1 7 Taihan Minshû 1128 (Great Ct. Judicature Dec. 28, 1928), translated in 4 Ann. Dig. 168; Iwasawa, Yuji, Japan’s Interactions with International Law: The Case of State Immunity, in Japan and International Law: Past, Present and Future 123, 126 (Ando, Nisuke ed., 1999)Google Scholar.

2 1612 Hanreijihõ 101 (Tokyo Dist. Ct. Mar. 14, 1997), translated in 41 Japanese Ann. Int’l L. 91 (1998) [hereinafter District Court judgment].

3 1665 Hanreijihõ 64 (Tokyo High Ct. Dec. 15, 1998), translated in 42 Japanese Ann. Int’l L. 138 (1999) [hereinafter High Court judgment].

4 Agreement Under Article VI of the Treaty of Mutual Cooperation and Security Between Japan and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in Japan, Jan. 19, 1960, Japan-U.S., 373 UNTS 207, reprinted in U.S. Dep’t of the Army, 2 Selected International Agreements 98 (1976) (Pamphlet 27–24), available at <http://www.army.mil/usapa/epubs/pdf/p27_24.pdf>.

5 56 Minshû 729 [hereinafter Supreme Court judgment]. All translations from the Court’s decision are by the author. A forthcoming issue of International Law Reports will include a complete translation.

6 By “conventional” immunity the writer means immunity granted by an international agreement between the states concerned, as distinct from immunity under customary international law. For a view similar to that of the Court, see Yoshiko, Naiki, Gaikoku Kokka no Saibanken Menjo [Jurisdictional Immunity of Foreign States], 1195 Jurisuto 129, 132 (2001)Google Scholar (note on High Court judgment, supra note 3).

7 Supreme Court judgment, supra note 5, at 731.

8 Id. at 732.

9 Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 199 UNTS 67, available at <http://www.nato.int/docu/basics.htm>.

10 See Meron, Theodor, Some Reflections on the Status of Forces Agreements in the Light of Customary International Law, 6 Int’l & Comp. L.Q. 689, 694 (1957)Google Scholar; Lazareff, Serge, Status of Military Forces Under Current International Law 299–300 (1971)Google Scholar; Woodliffe, John, The Peacetime Use of Foreign Military Installations Under Modern International Law 215–16 (1992)Google Scholar.

11 See also Satoru, Taira, Kokha no Saibanken Menjo [Jurisdictional Immunity of States], 1135 Jurisuto 279, 279 (1998)Google Scholar (note on District Court judgment, supra note 2); but see Tomoyuki, Yuyama, Hanrei Kaisetsu: Yokota Kichi Yakan Hikō Sashitome Soshō [sic] tō Seikyū Jiken Saikōsai Hanhetsu [Case Note: Supreme Court Judgment in the Yokota Base Case], 247 Hōrei Kaisetsu Siryō Sōran 107, 108 (2002)Google Scholar.

12 1225 Hanrei Jihō 45 (Yokohama Dist. Ct. Mar. 4, 1987), translated in 31 Japanese Ann. Int’l L. 211 (1988)Google Scholar; 759 Hanrei Taimuzu 254 (Tokyo Dist. Ct. Sept. 25, 1990), translated in 35 Japanese Ann. Int’l L. 151 (1992)Google Scholar. While thus exercising jurisdiction, the courts held that the members were not individually responsible to the victims as a matter of substantive law.

13 Article 18(5) (f) provides: “Members or employees of the United States armed forces . . . shall not be subject to any proceedings for the enforcement of any judgment given against them in Japan in a matter arising from the performance of their official duties” (emphasis added). Article 18(9) (a) provides: “The United States shall not claim immunity from the jurisdiction of the courts of Japan for members or employees of the United States armed forces in respect of the civil jurisdiction of the courts of Japan except to the extent provided in paragraph 5(f) of this Article.”

14 See High Court Judgment, supra note 3, at 67; but see Taira, supra note 11, at 280.

15 The question remains whether the term “[c]laims” in Article 18(5) covers claims not only for damages, but for injunctions. Compare Taira, supra note 11, at 280 (suggesting that the term covers injunctive relief) with Kazuya, Hirobe, Beigun ni Kansuru Saibanken Menjo [Jurisdictional Immunity Concerning the U.S. Armed Forces], 1157 Jurisuto 282, 284 (1999)Google Scholar (note on High Court judgment, supra note 3; suggests that the term does not cover injunctive relief and that it might be possible to bring such actions against the United States).

16 Some might argue that the rule for distributing the cost of damage awards (Article 18(5) (e)) applies also in proceedings brought against the United States alone and that the incompatibility noted above would thus not remain. Yet the argument would deprive Article 18(5)—which provides that “[c]laims . . . shall be dealt with by Japan in accordance with the following provisions” and that “payment of the amount agreed upon or determined by adjudication shall be made by Japan” (emphasis added)—of much of its significance. For this reason and others, the writer finds the foregoing argument unpersuasive.

17 The writer is of the view that there might exist under customary international law special rules of immunity for visiting armed forces. See Tomonori, Mizushima, One Immunity Has Gone. . . Another. . . : Holland v Lampen-Wolfe, 64 Mod. I.. Rev. 472, 473–74 (2001)Google Scholar; see also Fox, Hazel, The Law of State Immunity 461 (2002)Google Scholar. In the Yokota Base case, however, the Supreme Court applied customary international law on state immunity in general. This case might therefore strengthen ‘the possibility of immunity of the [visiting] force from the local jurisdiction on grounds similar to those underlying state immunity in general.’ 1 Oppenheim’s International Law 1157–58 (Robert Jennings & Arthur Watts eds., 9th ed. 1992).

18 For a succinct account in English of Japanese practice on state immunity, see Iwasawa, supra note 1. See also Hirobe, Kazuya, Immunity of State Property: Japanese Practice, 10 Neth.Y.B. Int’l L. 233 (1979)CrossRefGoogle Scholar.

19 District Court judgment, supra note 2, at 102. For a blunt criticism of this part of the judgment, see Taira, supra note 11, at 279.

20 High Court judgment, supra note 3, at 68–69.

21 Cresh Co. v. Nauru Finance Corp., 1740 Hanreijiho 54 (Tokyo Dist. Ct. Nov. 30, 2000), translated in 44 Japanese Ann. Int’l L. 204 (2001).

22 Dōgauchi, Masato, Seigen Menjo Shugi ni yoru Saibanken no Kŏtei [Affirmation of Jurisdiction in Accordance with the Restrictive Immunity Theory], 1202 Jurisuto 297, 298 (2001)Google Scholar (note on Cresh Co. v. Nauru Finance Corp.).

23 In Nauru Finance Corp., 1740 Hanrei Jihō at 58–59, the Tokyo District Court held that a waiver of immunity in an agreement between a private person and a foreign state was relevant to the question of immunity. This position is a departure from the Matsuyama case, 7 Taihan Minshū 1128, 1135 (Great Ct. Judicature Dec. 28, 1928), where the Court held that a waiver of immunity was a matter between the states concerned and that an agreement such as the one in Nauru Finance Corp. was legally irrelevant. See also Iwasawa, supra note 1, at 127–28.

24 X. and Y. v. Republic of the Marshall Islands, 1067 Hanrei Taimuzu 263, 264 (Tokyo Dist. Ct. Oct. 6, 2000)Google Scholar.

25 X. and Y. v. Republic of the Marshall Islands, 1124 Kin’yū Shōji 36 (Tokyo High Ct. Dec. 19, 2000)Google Scholar.

26 Tomohito, Usuki, Gaikoku Kokka no Saibanken Menjo [Jurisdictional Immunity of Foreign States], 1224 Jurisuto 307, 308–09 (2002)Google Scholar (note on X. and Y. v. Republic of the Marshall Islands).

27 1124 Kin’yū Shōji at 38.

28 See Dai, Yokomizo, Eijūken Fuyo ni Kansuru Gōi ni Motozuku Gaikoku Kokka ni Taisuru Futōritoku Henkan Seikyū [Claim for Money Had and Received, Against a Foreign State, Based upon an Agreement Concerning the Grant of the Right of Permanent Residence], 1231 Jurisuto 196, 199 (2002)Google Scholar (note on X. and Y. v. Republic of the Marshall Islands).

29 It is doubtful, however, whether the absolute theory was actually a rule of international law in the past. See generally Isabelle, Pingel-Lenuzza, Les Immunités Des Etats En Droit International (1998)Google Scholar.

30 Supreme Court judgment, supra note 5, at 731.

31 Id.

32 See Kazuya, Hirobe, Gaikoku Kokka (Chūryū Beigun) ni Taisuru Saibanken Menjo [Jurisdictional Immunity for a Foreign State (the Visiting U.S. Armed Forces)], 269 Hōgaku Kyōshitsu 164, 165 (2003)Google Scholar (note on Supreme Court judgment, supra note 5); but see Yuyama, supra note 11, at 107 (commenting that the Supreme Court did state that it adopted the restrictive theory).

33 The Supreme Court of Poland still adheres to the absolute theory. See Wyrozumska, Anna, The State Immunity in the Practice of Polish Courts, 24 Polish Y.B. Int’l L. 77 (1999–2000)Google Scholar.

34 See also Fox, supra note 17, at 257–58.

35 Supreme Court judgment, supra note 5, at 731.

36 See, e.g., Schreuer, Christoph H., State Immunity: Some Recent Developments 44 (1988)Google Scholar.

37 See, e.g., Letelier v. Republic of Chile, 488 F.Supp. 665 (D.D.C. 1980) (immunity denied despite the apparently sovereign character of the act at issue).

38 See, e.g., Prefecture of Voiotia v. Federal Republic of Germany, Case No. 11/2000 (Hellenic Sup. Ct. May 4, 2000) (discussed in case report by Gavouneli, Maria & Bantekasat, Ilias 95 AJIL 198, 199 (2001)Google Scholar); but see Fox, supra note 17, at 412 (questioning the approach of the Hellenic Supreme Court since “the injury was sustained in time of war by the armed forces of an occupying government”).

39 See Tomonori, Mizushima, Fuhōkōi Soshō ni Okeru Kokusaihō jō no Gaikoku Kokka Menjo [Foreign State Immunity Under International Law in Tort Proceedings] (pts. 1 & 2), Hōgaku Ronsō [Kyoto L. Rev.], Sept. 2002, at 120, & Dec. 2002, at 113Google Scholar.

40 In a Canadian case raising a similar question, the Supreme Court of Canada affirmed the interpretation by the Court of Appeal for Ontario that “personal injury” in section 6(a) of the Canadian State Immunity Act, R.S.C., ch. S-18 (1985), reprinted in 21 ILM 798 (1982), required physical injury. Schreiber v. Canada (Attorney General), 216 D.L.R. 513 (Sup. Ct. 2002), aff’g 196 D.L.R. 281 (Ontario C.A. 2001). With an amendment made by the Federal Law-Civil Law Harmonization Act, No. 1, Act of May 10, 2001, S.C. 2001, ch. 4, §121 (1), available at <http://www.parl.gc.ca/PDF/37/1/parlbus/chambus/house/bills/government/S-4_4.pdf>, the relevant part of section 6(a) now reads “personal or bodily injury.”

41 Section 13(2) of the UK State Immunity Act, 1978, c. 33, reprinted in 17 ILM 1123 (1978), provides that relief shall not be given against a state by way of injunction. See also Fox, supra note 17, at 508.