Comment on Draft Treaty of Peace with Japan

by W. J. Sebald

THE FOREIGN SERVICE
OF THE
UNITED STATES OF AMERICA

13

REC'D
NOV 26

ACTION
FE

INFO
DGR
L
CLI
S/S
UNA

=
006963

No. 806

SECRET

Subject: Comment on Draft Treaty of Peace with Japan.

The Honorable

Secretary of State,

Washington.

Sir:

With reference to this Mission's telegram no. 495 of November 14, 1949, giving General MacARTHUR's and my reactions to the draft treaty of peace with Japan dated November 2, 1949, I now have the honor to convey to the Department a more detailed exposition of this Mission's views with respect both to the document as a whole and to its individual articles and annexes.

The November 2 draft is manifestly a moderate and reasonable document, admirably designed to conform to standard treaty forms, to contain all principal desiderata of the United States Government and at the same time to attain acceptance by the other Allied and Associated Powers. The intense labor, thought and craftsmanship which have obviously been devoted to its formulation have resulted in a praiseworthy draft which the United States can present to its allies with good pride and conscience. After long consultation together, however, I and the other concerned officers of the Mission are agreed that careful attention to the psychology and other particularities of the Japanese people and attentive cognizance of Far Eastern political complexities will suggest means whereby the draft treaty might be made more nearly to conform with the underlying requirements which we believe should govern the efforts of the United States in bringing about a Japanese peace settlement.

On the basis of realities as they exist today, we believe that there are three basic objectives which should determine the policy of the United States in formulating this treaty, namely:

(1) Adequate provision for long-range security of the United States;

(2) Effectuation of a true and lasting regime of peace on the part of Japan; and

(3) The alignment of Japan for the indefinite future with the Western democracies and specifically with the United States.

All other considerations, we feel, are of secondary importance and should formally be provided for in the treaty itself only if useful in reaching and achieving these three United States objectives.

My idea of a workable treaty with Japan is that it should be a ringing declaration of peace; it should be a document of historic stature reflective of the high concepts of the Atlantic Charter; it should be broad and general in scope and dignified with an enduring philosophical approach, sublimating to the greatest extent possible the harsh and temporary realities of property settlements, commercial arrangements, and all the legal technicalities which can only clutter and obscure the principal objectives. So far as realities permit, I believe the treaty should be a simple but inspiring document. I feel it is important, too, that we bear in mind the crucial fact that we are dealing with Orientals with whom the proper psychological approach and manner of procedure are of cardinal importance. I would accordingly suggest that, since property settlements and commercial and legal arrangements must admittedly have a place, consideration be given to removing them as completely as possible from the broad, dignified framework of the treaty and relegating them to the annexes thereto or to supplementary conventions. In this manner, at least some of the psychological hazards involved in putting materialistic and legalistic considerations in the forefront could be avoided. National as well as individual "face" is a very real and controlling factor to the Oriental, even to a defeated nation, and must be considered.

We here are inclined to feel that the November 2 draft offers the Japanese too little tangible advantage in being admitted to the family of nations as a democratic state committed to peace and unqualified disarmament. The Japanese feel that the progress they have made in rebuilding their country under the Occupation deserves recognition, the country's past transgressions, ultimate defeat and unconditional surrender notwithstanding. We feel that the almost casual reference in paragraph 3 of Article 1 to Japan's post-war accomplishments constitutes scant recognition for a degree of cooperation and constructive achievement under the Occupation which is without parallel, and provides inadequate balance for the subsequent recital of the stern realities which a defeated nation must face. It may perhaps be reasonable also to suggest that there be included in the treaty some recognition of the economic and social problems Japan must solve in the future if its democratic development is to withstand the inevitable temptation to seek more expedient totalitarian solutions. Even a modicum of recognition for meritorious achievement and some sympathetic mention of the acute problems this nation must hereafter face would, it is believed, not be misplaced in a treaty which we hope may be instrumental in giving Japan maximum usefulness in the family of nations. Omission of such recognition in a document which of necessity must have some severe provisions could well sow the seeds of a resentment which might eventually make itself manifest in the pattern of future Pacific wars. In putting forth these suggestions we have no interest in making the treaty "soft", or merely palatable for the Japanese; we are looking at it from the cold practical viewpoint of American interest in a treaty which will draw out of the Japanese willing cooperation and support in achieving American ends.

It would seem naturally to be in the American interest to avoid initiative or too close identification with those elements of the treaty which must be drab and uninspiring, or even gratuitously wounding, merely in the hope of making the document acceptable to other powers which have so much less at stake and have contributed virtually nothing to the remaking of Japan. We fail to see any gain in allowing the onus of vindictive or punitive provisions of the draft to fall principally upon the United States by virtue of our publicly known position of draftor and initiator. We would not wish to have Japanese gratitude deflected from us to other Allied and Associated Powers who might find it tactically advantageous to propose a milder and less technically worded document, notwithstanding our political and economic influence and our achievements through the Occupation.

One aspect of the draft treaty of peace which has given me some concern is that it seems to me that the United States is left little or no bargaining power vis-à-vis the other Allies. While it is, of course, necessary to anticipate the sensibilities and desires of the Allied and Associated Powers, I question whether it is wholly prudent to attempt to satisfy all of those sensibilities and desires in the initial draft. In as much as other powers are most likely to bring forward unduly severe or impractical stipulations which we will be bound to reject as incompatible with fundamental American objectives, it might be strategically desirable to leave room for the acceptance of certain other provisions which we can now anticipate but need not necessarily include in the original draft.

It seems important to determine in advance whether the draft treaty may contain any provocation to the Japanese to seek to play off the Soviet Union against the Western Powers, including the United States. Soviet policy toward a Japanese peace settlement will presumably be directed toward securing provisions and advancing demands best calculated to promote communism and to draw Japan into the Soviet-dominated Far Eastern orbit. There are some indications that the Soviet Union may be prepared to offer Japan a more advantageous settlement on some points than is envisaged in the November 2 draft; fishing concessions may be offered to the Japanese and possibly even a return of part of the Kuril Islands or the Habomai-Shikotan group, in consequence of which the Soviet Union would be likely to seek favorable commercial and "cultural" arrangements with Japan. The Japanese communists are already contending that the Soviet Union will grant the Japanese fishing concessions and that the peace treaty should return to Japan all outlying islands which have "historically and ethnically" belonged to Japan. It is unlikely that the Japanese Communists are putting forth such significant views simply as Japanese patriots or as representing the independent opinion of the Japan Communist Party.

Any draft treaty which does not fully recognize conditions in the Far East as they exist today, and which fails determinedly to discard the psychology and concepts which prevailed before and at the time of Japan's surrender, will fall short of our basic needs. The Far Eastern situation has undergone a vast change during the past four years, largely to American disadvantage (with the single exception of our relations with Japan); the coming treaty must face this situation and take into account the obvious fact that the United States now has a vital stake, which did not exist four years ago, in a politically stable and friendly Japan. It may accordingly be questioned whether many of the terms of the November 2 draft may not be too severe for a Japan which suffered total defeat, without offering us any conceivable advantage. The draft could possibly be improved by making greater allowances for the fact that the difficult task of rebuilding Japan into a peaceful democratic country, and of meeting deficiencies to enable Japan to achieve a stable economy capable of sustaining its large population, has been primarily the responsibility and burden of the United States. We assumed this responsibility and burden ungrudgingly and have contributed wealth, energy, and skill in giving Japan a democratic government and a sound economy, which are in turn of direct benefit to the entire Far East. It therefore does not seem logical that we should seek in our treaty draft to anticipate and meet all the demands and possible objections of the other Powers, some of whom have made every effort to disrupt and destroy our constructive work.

Finally, I should like to suggest that far greater emphasis be placed on the United Nations as the focus and guide for Japan's future international relations. This would be entirely honorable and acceptable to the national psychology of Japan. The present mood of the Japanese Government and people is to embrace the highest international ethics open to general participation.

It is with some diffidence that we have formulated the foregoing suggestions for the modification of a draft which is so obviously the considered result of painstaking study and discussion, expert legal opinion, and consultation among the various agencies principally concerned in Washington. We have felt, however, that the Department would wish to be fully apprised of the considerations occurring to its officers in the midst of the Japanese scene, where they are in close daily touch with the Japanese viewpoint and reactions. It has accordingly been my hope that in preparing the foregoing comment and suggestions we might contribute something to the treaty in the way of dignity and inspiration that would help to make it a truly historic document reflection the high ideals of the United States and of the United Nations, at the same time meeting the realities we face today, and serving the over-riding interest of the United States in a free and friendly Japan. If the peace treaty itself is an appropriate document inspiring Japan to win a place of honor and friendship in international society, we believe it will constitute a valuable safeguard to the American national interest.

Article-by-article comment on the draft text of the treaty forms an enclosure to this despatch.

Respectfully yours,

W. J. Sebald

Enclosure

Enclosure:

Detailed Comment on

November 2 Draft Treaty.

S 320.1

CNSpinks/CCoville/OKHuston/NJSebald:gmd

Parchment flat to the Department.

SECRET

Enclosure to Despatch No. 806 dated November 19, 1949, from Office of United States Political Adviser for Japan, Tokyo, subject: "Comment on Draft Treaty of Peace with Japan".

DETAILED COMMENT ON NOVEMBER 2 DRAFT TREATY

Preamble. Before the final clause of the mid-paragraph of the preamble insert: "will re-establish Japan in normal international intercourse, will promote the principles of the United Nations, and..."

Article 1. It is believed that consideration should be given to omitting paragraphs 2 and 3, particularly the latter. It appears unlikely that the Japanese will endeavor to set aside the major reforms which have been achieved under the Occupation. To commit Japan by a stipulation in the peace treaty to abide by this program would emphasize the extent to which the reforms are of foreign origin, and it would provide the basis for continued complaint by other Powers against Japan's conduct of her domestic affairs. Communist facility in exploiting such openings leaves little doubt but that the Soviet Union would most profit thereby.

Alternatively, it is suggested that consideration be given to modification of the four numbered paragraphs of Article 1 to read substantially as follows:

1. Japan desires membership in the United Nations, will apply forthwith, and when admitted will accept membership and the obligations contained in the Charter of the United Nations, including the maintenance of international peace and cooperation.

2. Japan desires to participate in, and will apply for admission to, other international agreements to which sovereign states in general are eligible.

3. The Allied and Associated Powers undertake to support Japan's aforementioned applications."

We are of the opinion that it is desirable to give the signatory Powers of the treaty an interest in Japan's admission to the United Nations and other international bodies.

Article 2. This short statement, and the Preamble, are the only friendly and sympathetic notes in the entire treaty. It is recommended that Article 2 be further developed.

Article 3. It is admitted that this Article offers a practical and convenient manner of describing the territories which Japan gives up and those which Japan retains. It is believed, however, that the method of delineation employed in this Article has serious psychological disadvantages. If possible, it is recommended that another method of description be employed which avoids circumscribing Japan with a line even if it is necessary to enumerate a large number of territories in an annex. We suggest that the practicability be explored of defining Japan territorially in positive terms, altering Article 3 approximately as follows: retain the first six lines of the draft of paragraph 1; name further islands as necessary off the coasts of Japan; continue with the words "and all other islands nearer therefrom to the home islands of Japan"; and conclude Article 3 with the statement that "all islands within the area described, with a three-mile belt of territorial waters, shall belong to Japan".

In any event, the omission of paragraph 2 and of the map is recommended.

Following such a revised Article 3 an article might advisably be inserted stating that Japan hereby cedes and renounces all territory, mandate, and concession rights, titles, and claims outside the territorial area described in Article 3.

(It is noted that in the November 2 draft the principle of renunciation by Japan without direct cession to a new sovereign is recognized in Articles 8 through 12.)

Articles 4 through 12. We suggest that in the treaty Articles 4 through 12 of the November 2 draft be omitted, and that in a document subsidiary to the treaty among the signatories other than Japan the disposition of territories formerly under Japanese jurisdiction be agreed upon. The necessity of direct cession would thereby be removed from the treaty proper and Japan would not rest under the necessity of being a party to it.

In the subsidiary agreement, with regard to Taiwan it is suggested that consideration be given to the question of a plebiscite to determine for or against a United Nations trusteeship, on the ground that disturbed conditions in China intervening since the Cairo Conference invalidate any automatic disposition of the Island. (The discussion in the pertinent footnote of the November 2 draft, which takes into account the contingency of China's possible failure to sign the treaty, seems to us an inadequate treatment of the important political and strategic factors involved in determining the disposition of Taiwan.)

With regard to the disposition of islands east and northeast of Hokkaido to be proposed in such subsidiary agreement, it is suggested that the draft to be supplied to the United Kingdom and British Commonwealths by the United States contain a provision for the "ceding to the Soviet Union in full sovereignty of the Kuril Islands, being those islands eastward and northeastward from the mid-channel line between Etorofu Island and Uruppu Island", and that this be accomplished by a footnote to the effect that "It is the hope of the United States that the Soviet Union will not seek to annex Etorofu, Kunashiri, Shikotan, or Habomai Islands. The claim of their forming a part of the Kuril Islands is historically weak, and they are of far greater navigational and fishing importance to Japan than to any other possessor". Concordantly with this expression, the islands listed in our proposed Article 3 as belonging to Japan would include specifically Etorofu, Kunashiri, Shikotan, and Habomai Islands.

With regard to the disposition of islands formerly possessed by Japan in the direction of Korea it is suggested that Liancourt Rocks (Takeshima) be specified in our proposed Article 3 as belonging to Japan. Japan's claim to these islands is old and appears valid, and it is difficult to regard them as islands off the shore of Korea. Security considerations might also conceivably render the provision of weather and radar stations on these islands a matter of interest to the United States.

Undertakings to support the trusteeships proposed in Articles 7 and 8 of the November 2 draft would properly form a part of the suggested subsidiary agreement among the signatories other than Japan.

Article 13. No comment.

Article 14. It is questioned whether Japan should be compelled to recognize treaties of little or no direct concern to herself or treaties which have not yet been concluded.

Articles 15 and 16. It is suggested that consideration be given to deleting these articles. It is believed that Japan will be most eager in any event to revive its appropriate bilateral and multilateral treaties. Revived voluntarily, the status of Japan's participation in the revived treaties would not suffer from the taint of the apparently unequal provisions of Article 15 as drafted.

Article 17. Already covered by the general article proposed for insertion after Article 3.

Article 18. No comment.

Article 19. It is strongly recommended that this entire Article be deleted.

Articles 20 through 30. (Security provisions not yet received.)

Article 31. To take the place of this Article as it appears in the November 2 draft, a substitute Article along the following lines is recommended:

"The Allied and Associated Powers take note of the distribution already effected of assets from Japan as reparations, and affirm that their further reparations claims will in no instance exceed the value of Japanese assets in their respective jurisdictions. To the amount of such further reparations claims each of the Allied and Associated Powers shall have the right to seize, retain, liquidate, or take any other action with respect to all property, rights, and interests which were within its territory at any time between the beginning of hostilities between such country and Japan and September 2, 1945, and which belong to Japan or to Japanese nationals, and to apply such property or the proceeds thereof to such further reparations claims."

The purpose of the proposed revised Article 31 is to settle the reparations question and to provide a legal basis for the seizure of Japanese assets abroad (see also our comments under Article 41, paragraph 1).

Article 32. No comment.

Articles 33 through 37. It is recommended that the matters contained herein be covered by a single general statement, appearing as one Article referring to annexes

Article 38. Appears unnecessary; deletion recommended.

Article 39. Aside from the inability of the Japanese Government to pay compensation as provided in the last two clauses of Article 39, and aside from the fact that the United States Government would probably indirectly pay such compensation through economic aid to Japan, it is suggested that the negotiating position of the United States would be improved by at least omitting the clauses "and shall pay compensation for damaged property in Japan, as provided in Annex VII".

We suggest a revised wording of Article 39 substantially as follows:

"In so far as Japan has not already done so, Japan shall restore all tangible or intangible property located in Japan which on December 7, 1941, was owned by the United Nations and their nationals and was not subsequently legally disposed."

Article 40. No comment.

Article 41. Deletion of paragraphs 1, 2, 3, and 6 is recommended.

The legal basis of paragraph 1 is not apparent. The part of the substance of this paragraph which appears to us desirable to retain has been incorporated in the suggested alteration of Article 31 above.

Paragraph 2 of Article 41 appears gratuitous and therefore undesirable.

Paragraph 3, which would require the Japanese Government to compensate Japanese nationals whose property abroad is seized, is in our opinion unrealistic. We believe that the Japanese Government in its present economic condition would find this burden beyond its capacity.

Paragraph 6 appears unnecessary and therefore undesirable. The trusteeship agreements ought to be able to stand on their own feet.

Paragraph 4 refers to Annex VIII. It is recommended that Annex VIII be reduced to accord with the sense of the proposed revision of Article 31.

Paragraph 5 refers to Annex IX, the retention of which is recommended.

Article 42. No comment.

Article 43. We are skeptical concerning the proposed Arbitral Tribunal and consider that the extension into the peace, for a period of years, of a means of adjudication which is imposed by the treaty would tend to protract important issues which ought to be finally disposed by the peace settlement.

Article 44. No comment.

Article 45. No comment.

Article 46. Deletion recommended for reasons included in our discussion of Article 1 above.

Article 47. No comment.

Article 48. Deletion recommended. Japanese voluntary cooperation in narcotics matters is to be expected and voluntary cooperation has merits which a requirement in a peace treaty would not have. We take the same position on this Article as on Articles 15 and 16 above.

Article 49. In light of Japan's acceptance of United Nations principles we question the necessity (and therefore the desirability) of including this Article in the treaty. If it is to be retained, however, we note with satisfaction that the guarantees required are on a reciprocal basis.

Article 50. We concur heartily in the inclusion of this Article. Our difference of view as between this Article and the proposed Arbitral Tribunal (Article 43) is that the provisions of one are accepted by all member nations and the provisions of the other would be imposed by a treaty of peace (which at best is a coercive commitment).

Article 51. No comment.

Articles 52 and 53. We are opposed to the provision for revision, and we recommend its deletion. If Article 52 is nevertheless retained it is recommended that the word "may" be substituted for "shall" at the end of the second line, and that in the fifth line the words "reviewing the situation of Japan and of" be omitted.

CNSpinks/CCoville/CKHuston/WJSebald:hh