Foreign Relations of the United States, 1946, The Far East, Volume VIII

740.00119 FEAC/12–946

Memorandum by Brigadier General Conrad E. Snow. Assistant to the Legal Adviser (Fahy)⁵⁸

[Washington,] December 10, 1946.

Jurisdiction of the Far Eastern Commission With Respect to the Japanese Peace Treaty

1. The Terms of Reference of the Far Eastern Commission do not vest in the Commission any jurisdiction with respect to the formulation of policies, principles and standards to which a Peace Treaty with Japan must conform.

2. The Far Eastern Commission was established by the Foreign Ministers of the Union of Soviet Socialist Republics, the United States of America and the United Kingdom, with the concurrence of China, to formulate the policies, principles and standards in conformity with which Japan might accomplish the fulfillment of its obligations under the Terms of Surrender. The Terms of Reference are not a limitation on the right of any or all of the four constituting Powers, nor of any other Power which has been at war with Japan, to conclude a bilateral or multilateral Treaty of Peace with Japan, upon such terms as can be negotiated. Nor do they bear upon any obligations which Japan may assume by virtue of any such treaty or treaties.

3. The functions of the Far Eastern Commission under the Terms of Reference are quite independent of any treaty or treaties of peace. The Commission may cease to function, under Par. VII, either before, contemporaneously with, or after, the conclusion of such treaties, in accordance with the decision of the four constituting Powers and at least a majority of all the representatives on the Commission. Naturally, however, if a multilateral Treaty of Peace is concluded, merging all the obligations of Japan in a new instrument which takes the place of the Terms of Surrender, the Powers will at the same time take care either to terminate the Far Eastern Commission or to issue to it new Terms of Reference, prescribing its function with reference to the provisions of the new instrument.

4. This is not to say that any Power or Powers, in negotiating a treaty or treaties of peace with Japan, should disregard the policies, principles and standards formulated by the Far Eastern Commission for the guidance of Japan in the fulfillment of its obligations under the Terms of Surrender. The terms of such treaty or treaties must necessarily depend in part on the extent to which Japan has fulfilled its obligations under the Terms of Surrender. Good faith on the part of the contracting Powers should require them to measure Japan’s accomplishment in the light of the ground rules laid down by the Commission. They furnish at one and the same time the implementation of its obligations and the measure of its accomplishment. They have, however, no binding effect on the diplomatic representatives of the Power or Powers which are negotiating a treaty or treaties of peace.

5. The fundamental business of the Far Eastern Commission is the fulfillment by Japan of its obligations under the Terms of Surrender. It formulates the policies, principles and standards in conformity with which this fulfillment may be accomplished. Its policy decisions are transmuted by the United States Government into directives to the Supreme Commander of the Allied Powers. The whole system of control is obviously designed as an interim measure to cover a period of military occupation. There is no provision in the Terms of Reference for any participation by the Commission in any change either in Japan’s charter of obligations or in the system of control, and there is no body to which the Commission could communicate policy decisions for the guidance of the treaty-making authorities of the several Powers, who, it is assumed, will one day meet to discuss the drafting of a Treaty of Peace. The Commission is designed to operate under the existing system, and with prospective changes in that system, incident to treaties of peace, or any other diplomatic agreements among the Powers, it has no business.

6. The Legal Adviser’s Office knows of no other international commitments or other controlling documents giving to the Far Eastern Commission any jurisdiction to deal with any aspects of a Japanese Peace Treaty.

58. Prepared in response to a request of December 9 by General Hilldring.