Rights-Based Approaches to Examining Waiver Clauses in Peace Treaties: Lessons from the Japanese Forced Labor Litigation in Californian Courts

Abstract

Waiver clauses, which purport to bar claims for reparations, appear in numerous historical and contemporary peace agreements, including in the 1951 Treaty of Peace with Japan. This Article questions the validity of many such waivers under the Constitution and applicable international law. However, as demonstrated in a series of federal court decisions from 2000 to 2003 which rejected the reparations claims of former forced laborers in wartime Japan, judges are induced by political considerations to uphold the validity of waiver clauses. How can courts reconcile their duty to protect the fundamental rights of claimants with the realpolitik considerations at play? One answer lies in adopting established interpretive approaches to limit the scope of a waiver clause. The waiver clause in the 1951 Treaty, like many of its counterparts in other treaties, contains several ambiguities. This Article outlines three rights-based interpretive approaches and demonstrates how these could have been invoked to construe one particularly ambiguous aspect of the waiver in the 1951 Treaty, in a manner which would have reconciled competing policy imperatives.