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

694.001/4–351

The Deputy to the Consultant (Allison) to the United States Political Adviser to SCAP (Sebald)

secret
official
informal

[Washington,] April 3, 1951.

Dear Bill: There is enclosed a copy of a memorandum to Mr. Dulles from the group in the Defense Department who are working on the draft bi-lateral and administraive agreement with the Japanese. These are comments on the Japanese suggestions contained in Tokyo’s 1678 of March 17th.¹ The only major point really at issue seems to be that contained in paragraph h on page 3 of the enclosed memorandum. The other matters are of lesser moment, with the exception of the suggestions in paragraph e on page 2, concerning jurisdiction, and this is a point which will require further ironing out at a high level between State and Defense. In that connection, the Defense Department officers on a working level see merit in the Japanese position on jurisdiction, but the Judge Advocate General’s Department is at present insisting on treating Japan as an uncivilized country with supposedly barbaric laws and jails, etc. where it is necessary to have a general extra-territorial position for the United States forces. Your comments and suggestions as to how to overcome this will be helpful to us, although I believe in the final analysis the State Department views will prevail.

With regard to the problem created under paragraph h there may be real trouble, particularly if in fact the Japanese have receded from their previous agreement that in case of hostilities or imminently threatened hostilities, the armed forces in Japan should be under a Supreme Commander named by the United States. The principle of unified command is one which is considered of basic importance by this Government and it is followed in all of our various mutual assistance arrangements. The European countries, members of NATO, have agreed, indeed greatly wanted, that General Eisenhower should be the Supreme Commander and this has not appeared to them any derogation of sovereignty. In like manner, it is believed the Japanese should not be averse to having a Supreme Commander in the Japan area designated by the United States. This is especially true during the period, which will undoubtedly last for some time, when the United States has the preponderant burden to bear in connection with armed forces. If, on the other hand, the Japanese concern is more with wording than with the substance and they are fearful about signing an agreement which specifically envisions the creation of Japanese armed forces before the Constitutional question had been settled or that would give the Japanese people the impression that its government was signing away rights over its armed forces, it may be that some alternative wording can be devised. Perhaps this problem could be settled by a private exchange of letters, although I do not think this would be very satisfactory.

We would like to receive your comments and suggestions as soon as possible on this general subject. It is most important for us to know whether in fact the Japanese still hold the same opinions which they expressed during our last visit or whether they are beginning to regret the agreements they made at that time and are now attempting to undercut them in various ways. Their intentions in this respect may have a very real bearing on the desire of this country to push forward with an early peace treaty. It is hoped that you will be able on an informal basis to get some definite expression from the Japanese on this point.

The latest Japanese suggestion on the unified command has not yet been referred formally to the JCS and it is the advice of Colonel Wagstaff, who drafted the enclosed memorandum, that it not formally be put up to the JCS until we hear further from you. Colonel Wagstaff believes that if the JCS were formally asked at this point to agree to the Japanese suggested revision, it would so muddy the waters as to make extremely difficult going ahead with the bi-lateral and the administrative agreement on anywhere near the present basis.

In letting us have your comments, it is suggested that these be sent by air pouch as for the present we wish to keep this problem on a secret and informal basis as far as possible.²

Sincerely yours,

John M. Allison

[Enclosure]

Memorandum for Mr. Dulles

secret

[Washington,] 2 April 1951.

Subject: Japanese Comment on Administrative Agreement

1. The Department of Defense group which is preparing informal comment for you on the subject of a Japanese Peace Treaty has completed its study of the recommendations of the Japanese Government on the draft administrative agreement. The members of the group unanimously agree that the suggested amendments clearly indicate that the Japanese conceive that any post treaty military arrangements will be made on a basis of full international equality with the United States. The group has no knowledge of the degree to which the Japanese Government previously agreed to the draft documents presented them by the Dulles Mission; however, the group notes that the Japanese have now recommended certain rather startling departures from the original concept. In this regard note paragraph 2h, below, which appears particularly significant from the military viewpoint.

2. Specific comment with respect to the recommendations of the Japanese Government follows hereafter. (The number in parenthesis refers to the appropriate paragraph of the State Department cable 1678. 17 March).

a. Paragraph (10) : Definition of terms.

The Japanese note that the terms “installations” and “facilities” are ambiguous as to their respective meanings.

Comment: The treaty and its corollary agreements must in final form be definite and clear, and the Japanese recommendation with respect to these particular words should be considered. However, it is not apparent that this is a vital issue at the moment. These terms might well be defined in the annexes listing the installations and facilities.

b. Paragraph (11) : Chapter I, Status of garrison troops.

The Japanese have requested that the contents of paragraph 1 of Chapter I be incorporated in the text of the bilateral security treaty.

Comment: It is not deemed appropriate for the inclusion of administrative matters in the security treaty which treats of broader principles. Moreover, the Department of Defense is not prepared at this time to agree to the inclusion even in the administrative agreement of the language used in Chapter I, paragraph 1, i.e., “The U.S. forces stationed in Japan shall enjoy the privileges and immunities which are normally accorded under international law …”, on the ground that such language is too indefinite and uncertain.

c. Paragraph (12) : “Security forces.”

The Japanese recommend that the term “security forces” as used in Chapter I (3), (9), (12) should be amended to read “U.S. forces.”

Comment: This amendment is acceptable and desirable but is not considered a change of substance.

d. Paragraph (13) : Chapter I (7), line 6.

The Japanese recommend that the words “U.S. installations and areas” should be deleted and the words “the installations and areas” be inserted therefor.

Comment: This amendment is acceptable and desirable and should be approved as it tends to broaden U.S. rights in post-treaty Japan.

e. Paragraph (14) : Chapter I (9).

The Japanese recommend that the paragraphs of the draft administrative agreement referring to the judicial jurisdiction of the U.S. Government in post-treaty Japan be amended in such manner as to change entirely the legal concept proposed in the original U.S. draft.

Comment: In general, the U.S. draft provides that the U.S. Government will have the exclusive right to try and punish U.S. personnel in Japan. The Japanese amendment provides that the United States shall have exclusive jurisdiction over its personnel for all offenses on the military reservations and for offenses committed in the course of duty off the U.S. military reservations. However, Japan would have the right to try U.S. military personnel for offenses off the military reservations which are committed while off duty. This legal problem must be studied in detail by the Department of Defense before a final opinion can be rendered thereon, but a perusal of the Japanese recommendation clearly indicates that the position of the Japanese Government on the problem of U.S. jurisdiction rights is midway between the extremes of the position taken in the draft administrative agreement as contrasted to the principles of judicial jurisdiction which will govern the forthcoming NATO agreements.³

f. Paragraph (15) : Chapter II, Expenses.

The Japanese recommend that the first sentence of Chapter II be incorporated in the bilateral security treaty.

Comment: Approval of this recommendation is unacceptable (see para b, above).

g. Paragraph (16) : Chapter III, Comite.

The Japanese recommend that this chapter be included in the bilateral security treaty.

Comment: This recommendation is not acceptable (see para b, above). It should be noted, moreover, that the Japanese recommendation (see paragraph (9) of cable) with respect to Chapter III is a wide departure from the draft administrative agreement in that it would broaden the committee’s authority to an unacceptable degree.

h. Paragraph (17) : Chapter IV, Collective defense measures.

The Japanese recommend that the original chapter be deleted and the following inserted therefor:

“In event of hostilities or imminently threatened hostilities in Japanese area, governments of two countries will take appropriate measures for unified collective defense for which concrete plans shall be formulated by joint committee.”

Comment: It is apparent that this recommendation by the Japanese Government is a radical departure from the provisions of the draft administrative agreement whereby all security forces in Japan would, in the event of hostilities or imminently threatened hostilities, be placed under the unified command of a supreme commander designated by the U.S. Government. This principle of command involved is of basic importance and the Joint Chiefs of Staff would undoubtedly non-concur in any arrangement whereby all the forces in Japan were not under the control of a U.S. commander in the event of hostilities. This principle was specifically included in the intra-governmental directive of 12 September 1950, and it is not believed that the JCS will modify their views in this regard.

3. The group has further comments on the administrative agreement which are not connected with the Japanese position. Their comments will be submitted to you shortly.

Jack J. Wagstaff

Lt. Colonel, GSC

1. Not printed, but see editorial note, p. 930.

2. In a letter of April 16 to Mr. Allison, Mr. Sebald stated in part:

   “This is just a hasty note, prior to the arrival of the Dulles party this afternoon, to let you know that I have received your letter of April 3 and have discussed with Iguchi the substance of your second and third paragraphs. As we shall so shortly have the other members of your team here to discuss this and related matters, I shall not go into more detail at this time than to say that we received from Iguchi categorical assurances that the Japanese Government has no substantive objections to the language of Chapter IV of the Administrative Agreement as initialed by you and Iguchi, and that their proposed revision in no sense represented a ‘backing away’ on the part of the Japanese with respect to the principle of a unified command under U.S. direction. Their concern, it appears, has to do solely with the possible effects of the language of Chapter IV on the Japanese people in the event of the publication of the text of the Administrative Agreement.” (Tokyo Post Files: 320.1 Peace Treaty)

3. Documentation on negotiation during 1951 of agreements ancillary to the North Atlantic Treaty is scheduled for publication in volume iii.