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

56. Telegram From the Department of State to the Embassy in Japan⁰

Washington, May 9, 1959, 12:27 p.m.

1673. For MacArthur from Robertson. Re Secnogs 2 and 3 Draft Treaty.¹

1. Preamble–

(a) Deletion title word “preamble” approved.

(b) Change economic paragraph approved.

(c) Re para on security of Japan, instead of proposed GOJ language insert “considering that they have a common interest in the security of Japan”. Comment:GOJ language too one-sided from US viewpoint. Our proposed language appears meet basic objective of GOJ position while pointing up security or Japan in mutual interest of both countries. We object to word “ensuring” as implying guarantee of Japan’s security. Believe Congress would object to such strong language.

(d) Re para on international peace and security in Far East insert addition of “and in the Pacific area” following “in the Far East”. Comment: Reference to Pacific area in this context and subsequently in Articles IV and VI does not create obligation for Japan defend US territory but retains reference to GOJ concern in event US Pacific territories threatened which most desirable from our viewpoint. Believe this reference particularly important in light statehood now accorded Alaska and Hawaii. Such references would strengthen our ability convince Congress of mutuality draft treaty.

2. Article I. Japanese proposal of additional paragraph re UN approved.

3. Article II. Japanese proposal approved.

4. Article III. No objections to most aspects Japanese draft. However, make every effort retain, if possible, reference to “individual and collective capacities” which follows Vandenberg resolution. Comment:Recognize reference to “collective” capacity creates problems for GOJ. However, inclusion “collective” in Article III could reasonably be considered as consistent with reference to “collective self-defense” in preamble. In addition, combination of Japan self-defense forces and United States forces, Japan, employed in defense of Japan, constitutes de facto “collective” capacity, which thus justified by this treaty language. However, if GOJ continues object to inclusion, of “individual and collective capacity” we willing accept “their capacities”.

5. Article IV. Following language based on GOJ draft should be used: “The parties will consult together from time to time regarding the implementation of this Treaty, and, at the request of either party, whenever the security of Japan or international peace and security in the Far East and the Pacific area is threatened.” Comment:Phrase “at the request of either party” has been moved to the second clause to indicate that there will be regular consultation such as presently takes place on overall security matters. In this connection, we envisage that current security committee or some other group would meet periodically for discussion security problems on diplomatic level. “In the Pacific area” added for reasons stated above paragraph 1 (c).

6. Article V. (a) Replace word “areas” with “territory.” Comment:“Territory” is commonly used in Pacific treaties in connection with treaty area. Would prefer to use this language in Japan treaty unless there are compelling Japanese objections to it.

(b) Insertion of reference to Article 51 UN Charter approved.

7. Article VI. (a) Following language based on Japanese draft should be used: “In consideration of the common interest that the two parties have in the security of Japan and in consideration of the common concern that the two parties have in the maintenance of international peace and security in the Far East and in the Pacific area, . . . etc.”²Comment:This language consistent with changes proposed in preamble.

(b) In final phrase para 1 change to read “facilities and areas in and about Japan.” Comment:Prefer add “and about” to assure that arrangements for maneuver areas and other facilities outside territorial waters Japan continue in effect. If GOJ unwilling add this language to treaty, will accept appropriate assurances from GOJ that status of these maneuver areas not affected by any language in Article VI and in Article II of new Administrative Agreement.

(c) Revise para 2 as follows: “The use of these facilities and areas as well as the status of US armed forces in Japan shall be governed by a separate agreement, replacing the Administrative Agreement between the US and Japan signed on February 28, 1952 and by such other arrangements as the Governments of the US and Japan may agree upon.” Comment:Change recommended by CINCPAC to relate new treaty to new agreement.

8. Article VIII. We have serious objections to inclusion in treaty of special article on constitutionality qualifying whole treaty. First, there is no similar provision in any of our other mutual security arrangements and Congress is bound to question inclusion this article in Japanese arrangements very closely. Second, we fear other countries may raise problems with us re this Article and seek similar relief from obligations incurred in treaty arrangements on basis conflict with constitution. Third, there is problem whether under US constitutional system Executive Branch can so explicitly assert its authority to interpret constitution. You might explain to Japanese that as this provision presently drafted it could be construed as effort by Executive Branch to assert powers of US judiciary as final arbiter interpreting our constitution. Finally, present language Article VIII conceivably could permit either Government to seek relief from obligations under treaty, for example Article VI provisions, at some future time on basis obligation in conflict with their constitution as then interpreted. Under accepted international law, country does not escape from international obligations entered into in treaties even when such treaties may be declared unconstitutional for purposes of domestic law.

We recognize, however, constitution issue very delicate and crucial point in Japan. Therefore, propose that as addition at end of Article V: “and constitutional provisions”.

9. Article IX (VIII in US draft). In international usage of “alternate” in both original English and Japanese signed texts which US retains, US would be mentioned first and in both original English and Japanese signed texts which Japan retains, Japan would be mentioned first. Assume this acceptable and perhaps originally intended by Japanese officials.

10. Article X (IX in US draft). Japanese proposal acceptable.

11. Article XI (X in US draft). Japanese draft acceptable and second paragraph, in fact, preferable in clarifying 11 year duration.

12. New concluding sentence acceptable.

Defense concurs.

Dillon

0. Source: Department of State, Central Files, 794.5/5–959. Confidential; Verbatim Text; Niact; Limit Distribution. Drafted by Sneider on May 8; cleared with L, S/P, and Defense (ISA); and approved by David M. Bane, Director of the Office of Northeast Asian Affairs. Repeated to CINCPAC and COMUS/Japan.
1. Documents 47 and 48.
2. Ellipsis in the source text.