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

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

Tokyo, June 4, 1959, 4 p.m.

2577. CINCPAC exclusive for POLAD and Adm Felt. COMUS/Japan exclusive for Gen Burns. Embtel 2498.¹ Fujiyama asked me to meet with him yesterday afternoon for further discussion of treaty. He immediately raised constitutional problem for Japanese in new mutual security treaty and asked me whether we could reconsider acceptance of Japanese Article VIII (Secnog 2). I replied that this article was totally unacceptable and explained again reasons why. He then asked me to enquire whether Washington would accept inclusion of phrase “within their constitution limitations” in Article III. (See para 7 of reftel.)

I said I would ask Dept for specific answer to this query but as I had pointed out to him on May 23, I believe this proposal would be unacceptable since it might be read to imply that executive branch would interpret what were limitations of our constitution.

Fujiyama said Kishi and he still feel they need separate article making it clear that GOJ has not obligated itself to do anything contrary to Japanese Constitution. However, if we could accept inclusion of above phrase in Article III it might solve their problem. He said this issue is major remaining problem and of such importance to Kishi and him that he requested reconsideration of our position after study of a paper he then gave me prepared by FonOff legal experts in cooperation with legislative bureau of PriMin’s office. (Paper is obviously a “lawyer’s paper.”) Summary of paper follows which includes new proposal for Article VIII:

Begin summary:

1. (Gives provisions of Article 9 of constitution.)

2. In interpreting these provisions, GOJ has maintained position (a) that Article 9 does not go so far as denying right of self-defense; (b) that it does not go so far as prohibiting maintenance of minimum capacity required for self-defense; (c) that nothing in constitution precludes Japan from concluding security treaty with foreign country or having foreign troops stationed in Japan.

3. These three points are premises of the new treaty, or more specifically of provisions of Articles III, V, and VI. They must simply be taken for granted. Question is not whether they are right or wrong, but how far one can go under them. Article VIII as proposed by GOJ was meant to meet this point. It does not say that all provisions of treaty should be considered constitutional. It simply says that treaty provisions (not constitutional provisions) should not be interpreted in such manner as may involve violation of constitutional provisions. It proposes to adjust scope of treaty provisions to framework of constitution.

4. If it is impossible for US Govt to accept Article VIII for constitutional reasons, it may be reworded to read for instance: “nothing in this treaty shall be construed as constituting any undertaking by Japan exceeding its constitutional limitations.” This is entirely one-sided proposition. This one-sidedness however does not make proposition more fit to be incorporated in unilateral declaration by Japan. On contrary, it makes it all more important that US acceptance thereof is clearly recorded.

5. There may be no such precedent in treaties concluded by US so far. But lack of precedent or one-sidedness might very well be justified if uniqueness of Article 9 of Japanese Constitution is taken into consideration.

6. Heated debate arose over constitutionality of provisions of MDA Agreement in course its deliberation in Diet, despite provisions of its Article IX, para 2. Use of term “shall be implemented” gives impression that provisions of treaty themselves or obligations embodied therein extend beyond scope of constitutional provisions. Furthermore, as has been pointed out in (1) and (2) above, there is nothing in constitution itself which provides ground for maintaining defense capacity. Expression “in accordance with the constitutional provisions” does not seem adequately to reflect this constitutional inhibition. Therefore we would like to avoid using same formula in new treaty, if at all possible.

7. Problem of constitutionality has become highly controversial issue particularly since Sunagawa case.² In order to gain popular support for new treaty therefore we feel it highly important to leave no room for any dispute or doubt on this point. That is reason why GOJ has been emphasizing point that, contrary to allegations of anti-revisionists, new treaty would remain within framework of constitution. End summary.

I said we understand and sympathize with Japan’s problem but we, too, have problem because executive branch cannot place itself in position of concluding treaty which might be read to imply that executive branch could interpret our constitution. Furthermore, I did not think Japanese formulation of Article VIII contained in above paper would be acceptable since in effect Japanese were trying to place US in position where it interpreted Japanese constitution. This, I felt certain, we could never accept, although Japanese could always make unilateral statement to this effect, as I had mentioned in our last meeting.

Fujiyama then asked whether we could accept provision which would clearly put it up to judiciary to interpret constitutionality of treaty. I said this would only compound our difficulty as in effect it could be interpreted to mean that our Supreme Court must pass on constitutionality of draft treaties before such treaties were signed or sent to Senate for ratification. Fujiyama said he could see no way out of dilemma for moment except perhaps by including phrase “within their constitutional limitations” in Article III. However, he would study matter further and hoped we would also study possibility of including above phrase in Article III or would propose some other solution.

Yamada then proposed that Article VII should read: “Nothing in present treaty shall impose on either party any obligation not in conformity with its constitution.” I said in my judgement this was open to same basic objection as original Article VIII.

At conclusion of meeting with Fujiyama I met privately and alone with Yamada at his request. He said he hoped earnestly we could accept inclusion of “within their constitutional limitations” in Article III. I said I would enquire but doubted seriously our ability to do so.

After some further discussion Yamada asked me if we could accept phrase “subject to their constitutional provisions” in Article III. I told Yamada that if this would solve problem, I felt there was very good prospect we could accept this phrase and I would strongly recommend it to Washington. Yamada said he had not discussed this with Fujiyama but he would immediately start to work on Japanese legal experts in FonOff and PriMin’s office to accept this solution.

Request urgently Dept’s views on:

A. Inclusion of phrase “within their constitutional limitations” in Article III;

B. Above solution proposed by Yamada which I earnestly hope we can accept if Yamada can sell it to Fujiyama and Kishi, since it parallels, of course, existing language we have in Article V, “in accordance with its constitutional provisions and processes”.

MacArthur

0. Source: Department of State, Central Files, 794.5/6–459. Confidential; Priority; Limit Distribution. Transmitted in two sections and repeated to CINCPAC and COMUS/Japan.
1. Document 65.
2. The Sunagawa case involved seven Japanese who in 1957 penetrated several feet into the U.S. Tachikawa Air Base. A Japanese court of original jurisdiction held that the defendants were not guilty on grounds that Special Criminal Law, under which they had been indicted, was unconstitutional. The law had been enacted in accordance with the U.S.-Japan Security Treaty and the Administrative Agreement. The Japanese Supreme Court, however, reversed this decision of the lower court in December 1959 by clarifying Japan’s right of self-defense and by confirming the constitutionality of the stationing of U.S. military forces in Japan. Documents related to this subject are in Department of State, Central File 794.56311.