Foreign Relations of the United States, 1958–1960, Japan; Korea, Volume XVIII

50. Telegram From the Embassy in Japan to the Department of State⁰

Tokyo, April 29, 1959, 11 p.m.

2237. Secnog 5. CINCPAC exclusive for POLAD and Admiral Felt. COMUS Japan exclusive for General Burns. Following are Japanese proposed modifications of administrative agreement, together with explanations offered by Fujiyama. Modifications are based on text of existing administrative agreement, as amended by US proposal (Deptel 1029) which we transmitted to GOJ on March 6 (Embtel 1806).¹

1. Title.

Present wording: “Administrative agreement under Article II of the Security Treaty between the United States of America and Japan”.

Proposed wording: “Agreement regarding facilities and areas in the status of United States Armed Forces in Japan”. Reason for proposal: The word “administrative” translates into Japanese as “executive” and is not used in agreements which are submitted to Diet for ratification.

2. Preamble.

Present wording: “The Governments of Japan and the United States of America, et cetera”.

Suggested change: Delete words “The Governments” at beginning of preamble.

Reason for change: Since agreement will come before Diet for ratification, Japanese must avoid form which in Japanese would be used for executive agreement.

3. Preamble.

Present wording: Last line refers to “administrative agreement”.

Suggested change: Drop the word “administrative”.

Reason for change: same as under “Title”.

4. Article 1(B).

Present wording: “‘Civilian component’ means the civilian persons of United States nationality who are in the employ of, serving within or accompanying the United States Armed Forces in Japan . . . et cetera”.²

Proposal: To amend passage by eliminating words “serving with” so that it will read: “‘Civilian component’ means the civilian persons of United States nationality who are in the employ of and accompanying the United States Armed Forces in Japan . . . et cetera”.

Reason for proposed change: Japanese feel words “serving with” are either ambiguous or redundant. They believe it was not intended to imply that certain civilian persons might be serving with the US Armed Forces without being in their employ. They also feel that “or accompanying” seems to set up separate category of persons who are neither in the employ of US forces nor serving with them but nevertheless accompanying them. Such persons would seem to be covered in paragraph I (C). Japanese believe their proposal will merely tighten up language, making it more understandable and hence defensible, without change in substance.

5. Article I (B).

Proposal: To delete “or who are mentioned paragraph 1 (B) of Article XIV.”

Reason for proposed change: If proposal in paragraph above is accepted, there would be no need for phrase “or who are mentioned in paragraph 1 (B) of Article XIV.” That phrase appears to have been originally inserted in view of possible doubt whether Article XIV contractors might be covered by Article I (B) and specifically excluded them. Japanese proposal to clarify definition would remove any such doubt and therefore exclusion of such persons would no longer have to be specifically stated.

6. Article II paragraph 1.

Proposal: Reword as follows: “1. A. The United States of America is granted, under Article VI of the Treaty of Mutual Cooperation and Security, the use of facilities and areas in Japan. Agreements as to specific facilities and areas shall be concluded by the two governments through the joint committee provided for in Article XXV of this agreement. Facilities and areas–include existing furnishings, equipment and fixtures necessary to the operation of such facilities and areas.

B. The facilities and areas of which the United States of America has the use at the time of expiration of the administrative agreement under Article III of the Security Treaty between Japan and the United States, shall be considered as the facilities and areas agreed upon between the two governments in accordance with subparagraph (A) above.”

Reason: GOJ considers that proposed formulation would give us stronger assurance of continued use of present facilities and areas than our proposal, which would have essentially old language of paragraph 1 emplified by exchange of notes as per Embtel 1263³ and Deptel 1029. As pointed out in Embtel 2232⁴ that exchange of notes would not have clearly covered unagreed facilities and areas whose use we have under Rusk–Okazaki exchange of notes of February 28, 1952. Moreover, second sentence in paragraph 1 of old administrative agreements (“agreements as to specific facilities and areas not already reached by the two governments by the effective date of this agreement, shall be concluded. . . etc.”) would not necessarily have assured us of continued use of such facilities.

Rather than strengthen the exchange of notes which we had proposed and which would have been classified, we thought it preferable to have GOJ grant us explicitly the continued use of all facilities and areas in new agreement. Our modifications in paragraph 1 (A) pick up operative language from Article VI of new Mutual Security Treaty and eliminate language in second sentence of present paragraph 1 which would be unnecessary in view of sweeping public assurance of continued use of facilities and areas in paragraph (B).

I believe that by accepting proposed modifications, we gain two advantages: Attention will not be publicly drawn to fact that there are still facilities and areas in use by US forces without Japanese agreement seven years after an exchange of notes which had contemplated such agreement within “ninety days”. In addition, we obtain clear assurance of our rights to facilities and areas since language will now be integral part of new agreement regarding facilities and areas.

Since assurance of continued use of facilities and areas would be contained in body of new agreement itself, exchange of notes (Embtel 1263 and Deptel 1029) would be confined to confirmation regarding continued validity of decisions, etc. of joint committee.

7. Article II paragraph 4 (A).

Proposal: To amend subparagraph to read: “When facilities and areas are temporarily not being used by the United States Armed Forces, the Japanese Government may make, or permit Japanese nationals to make, interim use of such facilities and areas provided that it is agreed between the two governments that such use would not be harmful to the purposes for which the facilities and areas are normally used by the United States Armed Forces”.

If foregoing amendment is accepted, the words “such” and “as target ranges and maneuver grounds” in paragraph 4 (B) would also be dropped for same reason.

Reason for proposed change: Japanese realize that intent of singling out “target ranges and maneuver grounds” was to illustrate some facilities and areas rather than to place limitation on facilities and areas whose interim use might be granted.

They feel that without change in substance, appearance of this paragraph could be considerably improved by deleting the illustrative clause. They also feel that unused facilities and areas should not be turned over to Japanese nationals without knowledge or authority of Japanese Government, and have therefore inserted language which would without diminishing US control appear to leave to Japanese Government appropriate authority over interim use.

8. Article III paragraph 1.

Question re wording of first sentence: Since every single word of new administrative agreement will come in for close scrutiny in Diet, and GOJ will be called upon to explain need for them, they have asked whether “rights” might not convey all the substantive meaning that is contained in the words “rights, power and authority”; and whether “operation and control” might not convey all the substantive meaning contained in the words “establishment, use, operation, defense or control”. If there are reasons for full phrases Japanese would appreciate having them so as to be better able to defend them in Diet questioning.

9. Article III paragraph 2.

Question re need for last sentence: Japanese believe sentence to be obsolete. What was temporary seven years ago they say has long since been replaced by specific arrangements concluded under second sentence of paragraph 2 and such arrangements are working satisfactorily. GOJ is not proposing deletion of sentence if it has any remaining substantive significance. If it has, they request full explanation in order to be able defend this provision before the Diet.

10. Article V paragraph 1.

Proposal: To have second sentence read “When cargo or passengers not accorded the exemptions of this agreement are carried on such vessels and aircraft, notification shall be given to the appropriate Japanese authorities, and their entry and departure from Japan shall be according to the laws and regulations of Japan”.

Reason for proposed change: Japanese feel that cargo or passengers not entitled to exemptions of administrative agreement should not only enter but also leave according to laws and regulations of Japan. Absence of provision to that effect might give rise to questions in Diet. They believe that suggested modification would involve no significant difference for US interest but would permit GOJ better to defend this article in Diet debate.

11. Article V paragraph 2.

Present ending of paragraph: “. . . between such facilities and areas and the port of Japan”.

Proposals: (A) To reword ending so as to read “. . . between such facilities and areas and the port or airports of Japan”. (B) To add new sentence reading “Such access to and movement between facilities and areas by United States military vehicles shall be free from toll or other charges”.

Reason for proposals: (A) GOJ believes “airports” was inadvertently omitted since both vessels and aircraft are mentioned in paragraphs 1 and 2 of Article V. (B) New final sentence takes up presently effective element of official minutes of February 26, 1952 regarding Article V.

As to freedom from toll and other charges, GOJ legal experts say this provision was not properly a minute since it extended, rather than interpreted, substance of Administrative Agreement. Since it involves expenditure of Japanese Govt funds, GOJ would prefer to have authority for such expenditures derive from explicit Japanese undertaking in new agreement. (Proposed wording covers only military vehicles because private vehicles of US personnel are, by earlier agreement in joint committee, not covered by official minutes.) From US point of view, new addition would seem an improvement.

12. Article VIII.

Present wording of article includes phrases (1) “under the present procedures, subject to such modifications as may from time to time be agreed”; (2) “or as may result from Japan’s becoming a member of the International Civil Aviation Organization or the World Meteorological Organization”; and (3) “(ships) assigned to positions known as ‘X’ and T”.

Proposal: To delete the passages referred to above. In addition, “Central Meteorological Observatory” should be changed to “Meteorological Agency.”

Reason for proposed change: “Present procedures” in this article referred to procedures in effect under the occupation, which have long since been modified by mutual agreement. Japan has also long since become member of ICAO and WHO. Furthermore there no longer exists reason to single out positions of weather ships. (Position “T” no longer exists.) Meteorological Agency was created since signature of present Administrative Agreement. Proposed changes would involve no substantive difference but would reflect presently existing situation.

13. Article IX paragraph 1.

Proposal: To reword paragraph 1 so as to read: “The Government of Japan grants permission to members of the United States Armed Forces, the civilian component, and their dependents to enter into and depart from Japan. The United States authorities shall appropriately notify the Government of Japan of the number of persons entering and departing, the date of entry and departure, the object of entry, and the expected duration of stay.

Reason for proposed change: In addition to “conforming” change which would remove the word “right” (paragraph 1–C Deptel 1029), Japanese would like to include same language US agreed to, and Diet ratified, in UNSOF and be notified of numbers of persons of various categories entering and departing. They feel this would not change substance but would improve appearances for Japanese. In answer to my question about meaning of “object of entry” Fujiyama said Japanese would consider it sufficient for US to indicate whether persons entering or departing were members of US forces, civilian component, or dependents. He also pointed out that only totals, and not names, would be expected to be furnished to Japanese authorities.

14. Article IX paragraphs 3 (b) and 4.

Proposal: To reword second sentence paragraph 3 (b) so as to read “for purposes of their identification while in Japan, members of the United States Armed Forces shall be in possession of the foregoing personal identifying card which must be presented on demand to the appropriate Japanese authorities.” Also amend paragraph 4 to read “members of the civilian component, their dependents, and the dependents of members of the United States Armed Forces shall be in possession of appropriate documentation issued by the United States authorities which must be presented on demand to the appropriate Japanese authorities so that their status may be verified upon their entry into or departure from Japan, or while in Japan.”

Reason for proposal: Public appearances would be considerably improved if the relevant paragraphs not only stated that American personnel required appropriate documentation but also that they should present it on demand to appropriate Japanese authorities. Japanese feel this must clearly have been intent of original wording, since compliance with the provisions in question could only be verified in such manner and since even diplomats must produce identity documents when so requested by authorities. Moreover, in existing practice Japanese authorities are invariably being shown identity documents when they request it. Accordingly, GOJ feels that spelling out such requirement would not involve difference in substance or practice.

15. Article IX paragraph 5.

Proposal: To add to paragraph 5 new final sentence “If the Japanese Government, for good cause, has requested the removal from its territory of a member of the United States Armed Forces, or of the civilian component, or a dependent, the United States authorities shall be responsible for causing the said person to leave Japan without delay.”

Reason for proposed change: Japanese wish to add provision that if GOJ has good cause to request removal of an individual from Japan, he will be so removed. Such addition would improve public appearance of agreement and is believed to involve little, if any, change from present situation since even Ambassadors can be declared persona non grata and be asked to leave without delay.

16. Article XI paragraph 2.

Present wording: This long paragraph dealing with duty-free imports refers in two places both to “the United States Armed Forces, the authorized procurement agencies of the United States Armed Forces, or the organizations provided for in Article XV” and to “supplies and equipment which are to be used exclusively by the United States Armed Forces or are ultimately to be incorporated into articles or facilities used by such forces”.

Question: Japanese say they are agreeable to substance of this paragraph but would like to know why words “authorized procurement agencies of the United States Armed Forces” are necessary and how best their retention could be defended in Diet. They ask if “authorized procurement agencies of the US Armed Forces” are not a part of US Armed Forces? Similarly, they ask clarification of phrase “or are ultimately to be incorporated into articles or facilities used by such forces”. Needless to say, Japanese would prefer phrases in question to be eliminated. Believe they would be satisfied however, with adequate explanations which they could use in defending retention.

17. Article XII paragraph 1.

Present wording (as amended in accordance paragraph 1–C Deptel 1029):⁵ “The United States may contract for any supplies or construction work to be furnished or undertaken in Japan for purposes of, or authorized by, this agreement, without restrictions as to choice of supplies or person who does the construction work”.

Proposal: To add sentence “such supplies or construction work may, upon agreement between the two governments, be procured through the Government of Japan”.

Reason for proposed change: Japanese are agreeable to substance and wording of above sentence, but wish it to be stated that, provided we agree, there may also be procurement through the Japanese authorities. They are not proposing to change existing system of procurement, but wish hypothetical possibility of future additional or alternative procurement through GOJ to be mentioned, particularly since members of the Diet are aware there are such possibilities in our agreements with some NATO countries. Proposed addition, they believe, involves no significant substantive change since any procurement through GOJ would clearly have to be by agreement.

18. Article XII paragraph 5 and Article XV paragraph 4.

Proposal: To include the local inhabitant–so that paragraphs in question will begin “The obligations or the withholding and payment of income tax, local inhabitant tax and social security contributions, et cetera”.

Reason for proposed change: It is customary in Japan to withhold not only income tax and social security contributions but also the “local inhabitant” tax. Provision for withholding also of that tax would improve public acceptance of administrative agreement.

19. Article XII paragraph 6 (new).

Proposed new paragraph: “The Governments of Japan and the United States will cooperate with each other with a view to facilitating amicable settlement of claims of individual workers arising out of work with the United States Armed Forces or with the organizations provided for in Article XV in connection with the application of the preceding paragraph and paragraph 4 of Article XV.

Remaining sub-paragraphs would be renumbered accordingly.

Reason for proposal: GOJ does not wish to change presently existing mechanism for adjustment of differences with respect to labor problems (in form of subcommittees of joint committee), since that mechanism is working satisfactorily. Proposed new paragraph is to call attention to existence of these subcommittees which will greatly help in obtaining Diet approval. Fujiyama stated to me explicitly that this proposed new paragraph would not be considered as entailing any change in present organizational arrangements.

20. Article XIII paragraph 3.

Question: Japanese have no objection to substance of this paragraph, but say that when questioned in Diet about meaning of “tangible or intangible” they will be unable to answer. They do not know what to answer if asked meaning of “intangible movable property the presence of which in Japan is due solely to the temporary presence of members of the United States Armed Forces, the civilian component, or their dependents”. GOJ would like “tangible or intangible” to be deleted since they cannot explain it. However, if we can give them an explanation, preferably examples, which would enable reasonable defense of the provision to be made before Diet and public opinion, there should be no problem.

If “tangible and intangible” is deleted in first part of Article XII paragraph 3, Japanese would also prefer to delete “or to any intangible property registered in Japan” later in same paragraph, and also to delete identical language in Article XIV paragraph 5.

21. Article XVII paragraph 11.

Present wording: “In the event of hostilities to which the provisions of Article XXIV of this agreement apply, either the United States or Japan shall have the right, et cetera”.

Suggested change: “In the event of hostilities to which the provisions of Article V of the treaty of mutual cooperation and security apply, either the United States or Japan shall have the right, et cetera”.

Reason for change: Article XXIV of administrative agreement would be deleted and its substance transferred to new mutual security treaty, hence reference should be to latter document. No change in substance.

22. Article XVIII paragraph 3 (d).

Proposal: To reword the sub-paragraph so that it will read “The cost incurred in satisfying claims pursuant to the preceding sub-paragraphs shall be shared in the proportion of 75 percent chargeable to the United States and 25 percent chargeable to Japan.”

Reason for proposed change: This change would only reflect existing status. The terms referred to above were agreed by exchange of letters dated March 23, 1953⁶ which established current practice of sharing costs in ratio of 75 percent by US and 25 percent by Japan. Writing this arrangement into the agreement would, in Japanese view, entail no actual change of substance but would improve appearance of new agreement.

23. Article XVIII paragraph 6(a).

Proposal: To reword this sub-paragraph so that it will read “members of the US Armed Forces and of the civilian component shall not be subject to suit in Japan with respect to claims specified in paragraph 3, but shall be subject to the civil jurisdiction of Japanese courts with respect to all other types of cases.”

Reason for proposed change: Japanese do not propose to change substance of this sub-paragraph. They note, however, that the term “civilian employees” does not appear anywhere else in the Administrative Agreement and that it is not defined. They state Japanese employees could not have been meant since they are specifically excluded. They fear that if called upon to explain present wording in Diet, it may be difficult to do so. Therefore, GOJ proposes to simplify wording and to use phrase “civilian component” defined in Article I.

24. Article XXII (as amended by paragraph 1–C Deptel 1029).

Present wording: “The United States shall have the right to enroll and train all eligible United States citizens, residing in Japan, in the reserve organizations of the Armed Forces of the United States, except that the prior consent of the Japanese Government shall be obtained in the case of persons employed by the Japanese Government.”

Proposal: To reword article so it would read “The United States may enroll and train eligible United States citizens residing in Japan, who apply for such enrollment in the reserve organizations of the Armed Forces of the United States.”

Reason for proposal: GOJ believes language may be permissive in form because US never requested right to conscript United States citizens in Japan, since present Article XXII is clearly limited to reserve organizations. GOJ is anxious to be in better position to meet opposition charges that US would be able to enroll private US citizens residing in Japan, even against their will. They are particularly sensitive on this point because as they frankly admit they had such rights in their prewar occupation of Mainland China, and anything smacking of this practice would appear to Diet as serious derogation of Japanese sovereignty. Japanese believe their new language would not result in substantive change.

Since new language emphasizes voluntary practice, they propose drop final clause. If changes involve major difficulty for US, they would appreciate being informed of nature such difficulty in terms they may use in Diet.

25. Article XXIV.

Reason for deletion: Substance of this article included in Article IV of new Mutual Security Treaty. (Deletion authorized by Deptel 1029.)

26. Article XXV paragraph 2(b).

Present wording: (This is the well-known sub-paragraph dealing with Japanese yen payments for support of US forces.)

Reason for deletion: Japanese have strongly insisted on deletion of sub-paragraph (b) as not in keeping with new era between Japan and the US. Both from Japanese and from US point of view, yen contribution is heavy political liability. Its original purpose to encourage Japanese defense build-up while compensating US for its share in defending Japan, can no longer be accomplished in this manner, the basic concept of new Mutual Security Treaty in any event contemplates not money contribution but granting of facilities and areas as Japanese contribution in return for US commitment to regard attack against Japan as common danger. As expressed in country team–USFJ message contained Embtel 364 of August 18, 1958,⁷ Japanese yen contribution is “political albatross.” It is now clear that continuation of yen contribution is politically impossible for GOJ which is publicly and irrevocably committed to deletion of this sub-paragraph (cf. Embtels 1806⁸ and 1808⁹).

27. Articles XXVI (old XXVII) and XXVIII (new).

Present wording of Article XXVI (as amended by Deptel 1029):

• “1. The agreement will enter into force when the Treaty of Mutual Cooperation and Security between Japan and the United States, signed on (blank), enters into force.
• “2.

  Each party to this agreement undertakes to seek from its legislature necessary budgetary and legislative action with respect to provisions of this agreement which require such action for their execution.”

  Proposed wording: “1. This agreement shall be approved by Japan and the United States of America in accordance with their legal procedures, and notes indicating such approval shall be exchanged.

  “After the procedure set forth in the preceding paragraph has been followed, this agreement will enter into force on the date of the coming into force of the treaty of mutual cooperation and security, at which time the administrative agreement under Article III of the security treaty between Japan and the United States signed on February 28, 1952, as amended, shall expire.

• “2.

  The government of each party undertakes to seek from its legislature necessary budgetary and legislative action with respect to provisions of this agreement which require such action for their execution.”

  Reasons for proposed change: Since GOJ must submit new agreement Diet for approval, Japanese insist they cannot stipulate that new agreement will enter into effect automatically when mutual security treaty enters into effect. At same time they understand that we will handle new agreement as executive agreement and that we will not present new treaty for ratification unless and until Japanese Diet has approved both treaty and new agreement. They have proposed this seemingly cumbersome language to emphasize that Diet action on new agreement must be completed before new treaty can enter into effect. Language beginning “at which time” is in Japanese view not essential, but represents attempt to carry over essence of Article XXVIII of our draft (which they would propose to delete), while making it clear that expiration of present administrative agreement will not occur until new treaty and agreement come into force.

  Change at beginning of paragraph 2 is designed to take into account fact that with Japanese Diet ratification “party” is not synonymous with “government”. GOJ feels it must say “government of each party” to avoid implication, which would be offensive to Diet, that legislature is subordinate to executive.

28. Throughout the agreement.

Proposal: To substitute “government” or “governments” for “party” or “parties”, in Article II paragraph 2 and in Articles XXVII and XXIX. Also, to write “Government of Japan” and/or “Government of United States” in place of “Japanese” and “United States Government” in Articles IV paragraph 3, IX/1, IX/5, XI/9(A), XI/9(D), XII/1, XIII, XIV/6, XVIII/11, XIX/1, XX/1(A), XX/1(B), XXIII, XXIV and XXV. In Japanese version, word “Japan” would precede “United States” while in US (English) version “United States” would precede “Japan”.

Reason for proposal: In view of fact agreement will be ratified by Diet, the term “the parties” could be construed as meaning not only GOJ but also legislature. Also, throughout agreement GOJ would prefer use of term “Government of Japan” to “Japanese Government”. To conform to this change, “United States Government” would be replaced by “Government of United States”. GOJ would also prefer “Japan” to precede “United States” in Japanese text.

29. Throughout the agreement.

Suggested changes: (A) In Article II paragraph 4A, add “between the two governments” after “provided that it is agreed”. (B) In Article III paragraph 2, replace “by mutual agreement” in second sentence with “by agreement between the two governments”. (C) In Article VI paragraph 1 add “between the two governments” after “procedure will be established by mutual arrangement”. (D) In Article XI paragraph 6, also Article XII old paragraph 8 and Article XV paragraph 3, replace “in accordance with conditions agreed upon between the two governments”. (E) In Article XII paragraph 5 and Article XV paragraph 4, “between the two governments” after “except as may otherwise be agreed”.

Reason for proposal: In number of places, present administrative agreement calls for “mutual agreement” on implementing features. Inasmuch as new agreement itself will go to Diet for ratification, Japanese are anxious to make it clear that such “mutual agreements” will be between the two governments as executive actions and not by any stretch of imagination subject to further Diet approval. Hence GOJ proposes tightening-up by stating “by agreement between the two governments” in place of “by mutual agreement”. Since the new administrative agreement is in any case treated by us as executive agreement, Japanese have assumed that suggested change involves no difficulty for us. From our point of view we think it most important to emphasize that subsequent or implementing agreements will not require Diet action.

30. Final clause.

Proposal: To have first sentence read “In witness whereof the undersigned plenipotentiaries have signed this agreement”.

Reason for proposed change: Since new agreement is to be approved by Diet (even though we regard it and will treat it in every respect as executive agreement), Japanese desire it to be signed by “plenipotentiaries”. They would also understand that in English-language version, the word “English” would come first while in Japanese-language version the word “Japanese” would come first.

MacArthur

0. Source: Department of State, Central Files, 794.5/4–2959. Confidential; Limit Distribution. Repeated to CINCPAC and COMUS/Japan.
1. See footnote 8, Document 43. Telegram 1806 is printed as Document 44.
2. All ellipses are in the source text.
3. Dated December 18, 1958. (Department of State, Central Files, 794.5/12–1858)
4. Document 46.
5. Telegram 1029 to Tokyo included some amendments to a COMUS draft of the Administrative Agreement. (Department of State, Central Files, 794.5/12–2458) The COMUS draft is in telegram 1248 from Tokyo, December 17, 1958. (Ibid., 794.5/12–1758)
6. Agreement relating to the sharing of claims costs under Article XVIII of the Administrative Agreement, effected by an exchange of notes at Tokyo March 23, 1953, and entered into force the same day. For text, see 4 UST 355.
7. Not printed. (Department of State, Central Files, 794.5–MSP/8–1858)
8. Document 44.
9. Telegram 1808 from Tokyo, March 9, deals with the purchasing of PA systems. (Department of State, Central Files, 894.191–TO/3–959)