Tokyo Suikosha v Tokyo Masonic Association

• Jurisdiction: Japón
• Court: District Court (Japan)
• Date: 28 February 1966

Japan, Tokyo District Court.

(Nakada, Kato and Isobe, Judges1)

Tokyo Suikosha

and

Tokyo Masonic-Lodge Association and Tokyo Masonic Association

TREATIES

Treaties In general Function of treaties Treaties as a source of international law Whether rule of international law can be overridden by treaty Position in case of conflict with supreme ideal of law The law of Japan

War and neutrality Warfare on land Occupation of enemy territory Respect for private property Whether a principle of customary international law Whether applicable in the Second World War Whether possible to do away with the principle by treaty The law of Japan

INTERNATIONAL LAW IN GENERAL

International law in general Sources General customary law and special law General agreements and special agreements Whether special law prevails in case of conflict Whether rule of international law can be overridden by treaty Principle of respect for private property in occupied territory in time of war Whether a rule of customary international law How established as a rule of customary international law Whether a supreme ideal of law Whether prevails over treaties in conflict with it The law of Japan

Summary: The facts:The plaintiff was a juristic body, formed for the purpose of research in sciences concerning the Japanese navy, and owned immovable property. In 1946 the Allied Powers directed the dissolution of various associations and organizations in Japan. The plaintiff had already been dissolved but in pursuance of a direction of the Allied Powers was again dissolved by the Japanese Government. Japan was required to accept an Instrument of Surrender which provided for the disarmament and demilitarisation of Japan and authorised the Supreme Commander of the Allied Powers to take steps to effectuate the terms of surrender. By a Memorandum dated 1 March 1948 the Supreme Commander directed inter alia the transfer of the plaintiff's property to the Japanese Government. On 19 August 1948 the Japanese Government ordered the vesting of the plaintiffs property in the National Treasury. The first defendant and later the second defendant became the owner of the property. The plaintiff claimed title to the property. It contended that the vesting was in contravention of the principle of international law concerning respect for private property in occupied territory in time of war (in which position, so the plaintiff contended, Japan then was) as contained in Article 46 of the Hague Convention Respecting the Laws and Customs of War on Land 1907. The defendants contended that the Convention only applied between parties to the Convention. Since all the Allied Powers were not parties to the Convention the Convention was not applicable.

Held:(l) The principle of respect for private property in occupied territory had become established as a principle in international customary law through approval by States. The principle accordingly applied even if the Convention did not.

(2) The principle however was not a supreme ideal of law accepted by all States and could not prevail over treaties in conflict with it.

(3) Although Japan had been required to accept the Instrument of Surrender it was a treaty binding on Japan.

(4) The Instrument of Surrender dispensed with the principle in certain cases. Although there was no express provision which required the taking away of private property, the implementation of the treaty necessitated such a taking.

(5) The plaintiff's claim would accordingly be dismissed.

The Court set out the contentions of the parties, found that the plaintiff had the capacity to institute the proceedings and continued: ......

II. Whether there are facts alleged by the plaintiff as cause of the claims.

There is no controversy between the parties as to the following facts alleged by the plaintiff in the course of the claims.

1. The plaintiff was a juridical person which was organized by the present and former high officers and civil officials of the former Japanese Navy, and the purpose was to engage in research in sciences concerning the Navy and to promote friendship among members and to provide conveniences for...