Foreign Relations of the United States, 1950, East Asia and the Pacific, Volume VI

Lot 56D424

Memorandum by the Director of the Office of Northeast Asian Affairs (Allison)¹ to the Secretary of State

top secret

[Washington,] August 24, 1950.

Herewith the revised memorandum of comment on the Joint Chiefs’ Memorandum concerning the proposed Japanese Peace Treaty.

I have had an original and one copy made which you could leave with the Secretary of Defense. Attached to these copies is a copy of the August 18 draft² of the peace treaty as a whole which can be left for the information of the Joint Chiefs. It should be made clear that this draft is not final and has not received final approval within the Department. However, it incorporates the comments of all of the offices concerned within the State Department and in general expresses agreed ideas. Article 5 of the draft does not have general approval and will probably be changed somewhat. This is the Article which deals with the disposition of Formosa and the Kuriles.³ There also may be added an Article setting up mixed claims commissions or an arbitral tribunal for the settlement of disputes arising under the treaty. This problem is now under discussion between my Office and that of the Legal Adviser.

You will note that I have left unchanged in paragraph 3g on page 3 of the memorandum the statement that we agree with the Joint Chiefs that “Japan in the post-treaty period should be fully responsible for its own internal affairs.” I believe it is important to have the military recognize this principle and I do not see how we can spell out in the Treaty the exact definition of the phrase or what would happen in case of internal riots of a serious nature. Normally we would hope such disturbances could be handled by the Japanese police, but obviously if they got out of hand it would be necessary for our own forces to take part. I believe we must leave this problem open for settlement on an ad hoc basis should it arise. Given good will on the part of the Japanese Government, which we should be able to count on after a peace treaty, and given good sense on the part of American diplomats and military in Japan, there should be no real difficulty in this connection. In my opinion it would be better not to raise the issue with Secretary Johnson at this time.

You will note that there are two phrases used in the Joint Chiefs’ Memorandum upon which we request specific clarification. The first of these appears in paragraph 2 of my memorandum and is the phrase, “the war potential of Japan should be available to the United States”. It would seem to me that we obviously cannot include in a general multilateral peace treaty such a provision. However, with the United States forces in Japan and accepting the military judgment, as most recently stated in a General Staff Intelligence study on “Soviet and Communist Capabilities in the Par East” dated August 11, 1950,⁴ that in the event of a global war Japan would be attacked by the USSR, we can be certain that as a practical matter Japan’s war potential would be made available to the United States. There certainly is nothing in the Treaty as drafted by this Department to prevent it.

In paragraph 3g on page 3 of my memorandum, we also request clarification concerning a phrase about individual members of the United States forces remaining in Japan enjoying the same rights and bearing the same responsibilities as to law and order in Japan as they do in the United States. I do not suggest a lengthy discussion of this point at this time, but I believe it would be made clear that the State Department cannot agree to complete extraterritoriality for United States forces in a post-treaty Japan, should that be the Defense Department’s desire. In our negotiations with Defense over rights of our military in Austria and in Korea, it has become evident that the Defense Department wishes to obtain agreement that no member of the United States armed forces in those areas can be sued in a civil court for actions taken in his private capacity. Inasmuch as the Army itself will not assume civil jurisdiction over its members this would apparently leave them subject to no law whatsoever and would probably be a source of constant friction and embarrassment to this Government in its relations with the Japanese should such rights be insisted upon.

There is one minor point which you should have in mind. After writing my memorandum, I obtained a copy of your covering letter of August 1 to Secretary Johnson transmitting the Treaty draft⁵ and I note that it makes no reference to the time of going into effect of the Treaty as stated in paragraph 3a of my memorandum. However, in the covering memorandum to the NSC⁶ which transmitted the draft Security Chapter,⁷ this was made clear and inasmuch as it was sent in the name of the Secretary of State I believe the phraseology in 3a is substantially correct.

I am making copies of this revised memorandum available to Messrs. Matthews, Jessup, Dulles and Rusk.

John M. Allison

[Attachment]

Memorandum

August 23, 1950.

1. The Department of State has studied carefully the Memorandum for the Secretary of Defense from the Joint Chiefs of Staff, dated 22 August 1950 on a Proposed Japanese Peace Treaty and has the following comments.

2. The Department of State is in substantial agreement with the Memorandum of the Joint Chiefs in so far as paragraphs 2 through 8, inclusive, are concerned. There are certain phrases in these paragraphs which, in the opinion of the Department of State, require clarification but in most cases these are minor matters. The most important point upon which clarification would be helpful is that which appears in several places: “the war potential of Japan should be available to the United States.”

3. The Department of State disagrees with the statement in paragraph 9a of the Joint Chiefs’ Memorandum that “the draft articles do not meet the [minimum] security requirements of a treaty as set forth in paragraph 8 above.” In the opinion of the Department of State the draft security chapter of the Treaty forwarded to the Secretary of Defense by the Secretary of State does meet the requirements of the Joint Chiefs of Staff either explicitly or by implication. There is given below a detailed justification of this opinion in the following sub-paragraphs, lettered to correspond with the sub-paragraphs in paragraph 8 of the Memorandum of the Joint Chiefs of Staff:

a. The Department of State agrees that any peace treaty with Japan should not come into effect until after favorable resolution of the military situation in Korea. It was made clear in the Secretary of State’s covering letter that the time of going into effect of the Treaty should be controlled by the United States through the ratification procedure and by the use of diplomatic techniques during the negotiation. In any event it is not contemplated that the Treaty would go into effect for at least a year from the time negotiations begin. This obviously cannot be spelled out completely in the Treaty terms themselves but it is believed that the Joint Chiefs may be assured that the Treaty would not go into effect until such time as the United States Government determined it should, in its own interest. In so far as such matters can be fixed in the Treaty itself, Article 21 of the State Department’s draft No. 4 of August 18, 1950, of the full Treaty⁸ (not just the Security Chapter) does so. A copy of this draft not previously available to the Joint Chiefs is attached.

b. No treaty can completely guarantee that Japan is denied to the USSR but in so far as that is possible, it is believed the State Department’s draft does so. It provides that United States troops shall be garrisoned in Japan in the post-treaty period and that troops of no other power shall be given facilities in Japan except “by agreement with the United States” (Article 8)⁹ or “in accordance with the provisions of ….¹⁰ Article 43 of the Charter of the United Nations” (Article 9)¹¹ and in the latter case the United States has a veto and can block any action inimical to it. In the opinion of the Department of State an early treaty concluded on the initiative of the United States and its friendly Allies making it possible for Japan to associate itself on terms of equality with the free world will of itself do much to assure Japan’s orientation toward the West. Accompanied by the safeguards mentioned above the Treaty will do all humanly possible to deny Japan to the USSR.

c. The statements in b above seem to answer this point. Perhaps it should be made more clear that the forces in Japan will be under United States Command and such a provision could easily be added if it is deemed vital. However, there is considerable political advantage to not spelling this out so that the Treaty will look to the Japanese and to the world as little as possible like a grab for power on the part of the United States.

d. As stated above, Articles 8 and 9 of the State Department Draft assure that forces not acceptable to the United States shall have no facilities or rights in Japan.

eandf. It is not believed that the Treaty itself should provide for the eventual withdrawal of United States forces any more explicitly than now provided in Article 10.¹¹ That Article assures to the United States the decisive voice as to when the security arrangements shall be terminated. As stated under g below it is contemplated that a separate bilateral agreement between the United States and Japan will be concluded simultaneously with the conclusion of the Treaty in which all the various details regarding the implementation of the security arrangements will be worked out. Under this agreement it will be possible to spell out in detail if desirable the methods for any possible phasing out of United States garrison forces. It is not believed desirable at this time to have anything in the Treaty implying the recreation of Japanese military forces, as from the political point of view any such provision would undoubtedly ensure that many, if not all, of our friendly Allies would not go along with us in concluding a Treaty. On the other hand, the Treaty as drafted by the State Department contains no provisions inhibiting Japan’s inalienable right of self-defense. The Department of State agrees that provision must at an early date be made for Japan to begin to assume some of the burden of its own defense and agrees with the sense of paragraphs e and f of the Joint Chiefs’ Memorandum and will cooperate in working to achieve the ends therein described. However, it does not believe that it is either necessary or desirable to include provisions for such matters in a Treaty. As long as there is no prohibition in the Treaty, as there is not, of the eventual establishment of Japanese defense forces, the Department of State is confident the ends desired by the Joint Chiefs can and will be achieved and in a manner consistent with the overall political interests of the United States.

g. It is believed that Article 8 of the State Department draft gives sufficient basis for the United States to station its forces wherever in Japan and in whatever numbers it may desire. As pointed out in a note to the draft Security Chapter, it is the intention of the Department of State that a separate agreement be concluded between the United States and Japan, simultaneously with the conclusion of the Treaty, which will spell out the detailed provisions deemed necessary by the Joint Chiefs. The Treaty itself provides the broad framework and the foundation for such special agreement. It in no way limits what the United States may obtain. The Department of State would appreciate clarifications with respect to the phrase, “that the individuals thereof enjoy the same rights of free passage in Japan, and bear the same responsibilities as to law and order there, as they do in the United States”. The Department of State agrees with the Joint Chiefs that “Japan in the post-treaty period should be fully responsible for its own internal affairs.” With respect to paying “the costs of the garrison” it may be deemed advisable for Japan initially to continue to pay a portion of such costs, but this is a matter which would be resolved in the supplementary bilateral U.S.–Japan agreement and does not need to be spelled out in the Treaty itself.

handi. The provisions of the State Department’s August 18 draft of the Treaty as a whole (attached hereto) provide in Article 6¹² for the recognition by Japan of the U.S. strategic trusteeship of the Marianas, Caroline and Marshall Islands and control by the United States “of the Ryukyu Islands south of 29° north latitude, the Bonin Islands, including Rosario Island, the Volcano Islands, Parace Vela and Marcus Island”. The Department will be glad to discuss these provisions with the Joint Chiefs at their convenience.

4. With respect to paragraph 9b of the Joint Chiefs’ Memorandum, the Department of State agrees that it would be unsound, under present conditions, to rest United States security interests on the United Nations alone. The provisions of the draft Security Chapter prepared in the Department of State do not do this in any way. While casting the Security provisions in the words of the United Nations Charter and in a framework roughly equivalent to that which would prevail if the United Nations were working perfectly, in all cases the final determination of what shall be done and how and when it shall be done is reserved to the United States. Article 10 of the draft Treaty which discusses the transfer of security responsibilities to the United Nations specifically reserves the timing to “those Treaty Powers providing forces under the terms of Article 8. …” Article 8 ensures that those Treaty Powers will be the United States and such other Powers as may be agreed to by the United States.

5. For the above reasons the Department of State believes that the treaty draft presented to the Secretary of Defense meets in all essentials the criteria of the Joint Chiefs of Staff.

6. Inasmuch as the Department of State, agrees in substance entirely with the point of view expressed in the Memorandum of the Joint Chiefs and is in agreement with the ends to be achieved in a Treaty with Japan, it is believed there should be no further delay in proceeding with preliminary confidential discussions with the friendly members of the Far Eastern Commission with a view to determining whether they would generally favor the type of Treaty desired by the United States and how they would propose to proceed. It is believed to be within the responsibility of the Department of State to determine the appropriate language in which the Treaty should be drafted in order to obtain the agreed United States objectives.

1. In a memorandum to the Secretary of August 17, Mr. Dulles had indicated in part that he was about to go on 2 weeks’ vacation.

   Also in the course of this memorandum, Mr. Dulles had mentioned speaking casually with the President that day about several matters and had stated the latter had indicated “… he felt there ought to be a political decision to proceed lest we lose our influence in Japan.” (694.001/8–1750)

2. Not printed.
3. The language of this article is substantively identical to that in numbered paragraph 5 of the draft of August 7, p. 1268.
4. Not found in Department of State files.
5. No letter of the Secretary to Mr. Johnson of-August 1 transmitting the entire text of the treaty has been found in State Department files. Mr. Acheson did enclose with his letter of August 1 to Mr. Johnson, not printed, a draft of the security chapter (apparently the draft of July 25 as modified July 28, p. 1260).
6. Transmitted to NSC August 16, not printed, but see the summary of a portion thereof in paragraph (6. b.) of the unsigned memorandum of August 14, together with footnote 4 thereto, p. 1273.
7. Unchanged from the draft of security articles mentioned in footnote 5 above, but lacking the “note” thereto.
8. This article reads as follows in the only copy of this draft found in Department of State files: “The present Treaty shall come into force between Japan and the Allied and Associated Powers which have ratified the Treaty when ratifications by ______shall have been deposited with____________”(694.001/8–1850)
9. Articles 8, 9, and 10 of the August 18 draft treaty are equivalent to Articles II, III, and IV of the draft of security articles mentioned in footnote 5 above.
10. Omissions in this document occur in the source text.
11. Articles 8, 9, and 10 of the August 18 draft treaty are equivalent to Articles II, III, and IV of the draft of security articles mentioned in footnote 5 above.
11. Articles 8, 9, and 10 of the August 18 draft treaty are equivalent to Articles II, III, and IV of the draft of security articles mentioned in footnote 5 above.
12. This article reads as follows: “Japan accepts the action of the United Nations Security Council of April 2, 1947 extending the trusteeship system, with the United States as the administering authority, to the Pacific Islands formerly under mandate to Japan. The United States will also propose to the United Nations to place under its trusteeship system, with the United States as administering authority, all or part of the Ryukyu Islands south of 29 North Latitude, the Bonin Islands, including Rosario Island, the Volcano Islands, Parace Vela and Marcus Island, as the United States may determine, and pending affirmative action on such proposal Japan agrees that the United States shall have full powers of administration, legislation, and jurisdiction over the territory of these islands.”