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Immunity of State Property: Japanese Practice*

Published online by Cambridge University Press:  07 July 2009

Kazuya Hirobe
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Extract

The aim of this paper is to summarize the attitude and practice of Japan with regard to the immunity of the property of foreign states. However, the number of cases of this kind in Japan is rather limited. Generally, the attitude or practice of a state can be determined by examining the practice of its legislature, judiciary and executive. In the case of Japan, however, there are no special laws or regulations concerning the question of execution against property owned by a foreign state. Furthermore, no official views have been stated by the executive on the immunity of a foreign state from Japanese jurisdiction. Therefore, the principal source of Japanese practice concerning state immunity is constituted by court decisions. It is possible to learn much about the position of the Japanese Government through analogies drawn from these cases, and from foreign cases in which Japan has been the defendant. Some treaty provisions concluded by Japan concerning the jurisdictional immunity of state property will also be mentioned.

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 10 , December 1979 , pp. 233 - 244
Copyright
Copyright © T.M.C. Asser Press 1979

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References

1. Daishin-in [Court of Cassation], 28 December 1928, Case No. 218(Ku) of 1928, Daishin-in Minji-hanreishu [Court of Cassation Civil Reports] vol. 7 p. 1128 et seq. AD 1927–1928, Case No. 107 pp. 168–169. The facts of this case were as follows. The plaintiffs, holders of promissory notes drawn by the then Chinese Chargé d'Affaires in Tokyo, alleged that on their maturity the notes, each dated 5 December 1923, and payable on 4 March 1924 at the Tokyo branch office of the Yokohama Specie Bank to Y, who had subsequently endorsed and assigned them to the plaintiffs, had been dishonoured by the Bank at the instance of the defendant state. It was alleged by the plaintiffs that they had protested in due form against the non-payment on 6 March 1924, and thereafter had asked for payment repeatedly at the Chinese Legation. The defendant state had persistently refused to meet its liabilities. Consequently, the plaintiffs had been forced to have recourse to legal proceedings, and had applied to the Tokyo District Court for a decree against the defendant, represented by Wang Jung-pao, Minister Plenipotentiary and Envoy Extraordinary, for the payment of the notes with six per cent interest from 5 March 1924 up to the execution of the decree.

2. Fitzmaurice, G.G., “State Immunity from Proceedings in Foreign Courts”, 9 BYIL (1933) p. 109.Google Scholar

3. Taijudo, K., “Jurisdictional Immunity of States under International Law”, 68 Hogakuronso [Kyoto Law Review] (1959) Nos. 5, 6 p. 117 (in Japanese).Google Scholar

4. Court of Cassation Civil Reports, loc.cit., p. 1135.

5. Ibid. p. 1136.

6. Oda, S., “Jurisdictional Immunity … action with regard to promissory notes”, 16 Betsusatsu Jurisuto [Jurist-Special Issue] (1967) p. 159 (in Japanese).Google Scholar

7. Fukuoka High Court, 15 March 1956, Case No. 27(U) of 1956, Kakyu-saibansho Minji-saibanreishu [Lower Court Civil Reports], Vol. 7 p. 629 et seq. The facts of this case, as alleged by the plaintiffs, were as follows. The plaintiffs were owners of pieces of land which had been made available to the United States Air Force by the Government of Japan without the contractual agreement of the plaintiffs.

8. Tokyo District Court, 23 December 1955, Case No. 151(Wa) of 1953, Kakyu-saibansho Minji-saibanreishu [Lower Court Civil Reports], vol. 6 p. 2679 et seq. The facts of this case were as follows. The defendant, Chuka-kokusai Shinbun-sha [Chinese International Newspaper Company], a corporation organized under Japanese Law by Chinese nationals, was financed by the delegation of the Republic of China through a loan of $ 20,000 on 1 June 1950, on condition that the newspaper company would repay the loan to the delegation on or before 31 May 1951.

This case went to the High Court on appeal. Chuka-kokusai Shinbunsha, et al. v. The Republic of China, Tokyo High Court, 18 July 1957, Case No. 104(Ne) of 1956, Kakyu-saibansho Minji saibanreishu [Lower Court Civil Reports], vol. 8, p. 1282 et seq.

9. The Republic of China v. Yu Ping-chen et al., Kyoto District Court, 16 September 1977, Case No. 1025(Wa) of 1967, Hnrei Jiho.

10. Linbin Tyk Tin Rat v. The Union of Burma, Tokyo District Court, 9 June 1954, Case No. 9952(Yo) of 1953, Kakyu-saibansho Minji-saibanreishu [Lower Court Civil Reports], vol. 5, p. 836 et seq.

11. Taijudo, op.cit., p. 118.

12. Shino Iinuma et al. v. Government of Japan, Tokyo District Court, 19 September 1960, Case No. 5329(Wa) of 1954, Kakyu-saibansho Minji-saibanreishu [Lower Court Civil Reports], vol. 11, p. 1931 et seq. The facts of this case were as follows. A., who was the husband and father of the plaintiffs, had a lease of land owned by B. The United States of America made an application to the defendant, the Japanese Government, for approval and acquisition of the land owned by B. in accordance with “Cabinet Order for Acquisition of Rights of Property by Foreign Governments” (Cabinet Order, No. 311 of 1949). The Japanese Government approved the application and purchased the land from B. in order to transfer it to the United States Government on 30 December 1950, by virtue of the Order. The defendant then transferred the land to the United States of America free of any leasehold. A was able to claim his leasehold on the land against the United States Government in accordance with Article 10 of the “Special Act for Leased Land and Rented Houses in the Stricken Urban Area”.

13. Taijudo, op.cit., p. 120.

14. Oda, op.cit., p. 159.

15. In re Hoover, Aomori District Court, 14 February 1956, Case No. 4(Ho) of 1955, Rodo-kankei Minji-saibanreishu [Labour Relations Civil Reports], vol. 7, pp. 103 et seq. The Japanese Annual of International Law, vol. 2(1958), p. 140 et seqGoogle Scholar. Matsutoshi Suzuki et al. v. Tokyo Civilian Open Mess (1957), Tokyo District Court, 16 March 1957, Case No. 6164(Wa) of 1955, Rodokankei Minji-saibanreishu [Labour Relations Civil Reports], vol. 8, p. 243 et seq. The Japanese Annual of International Law, vol. 2 (1958), p. 144 et seqGoogle Scholar. In re Tokyo Civilian Open Mess (1957), Tokyo District Court, 20 April 1957, Case No. 435(ho) of 1957, Rodo-kankei Minji-saibanreishu [Labour Relations Civil Reports], vol. 8, p. 255 et seq. Masaji Niikura v. Japan Central Exchange (1960), Yokohama District Court, 19 May 1960, Case No. 4(Yo) of 1957, Rodo-kankei Minji-saibanreishu [Labour Relations Civil Reports], vol. 11, p. 527 et seq. These four cases related to unfair labour practices. Japanese workers, who were employed in the facilities of the United States Forces in Japan and were discharged, claimed nullity of the discharges due to unfair labour practices under the Japanese Labour Union Law, and sought to be reinstated in their respective positions and payment of wages during the period up to the time of reinstatement. In the first and third cases, the District Labour Relations Board recognized the discharge of a Japanese worker employed in the facilities mentioned above as an unfair labour practice, and rescinded the discharge order. The responsible persons at the facilities mentioned above failed to abide by the decree. The Board therefore reported to the courts in accordance with the Labour Union Law.

16. Standard Oil Company of California v. Charles G. Johnson, the Supreme Court of the United States, 1 June 1942, 316 US 481, 86 Law ed. 1611.

17. Chie Yamaguchi et al. v. 8th Fighter-Bomber Fleet of the United States Air Force and Lincoln C. Mackey (1956), Fukuoka District Court, 23 March 1956, Case No.26(Yo) of 1956, Rodo-kankei Minji-saibanreishu [Labour Relations Qvil Reports], vol. 7, p. 351 et seq. The facts of this case were almost the same as the four cases mentioned above.

18. Administrative Agreement under Article 3 of the Security Treaty between Japan and the United States of America, signed on 28 February 1952, Article 18.

19. Taijudo, op.cit., p. 119.

20. Government of Japan v. Kulikov, Asahikawa District Court, 19 February 1954, Hanrei Jiho [Judicial Reports] No. 21, p. 23 et seq. The facts of this case were as follows. The accused, a national of the Union of Soviet Socialist Republics, was the captain of Patrol-Boat PK.1403, which belonged to the Sakhalin Fishing Board, and was under the control of the East Sakhalin State Trust of the Union of Soviet Socialist Republics. He was aboard the patrol-boat without a valid passport or seaman's pocket book, and took a Japanese, Sanjiro Seki, on board the said patrol-boat in Sakhalin County in order to let him land secretly on Japanese territory. The patrol-boat arrived in Japanese territorial waters near the coast of Soya-gun on 8 August to take Sanjiro Seki secretly to Sakhalin County.

21. The Ministry of Foreign Affairs ed., Nisso Kosho-shi [The History of Japan-Soviet Negotiations], 1942 (reprinted 1969), p. 106 et seq.

22. Giacomo Federici v. The Government of Japan, The Civil Tribunal of Rome, 24 June 1963. The facts of this case were as follows. The plaintiff, an Italian national, claimed that in September 1943, Japanese troops occupying the city of Shanghai had invaded the premises where the plaintiff, who was residing in Italy when he brought an action, had his commercial offices in Shanghai, and carried away his goods and money. “The Allied Nationals' Properties Adjustment Commission of the Japanese Liaison Office in Shanghai” acknowledged, by its statement of 17 January 1946, that goods and property had been requisitioned by the Japanese troops to the detriment of Federici to the equivalent of the sum of $638,050, and that the Japanese Government was to be held responsible for the damage and its reimbursement, as claimed by the plaintiff. The plaintiff claimed compensation from the Government of Japan before the Civil Tribunal of Rome on 8 January 1959. See, Ribot Hatano, [The Problem of War Compensation Claims against Japan by Italy … an aspect of the so-called Federici Case] Jurisuto [Jurist], No. 376, p. 94 et seq. (in Japanese).

23. Zavicha Blagojevic v. The Bank of Japan, Tribunal de commerce de Paris, 19 September 1972, Cour d'appel de Paris, 16 March 1974, Cour de Cassation, 19 May 1976.

24. Signed on 2 April 1953, entered into force on 30 October 1953.

25. See, for example, the following provisions of the “Treaty of Amity and Commerce between Japan and the Republic of Indonesia”, signed on 1 July 1961, entered into force on 8 March 1963. Art. 2, para.1: “Nationals and companies of either Party shall be accorded, within the territory of the other Party, treatment no less favourable than that accorded to nationals and companies of any third country with respect to all matters pertaining to the levying of taxes, access to the court, rights to property, participation in juridical entities, and generally the conduct of all kinds of business and professional activities”. Protocol, para. 3: “As used in the Treaty, the term ‘companies’ means corporations, partnerships, companies and other associations, engaging in commercial, industrial, financial and other business activities for gain”. Exchange of Notes regarding the implementation of the Treaty, Indonesian Note, para. 3: “With reference to paragraph 3 of the Protocol, it is confirmed that state-trading enterprises of either Party will be regard as companies as defined in the said paragraph”.

26. Signed on 9 May 1956, entered into force on 23 July 1956. Other examples are, “Reparation Agreement between Japan and teh Republic of Indonesia”, signed on 20 January 1958, entered into force on 15 April 1958, see Art. 6; “Agreement between Japan and the Union of Burma on Economic and Technical Cooperation”, signed on 25 October 1963, entered into force on 29 March 1963 see, Art. 6.

27. Signed on 6 December 1957, entered into force on 9 May 1958. The basis of the Annex is the Treaty, Art. 11: “Japan agrees to the establishment of the Trade Representation in Japan by the Union of Soviet Socialist Republic, since the monopoly on foreign trade in the Union of Soviet Socialist Republics, is vested in the State according to its law. The juridical status of the Trade Representation is determined by the provisions of the Annex to this Treaty being an integral part thereof”.

28. Signed on 20 October 1975, entered into force on 9 September 1976. On state enterprises, this Treaty provides that if a Contracting Party establishes or maintains a state enterprise or grants to any enterprise, formally or in effect, exclusive or special privileges, such enterprise is to act in a manner consistent with the general principles of non-discriminatory treatment. However, this does not relate to jurisdiction, but to commercial activities, such as purchase or sale (Art. 6). Other examples are the “Treaty on Commerce between Japan and the Czechoslovak Republic”, signed on 15 December 1959, entered into force on 26 September 1960, Arts. 7 and 9, and “Treaty of Commerce and Navigation between Japan and the People's Republic of Bulgaria”, signed on 28 February 1970, entered into force on 5 August 1970, Arts. 6 and 9.