Ryuichi Shimoda v State (Japan)

• Jurisdiction: Japón
• Court: District Court (Japan)
• Date: 07 December 1963

Japan, District Court of Tokyo.

(Koseki, Presiding Judge; Mibuchi and Takakuwa JJ.)

Ryuichi Shimoda et Al.

and

The State.

INTERNATIONAL LAW IN GENERAL

Subjects of international law — Extent to which individual has rights and duties in international law — Distinction between status of subject for creating norms of law and subject of rights In international law — Whether diplomatic protection is based on right of individual in international law.

International law — Relation to municipal law — Customary international law as part of municipal law — Position under Imperial Constitution of Japan — Position in law of United States of America.

Jurisdiction — Exemptions from — Foreign States — Whether immunity extends to action based on acts contrary to International law — Whether individual can sue United States of America in Japanese court for damage arising out of atomic bombing of Hiroshima and Nagasaki — The law of Japan.

STATE RESPONSIBILITY

State responsibility — Nature and kinds of — In general — Legality of nuclear weapons — Atomic bombing of Hiroshima and Nagasaki — Legality of indiscriminate bombardment of undefended cities and areas — Relevance of distinction in Hague Convention between military and non-military objectives — Whether individual has international claim for damage caused by use of such weapons — Claim against national State based on waiver of alleged international claim against belligerent State — Whether alleged claim included in waiver of claims by Japan in Peace Treaty, Article 19.

State responsibility — Claims — State control over private claims — Absorption of individual's claim in State's claim — Capacity of State to waive individual's claim by treaty — Whether waiver extends to claim under international law as well as to claims under municipal law — Nature of right of diplomatic protection — Treaty of Peace with Japan, 1951, Article 19 (a) — The law of Japan.

Effects of treaties of peace — In general — Waiver of claims by defeated State — Whether waiver extends to claims of nationals under International law as well as to claims under municipal law — Treaty of Peace with Japan, 1951, Article 19 (a).

Air warfare — Legality of nuclear weapons — Atomic bombing of Hiroshima and Nagasaki — Distinction between defended and undefended cities and areas — Legality of indiscriminate bombardment of undefended city or area — Hague Regulations, Article 25 — Hague Convention on Bombardment by Naval Forces, Article 1 — Draft Hague Rules of Air Warfare, 1923 — Whether distinction between military and non-military objectives still valid — Dropping of atomic bomb equivalent to indiscriminate aerial bombardment — Legality of target-area bombardment — Whether atomic weapons are poisonous weapons — Whether they cause unnecessary injury — Waiver of claims in Article 19 of Treaty of Peace with Japan, 1951.

The Facts.—The plaintiffs, Japanese nationals, were all residents either of Hiroshima or of Nagasaki when atomic bombs were dropped on these cities by bombers of the United States Air Force in August 1945. Most of the members of their families were killed and many, including some of the plaintiffs themselves, were seriously wounded as a result of these bombings. The plaintiffs jointly brought the present action against the defendant, the State, for damages on the following grounds: (a) that they suffered injury through the dropping of atomic bombs by members of the Air Force of the United States of America; (b) that the dropping of atomic bombs as an act of hostilities was illegal under the rules of positive international law (taking both treaty law and customary law into consideration) then in force, for which the plaintiffs had a claim for damages; (c) that the dropping of atomic bombs also constituted a wrongful act on the plane of municipal law, ascribable to the United States and its President, Mr. Harry S. Truman; (d) that Japan had waived, by virtue of the provisions of Article 19 (a) of the Treaty of Peace with Japan of 1951, the claims of the plaintiffs under international law and municipal law, with the result that the plaintiffs had lost their claims for damages against the United States and its President; and (e) that this waiver of the plaintiffs' claims by the defendant, the State, gave rise to an obligation on the part of the defendant to pay damages to the plaintiffs.

The plaintiffs' cause of action was based, more specifically, on the provisions of Article 1 of the State Redress Law, which was applicable to the case of injury to a private person through an unlawful act of a government official; on the provisions of Article 29 of the Constitution, which provided for the obligation to pay just compensation in every case of expropriation of private property by the State for public use; and, finally, on unlawful infringement of the rights of the plaintiffs through the omission of the defendant to take appropriate measures for recovery of compensation.

Held: that the action must fail on the merits. The aerial bombardment with atomic bombs of the cities of Hiroshima and Nagasaki was an illegal act of hostilities according to the rules of international law. It must be regarded as indiscriminate aerial bombardment of undefended cities, even if it was directed at military objectives only, inasmuch as it resulted in damage comparable to that caused by indiscriminate bombardment. Nevertheless, the claimant as an individual was not entitled to claim damages on the plane of international law, nor was he able, as a result of the doctrine of sovereign immunity, to pursue a claim on the plane of municipal law. In these circumstances, the plaintiffs had no rights to lose as a result of the waiver contained in Article 19 (a) of the Treaty of Peace with Japan.

The Court said: “I. Evaluation of the act of bombing according to international law,—(1) Whether an atomic bomb as a so-called nuclear weapon is permitted in international law or not is no doubt an important and very difficult question of international law. In the present case, however, the point at issue is whether the act of atomic bombing of Hiroshima and Nagasaki by the United States is to be regarded as illegal in the light of positive international law then in force. It will suffice here therefore to consider this point only.

“(2) As a preliminary for judging how the act of atomic bombing referred to above is to be estimated in positive international law, we will begin by considering what are the rules of international law that have come into existence among modern States with regard to warfare, especially acts of hostilities, since the latter half of the nineteenth century.

“Listed chronologically, the following may be cited as relevant to the present case:

In 1868—St. Petersburg Declaration renouncing the use, in time of war, of explosive projectiles under 400 grammes weight.

In 1899—Convention relative to the laws and customs of war on land, concluded at the First Hague Peace Conference, and its annex, Regulations respecting the laws and customs of war on land.

Declaration concerning the prohibition of the use of bullets which expand or flatten.

Declaration concerning the prohibition of the launching of projectiles and explosives from balloons.

Declaration concerning prohibition of the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases.

In 1907—Convention relative to the laws and customs of war on land, which was concluded at the Second Hague Peace Conference (the revision of the Convention of the same name concluded at the First Hague Peace Conference).

Declaration concerning the prohibition of the launching of projectiles and explosives from balloons.

In 1922—Treaty relating to the use of submarines and noxious gases in warfare.

In 1923—Draft Rules of air warfare.

In 1925—Protocol for the prohibition of the use of asphyxiating, poisonous or other gases and bacteriological methods of warfare.

“(3) The rules contained in these instruments do not include any provisions directly touching upon the atomic bomb, a new weapon which appeared during the Second World War. On the strength of this fact, the defendant State argues that the question of violation of positive international law cannot arise, since the use of an atomic bomb was not expressly prohibited by positive international law inasmuch as there was neither a customary rule of international law nor treaty law prohibiting its use at that time.

“It can naturally be assumed that the use of a new weapon is legal as long as international law does not prohibit it. However, the prohibition in this context is to be understood to include not only the case where there is an express rule of direct prohibition, but also the case where the prohibition can be implied de plano from the interpretation and application by analogy of existing rules of international law (customary international law and treaties). Further, the prohibition must be understood also to include the case where, in the light of principles of international law which are at the basis of these positive rules of international law, the use of a new weapon is deemed to be contrary to these principles, for there is no reason why the interpretation of rules of international law should be limited to literal interpretation, any more than the interpretation of rules of municipal law.

“(4) An argument is also advanced that a new weapon by its very nature cannot be subject to the regulation of international law at all, but the argument is as much unfounded as the one just referred to. Any weapon the use of which is contrary to the customs of civilized countries and to the principles of international law should ipso facto be deemed to be prohibited even if there is no express provision in the law; the new weapon may be used as a legal means of hostilities only if it is not contrary to the principles of international law.

“Against this, some may argue that the invention and use of new weapons has always been...