Foreign Relations of the United States, 1951, Asia and the Pacific, Volume VI, Part 1

Tokyo Post Files: 320.1 Peace Treaty

Memorandum Prepared by the Dulles Mission¹

secret

[Tokyo,] February 3, 1951.

Provisional Memorandum

Subject to further consideration and subject to further consultation with the interested Parties, the United States contemplates a peace treaty along the following lines:

preamble

The Preamble would record the determination of the Allies and of Japan henceforth to order their relations on a basis of friendly cooperation as sovereign equals. Japan would indicate her intention to conform to the principles of the United Nations Charter; to realize the high principles embodied in the United Nations Universal Declaration of Human Rights;² and to develop the conditions of stability and well-being envisaged by Article 55 of the United Nations Charter, and already initiated by postwar Japanese legislation. Japan accordingly would intend to apply for membership in the United Nations and the Allies would welcome that intention.

peace

The state of war between the Allies and Japan would be pronounced at an end.

sovereignty

The Allies would recognize the full sovereignty of the Japanese people and their elected representatives over Japanese territory.

territory

Japan would renounce all rights and titles to Korea, Formosa and the Pescadores, and accept a United Nations trusteeship with the United States as administering authority over the Ryukyu Islands south of 29° north latitude, the Bonin Islands, including Rosario Island, the Volcano Islands, Parece Vela and Marcus Island. The United States would retain control of these islands pending approval by the United Nations of the trusteeship agreement or agreements. Japan would further renounce all rights, titles and claims deriving from the mandate system and from the activities of Japanese nationals in the Antarctic area.

security

Japan as a prospective member of the United Nations would accept in advance the obligations of Article 2 of the Charter, and the other parties would undertake reciprocally to be guided by those same principles with relation to Japan. The Allies would recognize that Japan as a sovereign nation possesses what the Charter refers to as “the inherent right of individual or collective self-defense”, and would agree that Japan might voluntarily enter into a collective security arrangement or arrangements participated in by one or more of them. Such arrangements would be designed solely for defense against armed attack from without, and any forces contributed by any Allied nation pursuant thereto would not have any responsibility or authority to intervene in the internal affairs of Japan. Assistance given at the express request of the Japanese Government to put down large-scale internal riots and disturbances in Japan would not be deemed intervention in the internal affairs of Japan. Japan would agree not to permit any foreign nation to have military facilities in Japan except pursuant to actions or recommendations of the United Nations or to a collective security arrangement or arrangements referred to above.

political and economic clauses

(a) Japan would agree to adhere to existing multilateral treaties designed to prevent the misuse of narcotics and to conserve fish and wildlife.

(b) Japan would agree to enter promptly into negotiations with parties so desiring for the formulation of new bilateral or multilateral agreements for the regulation, conservation and development of high seas fisheries.

(c) Each of the Allies would agree to notify Japan within a year of the effective date of the treaty which of its prewar bilateral nonpolitical treaties with Japan it wished to keep in force.

(d) Japan would renounce all special rights and interests in China.

(e) The power to grant clemency, reduce sentences, parole and pardon with respect to war criminals incarcerated in Japan would be exercised jointly by Japan and the Government or Governments which imposed the sentences in each instance and, in the case of persons sentenced by the International Military Tribunal for the Far East, by Japan and a majority of the Governments represented on the Tribunal.

(f) Pending the conclusion of new commercial treaties or agreements, Japan, during a period of three years, would (1) extend most-favored-nation treatment to each of the Allies in all matters pertaining to the importation and exportation of goods, and (2) accord national treatment or most-favored-nation treatment, whichever is more favorable, with respect to the commercial vessels, nationals and companies of the Allies and their property, interests and business activities in Japan. Japan would be entitled to withhold from any Allied nation more favorable treatment in respect to any of the above matters than that nation, subject to the exceptions customarily included in its commercial agreements, was willing to accord it in that respect. Japan would also be entitled to apply measures dictated by its balance-of-payments position or by its essential security requirements, and to reserve the exceptions customarily contained in commercial agreements. “National treatment” would not be deemed to include Japanese coastal and inland navigation. Pending the conclusion of civil air transport agreements, Japan, during a period of three years, would extend to each of the Allies not less favorable civil air traffic rights and privileges than those they enjoyed at the time of the coming into force of the treaty.

claims arising out of the war

All parties would waive claims arising out of acts taken during the war prior to September 2, 1945, except that (1) each of the Allied and Associated Powers would retain and dispose of Japanese property within its territories, except diplomatic and consular property and a few other limited categories; and (2) Japan would restore, upon demand, Allied property in Japan, or, if such property, whether or not taken under the control of the Japanese Government, is not restorable intact, would provide yen to compensate for the lost value. (An elaboration of these two exceptions is provided in Annex I.) Japan would waive all claims arising out of the presence of the Occupation forces in Japan since surrender.

settlement of disputes

Disputes concerning the interpretation or execution of the treaty not settled through the diplomatic channel would be referred for decision to the International Court of Justice, all of the treaty signatories undertaking to comply with the decisions of the Court. A specially established Arbitral Tribunal appointed by the President of the International Court of Justice from nationals of countries which were neutral in World War II would settle claims disputes. (An elaboration of these provisions will be found in Annex II.)

final clauses

(a) The right of adherence to the treaty would be extended to any nation at war or in a state of belligerency with Japan which had not been an original signatory thereto.

(b) The treaty would not confer any rights or benefits upon any state which did not execute and ratify or adhere to it, and Japan would not make a peace settlement with any other state which would grant that state advantages not granted to the parties to the treaty herein described.

general observation

It is to be observed that if peace were made along the foregoing lines, it would involve a very complete restoration of sovereignty to Japan free of onerous restrictions. Japan would express its intention to maintain and advance the high purposes, principles and standards of the post-surrender years, but would not be subjected to treaty compulsions in these respects. There would be no restrictions upon Japan’s right to rearm. The Allies would demand no reparations either out of the industrial assets, current production or gold stocks. There would be no continuing right to reclaim looted property. There would be no treaty restrictions upon Japan’s commercial activity, including shipbuilding and fishing, other than such as Japan may voluntarily adopt in the interest of promoting international good will. The Allies’ right to “most-favored-nation” commercial treatment would be dependent upon reciprocity on their part. The question of any repayment of Garioa indebtedness of some $2,000,000,000 is not made a matter of treaty compulsion, but left for mutual adjustment.

With respect to all of these matters, there is very considerable difference of opinion as between the Allies and there is within the United States a considerable body of opinion which questions the desirability of the kind of peace which is here outlined.

It may be that public opinion either within the United States or within the Allied Powers may render it necessary, in order to get peace, to add certain restrictions and burdens not enumerated in the above outline of projected treaty and it is suggested that the Japanese Government, in dealing with the people of Japan, should avoid giving any impression that it can now be taken for granted that the final treaty will be free of restrictions and burdens of the character mentioned in these General Observations.

Annex I

Elaboration of Exceptions to General Waiver of War Claims

I. Each of the Allies would have the right to retain and dispose of all property, rights and interests of Japan and Japanese nationals within its territory at any time between December 7, 1941, and the coming into force of the treaty, except (a) property of Japanese nationals permitted to reside in the territory of one of the Allies, except property subjected to special measures prior to September 2, 1945; (b) tangible diplomatic or consular property, net of any expenses incident to its preservation; (c) property of non-political religious, charitable, cultural or educational institutions; (d) property located in Japan, despite the presence elsewhere of paper or similar evidence of right, title or interest in such property, or any debt claim with respect thereto; and (e) trade-marks identifying products originating in Japan.

II. (a) Japan would restore, upon demand, within six months from the effective date of the treaty, the property, tangible and intangible, and all rights or interests of any kind in property, in Japan of the Allies and their nationals, unless the owner had freely disposed of his property without duress or fraud, and, to the extent that such property and interests, whether or not taken under the control of the Japanese Government, had been lost or damaged as a result of the war, would make compensation in yen equal to the amount necessary at the time of coming into force of the treaty (1) to purchase similar property, or (2) to restore the property to its condition on December 7, 1941. Compensation would not be made to persons whose activities and property were not subjected to special Japanese wartime restrictions applicable to Allied nationals generally. Claims of each of the Allied and Associated Powers and their nationals for compensation would be presented by its Government to the Japanese Government within eighteen months from the effective date of this treaty.

(b) If agreement on compensation should not be reached within six months after the filing of a claim, either of the governments concerned might refer the matter to the Arbitral Tribunal provided for in the treaty (see Annex II).

(c) Eights or interests in property would include directly and indirectly held ownership interests in juridical entities which were not nationals of an Allied Power, but which had suffered loss of or damage to property in Japan as a result of the war. Compensation with respect to such loss or damage would bear the same proportion to compensation payable to an owner under subparagraph (a) as the beneficial interests of such nationals in the corporation or association bore to the total capital thereof.

(d) Compensation in yen would be made in four equal annual installments without interest and if the total of allowed claims exceeds 40 thousand million yen, there would be a pro rata reduction so that the total would be that amount. The yen paid by way of compensation would not be convertible into foreign exchange except in accordance with Japanese foreign exchange regulations. Compensation payments in respect to agreed claims would begin without awaiting final adjudication of contested claims.

Annex II

Elaboration of Disputes Provisions

interpretation or execution

Any dispute between an Allied Government and Japan concerning the interpretation or execution of the treaty which is not settled through diplomatic channels would, at the request of a party to the dispute, and without special agreement, be referred for decision to the International Court of Justice. Japan and those Allied Powers which were not already parties to the Statute of the International Court of Justice would deposit with the Registrar of the International Court of Justice, on the date of the deposit of their ratification of the treaty, a general declaration accepting the jurisdiction, without special agreement, of the Court generally in respect of all disputes of the character referred to in this paragraph.

claims

Disputes between an Allied Government and Japan in connection with claims matters which are not settled through the diplomatic channel or otherwise could be referred by either party to an Arbitral Tribunal, consisting of three jurists to be designated by the President of the International Court of Justice on request of the depository government made within three months from the effective date of the treaty. The designations would be made from nationals of countries which were neutral in World War II. Vacancies on the Tribunal would similarly be filled by designation by the President of the International Court of Justice upon request of the depository government. Decisions of the tribunal would be by majority vote and would be final and binding.

The salaries of the members of the Arbitral Tribunal would be fixed by the President of the International Court of Justice, in consultation with the Government of Japan. The Government of Japan would pay the costs and expenses of the proceedings, including salaries of members and employees of the Tribunal, but not including costs incurred by other governments in the preparation and presentation of cases.

The authority of the Tribunal, and the terms of office of its members, would terminate at the expiration of ten years from the effective date of the treaty, unless Japan and a majority of the Allies agreed to fix an earlier or later termination date.

1. Copies of this memorandum were handed to Mr. Iguchi on February 5.
2. This was a resolution passed by the General Assembly on December 10, 1948. For text, see Department of State, A Decade of American Foreign Policy: Basic Documents, 1941–49 (Washington, Government Printing Office, 1950), p. 1156.