegations that the Government relied upon to order his Pp. 68–70.
detention. His opportunity to confront witnesses is likely to be more theoretical than
real, given that there are no limits on the admission of hearsay. The Court therefore 476 F. 3d 981, reversed and remanded.
agrees with petitioners that there is considerable risk of error in the tribunal’s
findings of fact. And given that the consequence of error may be detention for the Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter,
duration of hostilities that may last a generation or more, the risk is too significant Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which
to ignore. Accordingly, for the habeas writ, or its substitute, to function as an Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which
effective and meaningful remedy in this context, the court conducting the collateral Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which
proceeding must have some ability to correct any errors, to assess the sufficiency of Roberts, C. J., and Thomas and Alito, JJ., joined.
the Government’s evidence, and to admit and consider relevant exculpatory
evidence that was not introduced during the earlier proceeding. In re Yamashita, * Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al. v. United
327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 23–25, distinguished. Pp. 49– States et al., also on certiorari to the same court.
57.
(d) Petitioners have met their burden of establishing that the DTA review
process is, on its face, an inadequate substitute for habeas. Among the
constitutional infirmities from which the DTA potentially suffers are the absence of
provisions allowing petitioners to challenge the President’s authority under the
AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to
supplement the record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be read to contain
each of these constitutionally required procedures. MCA §7 thus effects an
unconstitutional suspension of the writ. There is no jurisdictional bar to the District
Court’s entertaining petitioners’ claims. Pp. 57–64.
(a) Petitioners need not seek review of their CSRT determinations in the D. C.
Circuit before proceeding with their habeas actions in the District Court. If these
cases involved detainees held for only a short time while awaiting their CSRT
determinations, or were it probable that the Court of Appeals could complete a
prompt review of their applications, the case for requiring temporary abstention or
exhaustion of alternative remedies would be much stronger. But these qualifications
SAUDI ARABIAN AIRLINES (SAUDIA) AND BRENDA J. BETIA, Petitioners, v. The Court stated in the case;
MA. JOPETTE M. REBESENCIO, MONTASSAH B. SACAR-ADIONG, ROUEN
RUTH A. CRISTOBAL AND LORAINE S. SCHNEIDER-CRUZ, Respondents. Saudia asserts that stipulations set in the Cabin Attendant contracts require the
application of the laws of Saudi Arabia. It insists that the need to comply with these
The Facts of the Case. stipulations calls into operation the doctrine of forum non conveniens and, in turn,
makes it necessary for Philippine tribunals to refrain from exercising jurisdiction.
In this case, Respondents (complainants before the Labor Arbiter) were recruited Forum non conveniens, like the rules of forum shopping, litis pendentia, and res
and hired by Saudia as Temporary Flight Attendants with the accreditation and judicata, is a means of addressing the problem of parallel litigation. While the rules
approval of the Philippine Overseas Employment Administration. After undergoing of forum shopping, litis pendentia, and res judicata are designed to address the
seminars required by the Philippine Overseas Employment Administration for problem of parallel litigation within a single jurisdiction, forum non conveniens is a
deployment overseas, as well as training modules offered by Saudia (e.g., initial means devised to address parallel litigation arising in multiple jurisdictions.
flight attendant/training course and transition training), and after working as
Temporary Flight Attendants, respondents became Permanent Flight Attendants. On the matter of pleading forum non conveniens, we state the rule, thus: Forum
They then entered into Cabin Attendant contracts with Saudia: Ma. Jopette M. non conveniens must not only be clearly pleaded as a ground for dismissal; it must
Rebesencio (Ma. Jopette) on May 16, 1990; Montassah B. Sacar-Adiong be pleaded as such at the earliest possible opportunity. Otherwise, it shall be
(Montassah) and Rouen Ruth A. Cristobal (Rouen Ruth) on May 22, 1993; and deemed waived.
Loraine Schneider-Cruz (Loraine) on August 27, 1995.
It further stated:
Respondents continued their employment with Saudia until they were separated Forum non conveniens finds no application and does not operate to divest Philippine
from service on various dates in 2006. Respondents contended that the termination tribunals of jurisdiction and to require the application of foreign law. Saudia invokes
of their employment was illegal. They alleged that the termination was made solely forum non conveniens to supposedly effectuate the stipulations of the Cabin
because they were pregnant. Attendant contracts that require the application of the laws of Saudi Arabia.
Saudia anchored its disapproval of respondents’ maternity leaves and demand for xxx
their resignation on its “Unified Employment Contract for Female Cabin Attendants”
(Unified Contract). Under the Unified Contract, the employment of a Flight So informed and animated, we emphasize the glaringly discriminatory nature of
Attendant who becomes pregnant is rendered void. It provides: Saudia’s policy. As argued by respondents, Saudia’s policy entails the termination of
employment of flight attendants who become pregnant. At the risk of stating the
(H) Due to the essential nature of the Air Hostess functions to be physically fit on obvious, pregnancy is an occurrence that pertains specifically to women. Saudia’s
board to provide various services required in normal or emergency cases on both policy excludes from and restricts employment on the basis of no other
domestic/international flights beside her role in maintaining continuous safety and consideration but sex.
security of passengers, and since she will not be able to maintain the required
medical fitness while at work in case of pregnancy, accordingly, if the Air Hostess We do not lose sight of the reality that pregnancy does present physical limitations
becomes pregnant at any time during the term of this contract, this shall render her that may render difficult the performance of functions associated with being a flight
employment contract as void and she will be terminated due to lack of medical attendant. Nevertheless, it would be the height of iniquity to view pregnancy as a
fitness.(Emphasis supplied) disability so permanent and immutable that it must entail the termination of one’s
employment. It is clear to us that any individual, regardless of gender, may be
On November 8, 2007, respondents filed a Complaint against Saudia and its officers subject to exigencies that limit the performance of functions. However, we fail to
for illegal dismissal and for underpayment of salary, overtime pay, premium pay for appreciate how pregnancy could be such an impairing occurrence that it leaves no
holiday, rest day, premium, service incentive leave pay, 13th month pay, separation other recourse but the complete termination of the means through which a woman
pay, night shift differentials, medical expense reimbursements, retirement benefits, earns a living.
illegal deduction, lay-over expense and allowances, moral and exemplary damages,
and attorney’s fees. Oddly enough, the petitioner Saudia themselves stated that the Saudi law does not
allow the termination of employment of women who take maternity leaves;
The issue to be resolved in the instant case is whether or not there was an illegal
dismissal of the respondents? Consistent with lex loci intentionis, to the extent that it is proper and practicable
(i.e., “to make an intelligent decision”), Philippine tribunals may apply the foreign
The Supreme Court's Decision. law selected by the parties. In fact, (albeit without meaning to make a
Yes, the respondents were illegally dismissed. pronouncement on the accuracy and reliability of respondents’ citation) in this case,
respondents themselves have made averments as to the laws of Saudi Arabia. In
The initial issue here was whether or not the Philippine courts have jurisdiction over their Comment, respondents write:
the case. Petitioner Saudia states that the Philippine courts have no jurisdiction and
that the law that should be applied in the instant case is Saudi Arabia law. The Under the Labor Laws of Saudi Arabia and the Philippines[,] it is illegal and unlawful
Court stated that this is incorrect. The Court has jurisdiction in this case. to terminate the employment of any woman by virtue of pregnancy. The law in
Saudi Arabia is even more harsh and strict [sic] in that no employer can terminate
the employment of a female worker or give her a warning of the same while on
Maternity Leave, the specific provision of Saudi Labor Laws on the matter is hereto
quoted as follows: “An employer may not terminate the employment of a female
worker or give her a warning of the same while on maternity leave.” (Article 155,
Labor Law of the Kingdom of Saudi Arabia, Royal Decree No. M/51.)
This. case is REMANDED. to the Labor Arbiter to make a detailed computation of the
amounts due to respondents which petitioner Saudi Arabian Airlines should pay
without delay.
HWANG GEUM JOO, et al., Appellants v. JAPAN, Minister Yohei Kono, certiorari, vacated our judgment, and remanded the case to this court for further
Minister of Foreign Affairs, Appellee. consideration in light of Altmann. Hwang Geum Joo v. Japan, 542 U.S. 901, 124
S.Ct. 2835, 159 L.Ed.2d 265 (2004).
No. 01-7169.
Decided: June 28, 2005 II. Analysis
Before: GINSBURG, Chief Judge, and SENTELLE and TATEL, Circuit
Judges.Agnieszka M. Fryszman argued the cause for appellants. With her on the The appellants again urge this court to reverse the district court's holding that their
briefs were Michael D. Hausfeld, Barry A. Fisher, David Grosz, and Bill Lann Lee. claims are not “based upon ․ act[s] ․ in connection with a commercial activity,” 28
Jenny S. Martinez argued the cause for amici curiae Askin, et al. in support of U.S.C. § 1605(a)(2), and to remand the case to the district court for it to decide in
appellants. With her on the brief were David A. Handzo and Richard Heideman. the first instance whether Japan's alleged actions “cause[d] a direct effect in the
Craig A. Hoover argued the cause for appellee. With him on the brief were United States.” Id. Japan, and the United States as amicus curiae, again argue that
Jonathan S. Franklin and Lorane F. Hebert. Sharon Swingle, Attorney, U.S. Japan enjoys sovereign immunity because its alleged activities were not commercial
Department of Justice, argued the cause for amicus curiae United States of America and, in any event, that the appellants' complaint presents a nonjusticiable political
in support of appellee. With her on the brief were Peter D. Keisler, Assistant question.
Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Mark B. Stern,
Attorney. As explained below, we agree with the latter argument and therefore do not address
We again review the district court's dismissal of the appellants' complaint alleging the issue of sovereign immunity. The appellants, however, citing Steel Co. v.
Japanese soldiers “routinely raped, tortured ․ [and] mutilated” them, along with Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210
thousands of other women, in occupied countries before and during World War II. (1998), contend that “[b]efore reaching [the] political question [doctrine], this
Hwang Geum Joo v. Japan, 332 F.3d 679, 681 (D.C.Cir.2003). The case returns to [c]ourt must establish jurisdiction” under the FSIA. We turn first to that issue.
us now on remand from the Supreme Court. Having had the benefit of further
briefing and argument, we affirm the judgment of the district court on the ground A. The Order of Proceeding
that the case presents a nonjusticiable political question, namely, whether the
governments of the appellants' countries foreclosed the appellants' claims in the As the Supreme Court stated in Steel Co., “For a court to pronounce upon the
peace treaties they signed with Japan. meaning ․ of a state or federal law when it has no jurisdiction to do so is, by very
definition, for a court to act ultra vires.” 523 U.S. at 101-02, 118 S.Ct. 1003. The
I. Background court must therefore “address questions pertaining to its or a lower court's
jurisdiction before proceeding to the merits.” Tenet v. Doe, 544 U.S. 1, ---- n. 4,
The facts of this case are set forth in our previous opinion, id. at 680-81. In brief, 125 S.Ct. 1230, 1235 n. 4, 161 L.Ed.2d 82 (2005).
the appellants are 15 women from China, Taiwan, South Korea, and the Philippines;
in 2000 they sued Japan in the district court under the Alien Tort Statute, 28 U.S.C. The appellants apparently assume, but point to no authority suggesting, a
§ 1350, “seeking money damages for [allegedly] having been subjected to sexual dismissal under the political question doctrine is an adjudication on the merits.
slavery and torture before and during World War II,” in violation of “both positive That is not how the Supreme Court sees the matter:
and customary international law.” 332 F.3d at 680, 681.
[T]he concept of justiciability, which expresses the jurisdictional limitations imposed
The district court dismissed the appellants' complaint, Hwang Geum Joo v. Japan, upon federal courts by the ‘case or controversy’ requirement of Art. III, embodies ․
172 F.Supp.2d 52, 63 (D.D.C.2001), concluding first that Japan's alleged activities the ․ political question doctrine[ ] ․ [T]he presence of a political question [thus]
did not “arise in connection with a commercial activity” and therefore did not fall suffices to prevent the power of the federal judiciary from being invoked by the
within the commercial activity exception in the Foreign Sovereign Immunities Act complaining party.
(FSIA), 28 U.S.C. § 1605(a)(2). Accordingly, the district court did not consider
the second requirement for jurisdiction under that exception-that “Japan's alleged Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct.
conduct caused a ‘direct effect’ in the United States.” 172 F.Supp.2d at 64 n. 8. 2925, 41 L.Ed.2d 706 (1974).
The district court went on to hold in the alternative that the complaint presents a
nonjusticiable political question, noting that “the series of treaties signed after the Moreover, Steel Co. “does not dictate a sequencing of jurisdictional issues.”
war was clearly aimed at resolving all war claims against Japan.” Id. at 67. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d
760 (1999) (within court's discretion to address personal jurisdiction before subject-
We affirmed on the ground that Japan would have been afforded absolute immunity matter jurisdiction); see also Toca Producers v. FERC, 411 F.3d 262, 264
from suit in the United States at the time of the alleged activities, 332 F.3d at 685, (D.C.Cir.2005) (addressing ripeness before standing). Rather, as this court held In
and that the Congress did not manifest a clear intent for the commercial activity re Papandreou, “a court that dismisses on other non-merits grounds such as forum
exception to apply retroactively to events prior to May 19, 1952, when the State non conveniens and personal jurisdiction, before finding subject-matter jurisdiction,
Department first espoused the restrictive theory of immunity later codified in the makes no assumption of law-declaring power that violates the separation of powers
FSIA, id. at 686. The Supreme Court, however, held in Republic of Austria v. principles underlying ․ Steel Company.” 139 F.3d 247, 255 (1998). As the
Altmann, 541 U.S. 677, 699, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004), that the FSIA Supreme Court stated in Tenet, “application of the Totten rule of dismissal, [92 U.S.
applies to all cases filed thereunder “regardless of when the underlying conduct 105, 23 L.Ed. 605 (1876),] like the abstention doctrine of Younger v. Harris, 401
occurred.” Accordingly, the Court granted the appellants' petition for a writ of U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), or the prudential standing doctrine,
represents the sort of ‘threshold question’ we have recognized may be resolved 702, 124 S.Ct. 2240; see also id. at 714, 124 S.Ct. 2240 (Breyer, J., concurring)
before addressing jurisdiction.” 125 S.Ct. at 1235 n. 4. Likewise, we need not (citing district court's opinion in this case).
resolve the question of the district court's subject-matter jurisdiction under 28
U.S.C. § 1330-that is, whether Japan is entitled to sovereign immunity under the With these principles in mind, we turn to “the particular question posed” in this
FSIA, see Creighton Ltd. v. Gov't of the State of Qatar, 181 F.3d 118, 121 case, Baker, 369 U.S. at 211, 82 S.Ct. 691, namely, whether the series of treaties
(D.C.Cir.1999) (the FSIA “is the sole basis for obtaining jurisdiction over a foreign Japan concluded in order to secure the peace after World War II foreclosed the
state in our courts”)-before considering whether the complaint presents a appellants' claims. As we explained in our previous opinion, Article 14 of the 1951
nonjusticiable political question, see Ruhrgas, 526 U.S. at 585, 119 S.Ct. 1563 (“It Treaty of Peace between Japan and the Allied Powers, 3 U.S.T. 3169, “expressly
is hardly novel for a federal court to choose among threshold grounds for denying waives ․ ‘all claims of the Allied Powers and their nationals arising out of any actions
audience to a case on the merits”). taken by Japan and its nationals in the course of the prosecution of the war.’ ” 332
F.3d at 685.
B. The Political Question Doctrine
The appellants from China, Taiwan, and South Korea argue that because their
The War in the Pacific has been over for 60 years, and Japan has long since governments were not parties to the 1951 Treaty, the waiver of claims provision in
signed a peace treaty with each of the countries from which the appellants come. Article 14 did not extinguish their claims. Neither, they argue, did the subsequent
The appellants maintain those treaties preserved, and Japan maintains they agreements between Japan and the governments of their countries. Although the
extinguished, war claims made by citizens of those countries against Japan. As appellants acknowledge that “it may seem anomalous that aliens may sue where
explained below, our Constitution does not vest the authority to resolve that dispute similar claims of U.S. nationals are waived,” they argue “that is precisely the result
in the courts. Rather, we defer to the judgment of the Executive Branch of the contemplated by ․ the [Alien Tort Statute], 28 U.S.C. § 1350.” *
United States Government, which represents, in a thorough and persuasive
Statement of Interest, that judicial intrusion into the relations between Japan and “Anomalous” is an understatement. See Statement of Interest of the United States
other foreign governments would impinge upon the ability of the President to at 28 (“it manifestly was not the intent of the President and Congress to preclude
conduct the foreign relations of the United States. Americans from bringing their war-related claims against Japan ․ while allowing
federal or state courts to serve as a venue for the litigation of similar claims by non-
Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), remains the U.S. nationals”). Even if we assume, however, as the appellants contend, that the
starting point for analysis under the political question doctrine. There the Supreme 1951 Treaty does not of its own force deprive the courts of the United States of
Court explained that “[p]rominent on the surface of any case held to involve a jurisdiction over their claims, it is pellucidly clear the Allied Powers intended that all
political question is found” at least one of six factors, the first of which is “a war-related claims against Japan be resolved through government-to-government
textually demonstrable constitutional commitment of the issue to a coordinate negotiations rather than through private tort suits. Indeed, Article 26 of the Treaty
political department ․” Id. at 217, 82 S.Ct. 691.* Of course, questions concerning obligated Japan to enter “bilateral” peace treaties with non-Allied states “on the
foreign relations “frequently ․ involve the exercise of a discretion demonstrably same or substantially the same terms as are provided for in the present treaty,”
committed to the executive or legislature”; the Court cautioned, however, that “it is which indicates the Allied Powers expected Japan to resolve other states' claims, like
error to suppose that every case or controversy which touches foreign relations lies their own, through government-to-government agreement. To the extent the
beyond judicial cognizance.” Id. at 211, 82 S.Ct. 691. Courts are therefore to subsequent treaties between Japan and the governments of the appellants'
focus their analysis upon “the particular question posed, in terms of the history of countries resolved the claims of their respective nationals, the 1951 Treaty at a
its management by the political branches.” Id. minimum obliges the courts of the United States not to disregard those bilateral
resolutions.
The Supreme Court has recently given further direction more closely related to the
legal and factual circumstances of this case: A policy of “case-specific deference to First, the Republic of the Philippines, as an Allied Power, was a signatory to the
the political branches” may be appropriate in cases brought under the Alien Tort 1951 Treaty itself and thus at least purported to waive the claims of its nationals.
Statute. Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 2766 n. 21, 159 136 U.N.T.S. at 137, ratified 260 U.N.T.S. 450. Then in 1952 Japan reached an
L.Ed.2d 718 (2004). In Sosa, the Court took note of certain class actions seeking agreement with the Republic of China (Taiwan), 138 U.N.T.S. 37, which did not
damages for those injured by “the regime of apartheid that formerly controlled expressly mention the settlement of individual claims but did state in Article XI that
South Africa”; in each case the United States had filed a Statement of Interest “[u]nless otherwise provided for in the present Treaty ․ any problem arising
counseling dismissal because prosecution of the case would interfere with South between [the parties] as a result of the existence of a state of war shall be settled
Africa's policy of “deliberately avoid[ing] a ‘victors' justice’ approach to the crimes of in accordance with the relevant provisions of the [1951] Treaty.” In 1965 Japan
apartheid” in favor of “confession and absolution ․ reconciliation, reconstruction, and the Republic of Korea (South Korea) entered into an agreement providing that
reparation and goodwill.” Id. “In such cases,” the Court explained, “there is a “the problem concerning property, rights, and interests of the two Contracting
strong argument that federal courts should give serious weight to the Executive Parties and their nationals ․ and concerning claims between the Contracting Parties
Branch's view of the case's impact on foreign policy.” Id. Similarly, the Court in and their nationals ․ is settled completely and finally.” 583 U.N.T.S. 258, 260 (Art.
Altmann noted that a Statement of Interest concerning “the implications of II, § 1). Finally, in 1972 Japan and the People's Republic of China issued a Joint
exercising jurisdiction over [a] particular [foreign government] in connection with Communiqué in which China “renounce[d] its demand for war reparation from
[its] alleged conduct ․ might well be entitled to deference as the considered Japan,” and in 1978 Japan and China affirmed in a formal treaty of peace that “the
judgment of the Executive on a particular question of foreign policy.” 541 U.S. at principles set out in [the Joint Communiqué] should be strictly observed.” 1225
U.N.T.S. 269.
As evidenced by the 1951 Treaty itself, when negotiating peace treaties, The question whether the war-related claims of foreign nationals were extinguished
when the governments of their countries entered into peace treaties with Japan is
governments have dealt with ․ private claims as their own, treating them as one that concerns the United States only with respect to her foreign relations, the
national assets, and as counters, ‘chips', in international bargaining. Settlement authority for which is demonstrably committed by our Constitution not to the courts
agreements have lumped, or linked, claims deriving from private debts with others but to the political branches, with “the President [having] the ‘lead role.’ ”
that were intergovernmental in origin, and concessions in regard to one category of Garamendi, 539 U.S. at 423 n. 12, 123 S.Ct. 2374. And with respect to that
claims might be set off against concessions in the other, or against larger political question, the history of management by the political branches, Baker, 369 U.S. at
considerations unrelated to debts. 211, 82 S.Ct. 691, is clear and consistent: Since the conclusion of World War II, it
has been the foreign policy of the United States “to effect as complete and lasting a
Louis Henkin, Foreign Affairs and the Constitution 300 (2d edition 1996); see peace with Japan as possible by closing the door on the litigation of war-related
Dames and Moore v. Regan, 453 U.S. 654, 688, 101 S.Ct. 2972, 69 L.Ed.2d 918 claims, and instead effecting the resolution of those claims through political means.”
(1981) (upholding President's authority to settle claims of citizens as “a necessary Statement of Interest at 29; see also S.Rep. No. 82-2, 82d Cong., 2d Sess. 12
incident to the resolution of a major foreign policy dispute between our country and (1952) (“Obviously insistence upon the payment of reparations in any proportion
another [at least] where ․ Congress acquiesced in the President's action”); Am. Ins. commensurate with the claims of the injured countries and their nationals would
Ass'n v. Garamendi, 539 U.S. 396, 424, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) wreck Japan's economy, dissipate any credit that it may possess at present, destroy
(acknowledging “President's authority to provide for settling claims in winding up the initiative of its people, and create misery and chaos in which the seeds of
international hostilities”). discontent and communism would flourish”); Aldrich v. Mitsui & Co. (USA), Case
No. 87-912-Civ-J-12, Slip Op. at 3 (M.D.Fla. Jan. 20, 1988) (following State
The governments of the appellants' countries apparently had the authority-at least Department's recommendation to dismiss private claim as barred by 1951 Treaty);
the appellants do not contest the point-to bargain away their private claims in In re World War II Era Japanese Forced Labor Litigation, 114 F.Supp.2d 939, 946-
negotiating a peace with Japan and, as we noted previously, it appears “in fact 48 (N.D.Cal.2000) (same).
[they] did.” 332 F.3d at 685. Indeed, Professor Henkin reports that “except as an
agreement might provide otherwise, international claim settlements generally wipe It is of course true, as the appellants point out, that in general “the courts have
out the underlying private debt, terminating any recourse under domestic law as the authority to construe treaties and executive agreements,” Japan Whaling Ass'n
well.” Above at 300. The Supreme Court first expressed the same understanding v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986);
with respect to the Treaty of Paris ending the War of Independence, which expressly see also Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1235-36 (11th
provided for the preservation of private claims. In Ware v. Hylton, 3 U.S. (3 Dall.) Cir.2004). At the same time, the Executive's interpretation of a treaty is ordinarily
199, 230, 1 L.Ed. 568 (1796), a case brought by a British subject to recover a debt entitled to “great weight,” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176,
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote: 184-85, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982).
I apprehend that the treaty of peace abolishes the subject of the war, and that after Here, however, the United States is not a party to the treaties the meaning of which
peace is concluded, neither the matter in dispute, nor the conduct of either party, is in dispute, and the Executive does not urge us to adopt a particular interpretation
during the war, can ever be revived, or brought into contest again. All violencies, of those treaties. Rather, the Executive has persuasively demonstrated that
injuries, or damages sustained by the government, or people of either, during the adjudication by a domestic court not only “would undo” a settled foreign policy of
war, are buried in oblivion; and all those things are implied by the very treaty of state-to-state negotiation with Japan, but also could disrupt Japan's “delicate”
peace; and therefore not necessary to be expressed. Hence it follows, that the relations with China and Korea, thereby creating “serious implications for stability in
restitution of, or compensation for, British property confiscated, or extinguished, the region.” Statement of Interest at 34-35. Consider: According to the
during the war, by any of the United States, could only be provided for by the treaty appellants the Republic of Korea does not agree with Japan's understanding that the
of peace; and if there had been no provision, respecting these subjects, in the treaty between them extinguished the appellants' claims against Japan. See Reply
treaty, they could not be agitated after the treaty, by the British government, much Brief of Appellants at 15 n. 14 (quoting Korean Foreign Minister as saying that “it is
less by her subjects in courts of justice. (Emphasis supplied). the government's position that the [Treaty of 1965] does not have any effect on
individual rights to bring claims or lawsuits,” Decl. of Prof. Chang Rok Kim, Pls.'
Contrary to that principle, the appellants insist the treaties between Japan and Opp. Mot. Dismiss. Ex. 2 at 12). Is it the province of a court in the United States
Taiwan, South Korea, and China preserved the claims of individuals by failing to to decide whether Korea's or Japan's reading of the treaty between them is correct,
mention them (a claim that would be untenable with respect to the Philippines). when the Executive has determined that choosing between the interests of two
Japan does not agree, nor does the Department of State, which takes the position foreign states in order to adjudicate a private claim against one of them would
that “[t]he plaintiffs' governments ․ chose to resolve those claims through adversely affect the foreign relations of the United States? Decidedly not. The
international agreements with Japan.” Statement of Interest at 31. In order to Executive's judgment that adjudication by a domestic court would be inimical to the
adjudicate the plaintiffs' claims, the court would have to resolve their dispute with foreign policy interests of the United States is compelling and renders this case
Japan over the meaning of the treaties between Japan and Taiwan, South Korea, nonjusticiable under the political question doctrine.
and China, which, as the State Department notes in arguing this case is
nonjusticiable, would require the court to determine “the effects of those III. Conclusion
agreements on the rights of their citizens with respect to events occurring outside
the United States.” Id.
We hold the appellants' complaint presents a nonjusticiable political question,
namely, whether the governments of the appellants' countries resolved their claims
in negotiating peace treaties with Japan. In so doing we defer to “the considered
judgment of the Executive on [this] particular question of foreign policy.” Altmann,
541 U.S. at 702, 124 S.Ct. 2240; Cf. Alperin v. Vatican Bank, 410 F.3d 532 (9th
Cir.2005) ( “Condemning-for its wartime actions-a foreign government with which
the United States was at war would require us to review an exercise of foreign
policy judgment by the coordinate political branch to which authority to make that
judgment has been constitutionally committed”). For the court to disregard that
judgment, to which the Executive has consistently adhered, and which it
persuasively articulated in this case, would be imprudent to a degree beyond our
power.
Accordingly, as we said when this case was previously before us, “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.” 332 F.3d at 687. For the foregoing reasons, the
judgment of the district court is
Affirmed.
FOOTNOTES
FOOTNOTE. Other factors that indicate a political question, the Court in Baker
explained, are: “a lack of judicially discoverable and manageable standards for
resol[ution]; or the impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on one
question.” Id.
FOOTNOTE. Despite the district court's having dismissed their complaint on the
ground that “the series of treaties signed after the war was clearly aimed at
resolving all war claims against Japan” and that a United States “court is not the
appropriate forum in which plaintiffs may seek to reopen those discussions,” 172
F.Supp.2d at 67, the appellants argue for the first time in their post-remand
Supplemental Reply Brief that because they allege injuries dating back to 1931,
their claims did not arise solely from “the prosecution of the war,” which in Article
8(a) of the 1951 Treaty is defined as having begun on September 1, 1939, the day
Germany invaded Poland. This argument, raised for the first time in the
appellants' fourth and final brief on appeal, comes far too late for the court to
consider, cf. Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.Cir.2002) (“our caselaw
makes clear that an argument first made in the reply comes too late”).
FACTS: One type of case of political questions involves questions of foreign relations. It is
well-established that “the conduct of the foreign relations of our government is
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an committed by the Constitution to the executive and legislative–‘the political’–
application for the issuance of a writ of preliminary mandatory injunction against the departments of the government, and the propriety of what may be done in the
Office of the Executive Secretary, the Secretary of the DFA, the Secretary of the exercise of this political power is not subject to judicial inquiry or decision.” are
DOJ, and the OSG. delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit advance or imperil.
organization registered with the SEC, established for the purpose of providing aid to
the victims of rape by Japanese military forces in the Philippines during the Second But not all cases implicating foreign relations present political questions, and courts
World War. certainly possess the authority to construe or invalidate treaties and executive
agreements. However, the question whether the Philippine government should
Petitioners claim that since 1998, they have approached the Executive Department espouse claims of its nationals against a foreign government is a foreign relations
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the matter, the authority for which is demonstrably committed by our Constitution not
Japanese officials and military officers who ordered the establishment of the to the courts but to the political branches. In this case, the Executive Department
“comfort women” stations in the Philippines. But officials of the Executive has already decided that it is to the best interest of the country to waive all claims
Department declined to assist the petitioners, and took the position that the of its nationals for reparations against Japan in the Treaty of Peace of 1951. The
individual claims of the comfort women for compensation had already been fully wisdom of such decision is not for the courts to question.
satisfied by Japan’s compliance with the Peace Treaty between the Philippines and
Japan. The President, not Congress, has the better opportunity of knowing the conditions
which prevail in foreign countries, and especially is this true in time of war. He has
Hence, this petition where petitioners pray for this court to (a) declare that his confidential sources of information. He has his agents in the form of diplomatic,
respondents committed grave abuse of discretion amounting to lack or excess of consular and other officials.
discretion in refusing to espouse their claims for the crimes against humanity and
war crimes committed against them; and (b) compel the respondents to espouse The Executive Department has determined that taking up petitioners’ cause would
their claims for official apology and other forms of reparations against Japan before be inimical to our country’s foreign policy interests, and could disrupt our relations
the International Court of Justice (ICJ) and other international tribunals. with Japan, thereby creating serious implications for stability in this region. For the
to overturn the Executive Department’s determination would mean an assessment
Respondents maintain that all claims of the Philippines and its nationals relative to of the foreign policy judgments by a coordinate political branch to which authority to
the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral make that judgment has been constitutionally committed.
Reparations Agreement of 1956.
From a municipal law perspective, certiorari will not lie. As a general principle,
On January 15, 1997, the Asian Women’s Fund and the Philippine government where such an extraordinary length of time has lapsed between the treaty’s
signed a Memorandum of Understanding for medical and welfare support programs conclusion and our consideration – the Executive must be given ample discretion to
for former comfort women. Over the next five years, these were implemented by assess the foreign policy considerations of espousing a claim against Japan, from
the Department of Social Welfare and Development. the standpoint of both the interests of the petitioners and those of the Republic, and
decide on that basis if apologies are sufficient, and whether further steps are
ISSUE: appropriate or necessary.
WON the Executive Department committed grave abuse of discretion in not In the international sphere, traditionally, the only means available for individuals to
espousing petitioners’ claims for official apology and other forms of reparations bring a claim within the international legal system has been when the individual is
against Japan. able to persuade a government to bring a claim on the individual’s behalf. By taking
up the case of one of its subjects and by resorting to diplomatic action or
RULING: international judicial proceedings on his behalf, a State is in reality asserting its own
right to ensure, in the person of its subjects, respect for the rules of international
Petition lacks merit. From a Domestic Law Perspective, the Executive Department law.
has the exclusive prerogative to determine whether to espouse petitioners’ claims
against Japan. Within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever extent it thinks fit, for it is its own
Political questions refer “to those questions which, under the Constitution, are to be right that the State is asserting. Should the natural or legal person on whose behalf
decided by the people in their sovereign capacity, or in regard to which full it is acting consider that their rights are not adequately protected, they have no
remedy in international law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining redress. All these
questions remain within the province of municipal law and do not affect the position
internationally.
Even the invocation of jus cogens norms and erga omnes obligations will not alter
this analysis. Petitioners have not shown that the crimes committed by the
Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was
signed, or that the duty to prosecute perpetrators of international crimes is an erga
omnes obligation or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been
used as a legal term describing obligations owed by States towards the community
of states as a whole. Essential distinction should be drawn between the obligations
of a State towards the international community as a whole, and those arising vis-à-
vis another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes.
The term “jus cogens” (literally, “compelling law”) refers to norms that command
peremptory authority, superseding conflicting treaties and custom. Jus cogens
norms are considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international norms of
equivalent authority
In 2000, the California Legislature enacted Senate Bill 1915, which amended
In December 2003, Vazken Movsesian ("Movsesian") filed this class action against
California's Code of Civil Procedure to provide California courts with jurisdiction over
Victoria Verisherung AG ("Victoria"), Ergo Verischerungsgruppe AG ("Ergo"), and
certain classes of claims arising out of insurance policies that were held by
Munchener Ruckverischerungs-Gesellschaft Aktiengesellschaft ("Munich Re").
"Armenian Genocide vitcim[s]." Sen. Bill No. 1915 (1999-2000 Reg. Sess.), 2000
Movsesian and his fellow class members are persons of Armenian descent who claim
Cal. Legis. Serv. 543 (West 2000), codified at Cal.Civ.Proc.Code § 354.4. The Bill
benefits from insurance policies issued by Victoria and Ergo. Munich Re is the parent
also amended the Code to extend the statute of limitations for such claims until
company of Victoria and Ergo. Movsesian seeks damages from all three companies
December 31, 2010. Id. Section 354.4, in its entirety, provides:
for breach of written contract, breach of the covenant of good faith and fair dealing,
unjust enrichment, and other related claims. Munich Re filed a Rule 12(b)(6) motion
(a) The following definitions govern the construction of this section:(1) Armenian to dismiss the claims, arguing that the class members lacked standing to bring
Genocide victim means any person of Armenian or other ancestry living in the claims under § 354.4, and contending that it was not a proper defendant under §
Ottoman Empire during the period of 1915 to 1923, inclusive, who died, was 354.4. Munich Re also challenged the constitutionality of § 354.4, on the grounds
deported, or escaped to avoid persecution during that period.(2) Insurer means an that it violated the due process clause of the United States Constitution and was
insurance provider doing business in the state, or whose contacts in the state satisfy preempted under the foreign affairs doctrine.
the constitutional requirements for jurisdiction, that sold life, property, liability,
health, annuities, dowry, educational, casualty, or any other insurance covering
The district court granted Munich Re's motion to dismiss the claims for unjust
persons or property to persons in Europe or Asia at any time between 1875 and
enrichment and constructive trust, and denied Munich Re's motion to dismiss the
1923.(b) Notwithstanding any other provision of law, any Armenian Genocide
claims for breach of contract and breach of the covenant of fair dealing. The court
victim, or heir or beneficiary of an Armenian Genocide victim, who resides in this
held that the class members had standing to bring their claims, and that Munich Re
state and has a claim arising out of an insurance policy or policies purchased or in
was a proper defendant under § 354.4. The court rejected Munich Re's due process
effect in Europe or Asia between 1875 and 1923 from an insurer described in
challenge, and held that § 354.4 was not preempted under the foreign affairs
paragraph (2) of subdivision (a), may bring a legal action or may continue a
doctrine.
pending legal action to recover on that claim in any court of competent jurisdiction
in this state, which court shall be deemed the proper forum for that action until its
completion or resolution.(c) Any action, including any pending action brought by an Munich Re filed a motion to certify the district court's order for interlocutory appeal,
Armenian Genocide victim or the heir or beneficiary of an Armenian Genocide and to stay the action pending appeal. The district court granted the motion, and
victim, whether a resident or nonresident of this state, seeking benefits under the stayed the case. Within the ten-day window provided by 28 U.S.C. § 1292(b),
insurance policies issued or in effect between 1875 and 1923 shall not be dismissed Munich Re petitioned this court for permission to pursue an interlocutory appeal,
for failure to comply with the applicable statute of limitation, provided the action is which we granted.
filed on or before December 31, 2010.(d) The provisions of this section are
severable. If any provision of this section or its application is held invalid, that
On appeal, the parties address three issues: first, whether § 354.4 is preempted
invalidity shall not affect other provisions or applications that can be given effect
under the foreign affairs doctrine; second, whether Munich Re is a proper
without the invalid provision or application.
defendant; and third, whether the Plaintiff-Appellees have standing to bring these
claims.1 We conclude that § 354.4 impermissibly infringes on the federal
In the legislative findings accompanying the statute, the Legislature provides formal government's foreign affairs power, and is preempted. We do not reach the other
recognition to an "Armenian Genocide": issues.
The Legislature recognizes that during the period from 1915 to 1923, many persons On December 4, 2008, our court received a letter from the Turkish Ambassador via
of Armenian ancestry residing in the historic Armenian homeland then situated in facsimile. Letter from Nabi Sensoy, the Turkish Republic's Ambassador to the United
States, to Molly Dwyer, Clerk of the United States Court of Appeals for the Ninth (1937). In Garamendi, the Supreme Court recognized for the first time that
Circuit (December 4, 2008). The letter expresses Turkey's opposition to § 354.4, "presidential foreign policy" itself may carry the same preemptive force as a federal
and urges the court to overturn the California statute. At oral argument, Munich Re statute or treaty. Am. Ins. Assoc. v. Garamendi, 539 U.S. 396, 421, 123 S.Ct.
asked us to take judicial notice of the letter; Movsesian objected. 2374, 156 L.Ed.2d 376 (2003). Unlike in previous cases, the presidential foreign
policy was not contained in a single executive agreement. Instead, the policy was
"embod[ied]" in several executive agreements, as well as in various letters and
We decline to take judicial notice of the letter, because the letter was submitted
statements from executive branch officials at congressional hearings. Id. at 421-23,
after—and apparently in response to—the district court's decision. See, e.g., Ctr. for
123 S.Ct. 2374. In sum, the Court held that in the realm of foreign affairs, "[t]he
Bio-Ethical Reform, Inc. v. City and County of Honolulu, 455 F.3d 910, 918 n. 3
exercise of the federal executive authority means that state law must give way
(2006) (declining to take judicial notice of documents issued after the district court's
where ... there is evidence of clear conflict between the policies adopted by the
decision). Even if we did take notice of the letter, however, it would not alter our
two." Id.
decision in this case.
We review de novo a district court's grant of a Rule 12(b)(6) motion to 1. Express Federal Policy
dismiss. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir.2004). All well-
pleaded factual allegations are to be construed in the light most favorable to the
Munich Re contends that presidential foreign policy prohibits legislative recognition
pleader, and accepted as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127
of an "Armenian Genocide," and that this policy preempts § 354.4. In support of
S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); Johnson v. Riverside Healthcare
this argument, Munich Re points to several failed House Resolutions, H.R. Res. 106,
System, 534 F.3d 1116, 1122 (9th Cir.2008). Ultimately, "when the allegations in a
110th Congress (2007); H.R. Res. 193, 108th Congress (2003); H.R. Res. 596,
complaint, however true, could not raise a claim of entitlement to relief, this basic
106th Congress (2000). Each of these resolutions formally recognized the
deficiency should... be exposed at the point of minimum expenditure of time and
"Armenian Genocide." Each time, the Administrations of President Bush and
money by the parties and the court." Twombly, 127 S.Ct. at 1966(internal quotation
President Clinton took specific action, privately and publicly, to defeat these
marks omitted).
measures.
House Resolution 596, entitled "Affirmation of the United States Record on the
This case presents the issue whether § 354.4 of the California Code of Civil
Armenian Genocide Resolution," "[c]all[ed] upon the President to ensure that the
Procedure interferes with the national government's power to conduct foreign
foreign policy of the United States reflects appropriate understanding and sensitivity
affairs. Munich Re contends that § 354.4 is preempted under the foreign affairs
concerning issues related to human rights, ethnic cleansing, and genocide
doctrine in two ways: first, that it is preempted by the Claims Agreement of 1922,
documented in the United States record relating to the Armenian Genocide, and for
and the War Claims Act of 1928; and second, that it conflicts with the Executive
other purposes." H.R. Res. 596, 106th Cong. (2000). In support of the Resolution,
Branch's policy prohibiting legislative recognition of an "Armenian Genocide." We
the House passed a number of legislative findings, including the following:
conclude that § 354.4 conflicts with Executive Branch foreign policy, and thus, is
preempted. We need not decide the questions whether § 354.4 is preempted by the
Claims Agreement or the War Claims Act. The Armenian Genocide was conceived and carried out by the Ottoman Empire from
1915 to 1923, resulting in the deportation of nearly 2,000,000 Armenians, of whom
1,500,000 men, women, and children were killed, 500,000 survivors were expelled
The Supreme Court has long recognized that the Executive Branch's foreign policy
from their homes, and which succeeded in the elimination of the over 2,500-year
preferences are entitled to preemptive weight when they take the form of executive
presence of Armenians in their historic homeland.
agreements. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69
L.Ed.2d 918 (1981); United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed.
796 (1941); United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134
Id. at § 2(1). In all, the Resolution uses the phrase "Armenian Genocide" at least H.R.Rep. No. 108-130, at 5-6 (2003). The Bush Administration echoed the Clinton
twenty-four times. Administration's belief that "legislation on the issue is counterproductive." Id. at 6.
This time, the Resolution was reported out of committee and calendared, but was
never actually brought to a vote on the floor.
President Clinton personally expressed his opposition to the Resolution in a letter to
Speaker Hastert. Letter to the Speaker of the House of Representatives on a
Resolution on Armenian Genocide, 3 Pub. Papers 2225-26 (Oct. 19, 2000). The c. House Resolution 106
President explained the potential negative impact the Resolution would have on the
nation's foreign policy interests:
In 2007, the House entertained yet another resolution that would provide official
recognition to an "Armenian Genocide." House Resolution 106 was nearly
[I] am deeply concerned that consideration of H. Res. 596 at this time could have indistinguishable from House Resolution 596, discussed above. The Bush
far-reaching negative consequences for the United States. We have significant Administration renewed its opposition to legislative recognition of an "Armenian
interests in this troubled region of the world: containing the threat posed by Genocide" through a joint letter from Secretary of State Condoleezza Rice and
Saddam Hussein; working for peace and stability in the Middle East and Central Secretary of Defense Robert Gates to Speaker Nancy Pelosi. Letter from
Asia; stabilizing the Balkans; and developing new sources of energy. Consideration Condoleezza Rice, Sec'y of State, and Robert M. Gates, Sec'y of Defense, to Nancy
of the resolution at this sensitive time will not only negatively affect those interests, M. Pelosi, Speaker of the House of Representatives (March 7, 2001). The
but could undermine efforts to encourage improved relations between Armenia and Secretaries sent an identical letter to the Minority Leader of the House,
Turkey—the very goal the Resolution's sponsors seek to advance. Representative John Boehner. Letter from Condoleezza Rice, Sec'y of State, and
Robert M. Gates, Sec'y of Defense, to John A. Boehner, Minority Leader of the
House of Representatives (March 7, 2001).
Id. In sum, President Clinton urged the Speaker "in the strongest terms not to bring
this Resolution to the floor at this time." Id.
In their joint letter, the Secretaries underscored the importance of Turkey's
contributions to the war in Iraq. See Letter from Condoleezza Rice and Robert Gates
In addition, several senior-level Administration officials sent letters to the Chairman
to Nancy Pelosi, supra, at 2. The Secretaries noted that when the French Assembly
of the Committee on International Relations, reiterating the Administration's
voted in favor of a similar bill, the Turkish military cut off contact with the French
opposition to the Resolution. H.R.Rep. No. 106-933, at 16-19 (2000). The Assistant
military and terminated defense contracts under negotiation. Id. The Secretaries
Secretary of State expressed the Administration's belief that "legislative measures"
warned that "[a] similar reaction by the Government of Turkey to a House
were not the appropriate means of addressing the "sensitive issue" raised in the
resolution could harm American troops in the field, constrain our ability to supply
Resolution. Id. at 17. The Secretary of Defense and the Undersecretary of Defense
our troops in Iraq and Afghanistan, and significantly damage our efforts to promote
underscored the Administration's concern that the Resolution "would complicate our
reconciliation between Armenia and Turkey[.]" Id. In conclusion, the Secretaries
efforts to build relationships and protect our interests in the region and sustain our
"strongly urge[d] [the Speaker] to refrain from allowing the resolution to reach the
positive relationship with a key, strategically placed ally." Id. at 16-18. The
House floor." Id.
Resolution was reported out of committee, but never brought to a vote on the floor.
The majority holds that California's attempt to regulate insurance does not fall
within the realm of traditional state interests. I disagree. The legislative findings
accompanying California Code of Civil Procedure § 354.4 recognize that thousands
of California residents and citizens have often been deprived of their entitlement to
benefits under certain insurance policies. S.1915, 1999-2000 Reg. Sess. (Cal.2000)
at § 1(b). "States have broad authority to regulate the insurance industry." Am. Ins.
Ass'n v. Garamendi, 539 U.S. 396, 434 n. 1, 123 S.Ct. 2374, 156 L.Ed.2d 376
(2003) (Ginsberg, J. dissenting) (citation omitted). California has not exceeded that
authority merely by "assigning special significance to an insurer's treatment arising
out of a[] [particular] era...." Id. California's interest in ensuring that its citizens are
fairly treated by insurance companies over which the State exercises jurisdiction is
hardly a superficial one.
The strength of this traditional state interest weighs against preemption in a case,
such as the case before us, where there is doubt about the clarity of the conflict
between state law and federal policy. Indeed, there is no conflict. I can find no
evidence of any express federal policy forbidding states from using the term
"Armenian Genocide." The majority accurately states that the "federal government
has made a conscious decision not to apply the politically charged label of
`genocide' to the deaths of [ ] Armenians during World War I." Maj. Op. at 1061.
Nowhere, however, does the majority point to any evidence of an express federal
policy barring states from so doing.
The majority's reliance on Deutsch v. Turner, 324 F.3d 692 (9th Cir.2003), is
misplaced. Whether California has, while acting within its authority to regulate the
insurance industry, intruded upon the province of the federal government has no
bearing on the existence of, or conflict with, an express federal policy applicable to
the states.
There is no express federal policy forbidding California from using the term
"Armenian Genocide" in the course of exercising its traditional authority to regulate
the insurance industry. Accordingly, I dissent. I would affirm the district court.