Memorandum by Jack B. Tate, Dec 19, 1949
December 19, 1949
|TO:||FE - Mr. Maxwell M. Hamilton|
|FROM:||L - Jack B. Tate|
|SUBJECT:||Territorial Clauses of Draft Japanese Peace Treaty.|
You have requested the view of this Office concerning the propriety of redrafting the territorial clauses of the draft Japanese Peace Treaty so that Japanese territory will be defined, Japan will renounce all rights to all other territory to the Allied and Associated Powers who will be made in a separate instrument to be executed simultaneously with the Japanese treaty.
There is no rule of international law prescribing any single manner for the transfer or or cession of territory. Since territorial questions are often a threat to peaceful international relations, methods which result in an unequivocal settlement recognized by the nations of the world are desirable. For this reason, the common manner of disposing of territories of a defeated enemy, when the recipient of the territory is agreed to by all concerned, is by cession in a treaty of peace (see, e.g., Italian Treaty of 1947, Arts. 6, 11, 14; Hungarian Treaty of 1947, Art. 1, Finnish Treaty of 1947, Art. 2).
Where the recipient is not agreed to by all concerned, a power of disposition, limited or unlimited depending on particular circumstances, is often given by the defeated enemy in the treaty. In those cases in which this method has been used, there are generally two circumstances present: 1) the disposition is not agreed to by all concerned at the peace conference, 2) something needs to be done outside the peace conference before definitive disposition can be agreed to by those concerned (a plebescite, a placing under mandate through a League of Nations, etc.) The Versailles Treaty is good example of this method; see, e.g., Arts. 87 (Polish frontier), 118 and 119 (German Colonies). Article 23 of the Italian Treaty of 1947 (Italian Colonies) is another.
In general, then, past practice reveals that actual disposition by cession or transfer by the defeated enemy to the recipient is appropriate where the recipient is agreed upon and no important further steps are needed, while a power of disposition is used when there is uncertainty. The Italian Treaty of 1947 illustrates this: cessions of certain territories to Greece, France and Yugoslavia were made, and a power of disposition to the Big Four (US, UK, USSR, France), or failing their agreement to the General Assembly, in the case of the Italian Colonies, whose disposition could not be agreed in the Peace Conference.
If this usual practice is not followed, a second document making the intended territorial disposition would be necessary. Since territorial dispositions are generally matters of considerable importance to the various nations concerned, most nations would doubtless desire that the disposing document be of the same dignity, namely, a treaty. Hence, two documents would need to be ratified. Where the intended recipient is agreed upon, and no important matters call for outside action, it would be a matter of some difficulty to explain to other nations the necessity for the departure from practice, unless a substantial reason appeared. It is our understanding that the reason advanced for separate documents in the case of cession of Japanese territory is that the absence of "cession to" clauses in the Treaty of Peace will be of psychological benefit to Japan. While the assessment of such a rationale is not the function of this Office, it would appear to be difficult to appreciate since the territory will in any event be lost—in two documents instead of one.
In the event that a decision is taken to use two documents, there are certain drafting changes which you have submitted. This Office will be glad to cooperate in such drafting.