Foreign Relations of the United States, 1947, The Far East, Volume VI

894.628/5–2247

The Assistant Legal Adviser for Political Affairs (Snow) to the Legal Adviser (Fahy)

secret

[Washington,] May 22, 1947.

Subject: Authority of SCAP to Direct an Antarctic Whaling Expedition

Question: Has SCAP the authority, vis-à-vis the Far Eastern Commission, to conduct a “SCAP-administered, Japanese-manned” whaling expedition to the Antarctic?

1. SCAP’s authority to take any action in Japan may spring from any one of three sources: (a) His position as Supreme Commander for the Allied Powers, and sole executive authority for the Allied Powers in Japan; (b) An interim directive from the United States on an urgent matter not covered by a policy already formulated by the Far Eastern Commission; (c) His power to implement a directive prepared by the U.S. Government to express a policy decision of the Far Eastern Commission. The question at issue is, under which of the three heads should action of the nature mentioned fall?

2. It seems to be best argued that SCAP’s authority to conduct such a whaling expedition is inherent in his position as Supreme Commander. Paragraph 5 of the Terms of Reference for the Allied Council (Agreement of Foreign Ministers at Moscow on Establishing Far Eastern Commission and Allied Council for Japan, December 27, 1945)⁷⁷ provides that the Supreme Commander will issue all orders for the occupation and control of Japan, that “in all cases action will be carried out under and through the Supreme Commander, who is the sole executive authority for the Allied Powers in Japan”; that although he is to consult and advise with the Council in advance of the issuance of orders, on matters of substance and the exigencies of the situation permitting, his decisions on these matters shall be controlling. This expression of SCAP’s complete authority to issue orders for the occupation and control of Japan is the culmination of a series of documents.

a. In the Potsdam Proclamation of July 26, 1945, it was proclaimed that points in Japan designated by the Allies were to be occupied, and that the occupying forces of the Allies would be withdrawn when the objectives had been accomplished. This document establishes that it was to be an Allied occupation, not an occupation by the United States.

b. In Secretary Byrnes’ reply, for the President, to the Japanese offer of surrender, August 11, 1945, it was stated that from the moment of surrender the authority of the Emperor and the Japanese Government to rule the State should be subject to the Supreme Commander of the Allied Powers, who would take such steps as he deems proper to effectuate the surrender terms, and that the armed forces of the Allied Powers would remain in Japan until the purposes of the Potsdam Declaration were achieved.

c. The Japanese Government was notified on August 14, 1945 that General of the Army Douglas MacArthur has been designated as Supreme Commander of the Allied Powers.

d. The final paragraph of the Instrument of Surrender of September 2, 1945, which was signed not only by Japan, but also by nine Allied Powers, repeats the statement made by Secretary Byrnes (par b above) as to the subjection of the Japanese Government to SCAP, and that the Supreme Commander would take such steps as he deems proper to effectuate the terms of surrender.

3. The function of the Far Eastern Commission, as contrasted with SCAP’s power, as sole executive authority for the Allied Powers in Japan, to issue all orders for the occupation and control of Japan, is to formulate the policies, principles and standards in conformity with which the fulfillment by Japan of its obligations under the Terms of Surrender may be accomplished. (Agreement of Foreign Ministers at Moscow, December 27, 1945, Par. A, II A 1). In accordance with these policy decisions of the Commission, the U. S. Government prepares directives to SCAP who is charged with their implementation (Par. A III 1). The United States Government, however, as expressly empowered, “pending action by the Commission whenever urgent matters arise not covered by policies already formulated by the Commission,” to issue interim directives to SCAP (Par. A III 3), which directives, on the request of any member, may be subsequently reviewed by the Commission (Par. A II A 2), and if the Commission decides that any such directive should be modified, its decision must be regarded as a policy decision (Par. A III 2). Accordingly, even if the question whether or not there shall be a second whaling expedition be considered a question of policy rather than of administration, nevertheless if the matter be considered urgent, and since the Far Eastern Commission has as yet formulated no policy, the United States may proceed unilaterally by way of interim directive to SCAP, to direct such an expedition, and then, if necessary to veto any modification of the directive on review.

4. Procedure by interim U. S. directive, as suggested in the previous paragraph, seems unnecessarily labored, however. SCAP’s fundamental power to issue all orders for the occupation and control of Japan, includes the power to make policy decisions, assuming, of course, that the Commission has formulated no policy to the contrary. This was apparently forseen by the Foreign Ministers at Moscow, who specifically provided for the review by the Commission, of “any action taken by the Supreme Commander involving policy decisions within the jurisdiction of the Commission” (Par. A II, A 2), and that if the Commission decides that any such action so reviewed should be modified, its decision should be regarded as a policy decision (Par. A III 2). Accordingly, even if the whaling expedition involves a policy decision within the jurisdiction of the Commission, nevertheless, since the Commission has formulated no policy, SCAP may act in the premises, and without any directive from the United States.

5. It is clear that there has been no policy decision by the Far Eastern Commission on the matter of Japanese whaling. A copy of FEC–035/1, December 13, 1946, is appended, which is a statement of policy proposed by the Australian representative, but never adopted. It will be noted that the paper provides [Par. 3(c)]⁷⁸ that no Japanese pelagic whaling should be permitted anywhere, and that the FEC will not authorize eventual Japanese re-entry into pelagic whaling without agreement being reached in the international authority for whaling. Even this document, however, does not purport to forbid the Supreme Commander from conducting a whaling expedition.

6. It is concluded that, for the purpose of providing food and oil needed for the successful occupation of Japan, SCAP has the power, as sole executive authority for the Allied Powers in Japan, to order and administer a second Antarctic whaling expedition. Even if there are questions of policy in connection with such an expedition, which would be within the jurisdiction of the Commission, nevertheless, pending action by the Commission, such questions can be resolved by SCAP, or if preferred as a matter of U.S. policy, by an interim directive of the United States Government.

77. See Communiqué on the Moscow Conference of the Three Foreign Ministers, Foreign Relations, 1945, vol. ii, p. 815.
78. Brackets appear in the original.