Foreign Relations of the United States, 1947, The Far East, Volume VI

740.0011 PW (Peace)/8–747

Memorandum by the Legal Adviser (Fahy) to the Under Secretary of State (Lovett)

top secret

[Washington,] August 7, 1947.

Subject: Manner of Preparation of the Treaty of Peace With Japan.

Introductory

The note delivered by the Soviet Ministry of Foreign Affairs to the American Embassy on July 22, 1947, in response to the United States invitation to attend an eleven-power conference beginning August 19, 1947, has accentuated the following questions concerning the manner of preparation of the Treaty of Peace with Japan:

1. Do existing international agreements require that the Treaty of Peace with Japan be drawn by the Council of Foreign Ministers?

2. In the event that the Soviet Government insists that the Japanese peace settlement be prepared by the Council of Foreign Ministers, are other states which participated in the war against Japan at liberty to prepare a Japanese peace settlement in some other body without the participation or assent of the U.S.S.R.?

These questions will now be considered in order.

The Forum

At the end of a war between two belligerents the victorious state fixes the time and manner of making peace with the vanquished enemy, unless arrangements to the contrary have been agreed upon between the two belligerents, by armistice or otherwise. When a coalition of states has defeated a common enemy, the victorious powers similarly control the making of peace, either acting together pursuant to agreement or acting separately in the absence of agreement. See Oppenheim, International Law (6th ed., 1944) 470, note 1 (conclusion of peace with Germany following World War I).

The Council of Foreign Ministers was established pursuant to a decision of the heads of the Governments of the Soviet Union, United States, and United Kingdom in the tripartite conference of Berlin in July and August 1945. The conference protocol, issued on August 2, 1945,¹⁵ stated:

“The conference reached an agreement for the establishment of a Council of Foreign Ministers, representing the five principal Powers, to continue the necessary preparatory work for the peace settlements and to take up other matters which from time to time may be referred to the Council by agreement of the Governments participating in the Council.”

The five principal Powers were stated to be the United Kingdom, Soviet Union, China, France, and the United States. Paragraph 3 of the agreement for the establishment of the Council read:

“3. (i) As its immediate important task, the Council shall be authorised to draw up, with a view to their submission to the United Nations, treaties of peace with Italy, Rumania, Bulgaria, Hungary, and Finland, and to propose settlements of territorial questions outstanding on the termination of the war in Europe. The Council shall be utilized for the preparation of a peace settlement for Germany, to be accepted by the Government of Germany when a government adequate for the purpose is established, (ii) For the discharge of each of these tasks, the Council will be composed of the members representing those states which were signatory to the terms of surrender imposed upon the enemy State concerned. For the purpose of the peace settlement for Italy, France shall be regarded as a signatory to the terms of surrender for Italy. Other members will be invited to participate when matters directly concerning them are under discussion, (iii) Other matters may from time to time be referred to the Council by agreement between the member Governments.”

China and France, which were not represented at the Berlin conference, were invited to adopt the text of the agreement on the establishment of the Council of Foreign Ministers and to join in establishing the Council. They did so subsequently, and the Council was established.

It is to be noted that the Berlin statement introducing the text of the agreement for the Council referred to “a Council of Foreign Ministers, representing the five principal Powers, to continue the necessary preparatory work for the peace settlements”. This plural reference to peace settlements, while not in terms confined to Europe, might be interpreted as so confined since paragraph 3(i) of the agreed text refers specifically to the several European peace settlements, and since the Berlin conference was convened to deal with European problems. The Soviet Union was then still at peace with Japan.

Paragraph 3(iii) provided that other matters could be referred to the Council by agreement among the member governments. It could not, however, be inferred from these circumstances that work by the Council on a peace treaty with Japan was definitely not contemplated. Work on the “peace settlements” was to be done by a Council “representing the five principal Powers”, including China; China would not be among the members of the Council preparing the European satellite treaties under the terms of paragraph 3(ii). Therefore, the inclusion of China must have been for a purpose other than the specific purposes enumerated in paragraph 3(i), and might well have included the purpose of preparing later a Japanese peace treaty. The omission to mention specifically a Japanese peace treaty for work by the Council should, for a further reason, not be regarded as foreclosing that intention: such a mention would have been inappropriate before a Soviet declaration of war on Japan. Yet the very fact that the Soviet Union was not then at war with Japan seems to preclude construing the language of the Berlin protocol as a definite commitment that the Council would work on the Japanese treaty.

It should be noted, however, that the question of Soviet entry into the Pacific war was in the minds of the participants at the Berlin conference. See, e.g., minutes, meeting of the Heads of Government, July 19, 1945 and July 29, 1945 (discussion of use of German navy and merchant fleet); minutes, meeting of the Heads of Government, July 29, 1945 (discussion of manner of entry of USSR into Far Eastern War). And the record of the discussions at the Berlin conference shows that the question of procedure for making a Japanese peace treaty was even then under consideration by the heads of the three Governments. Those discussions provide the background of the decision to establish the Council of Foreign Ministers, and show what was contemplated with respect to the Council and Japanese peacemaking.

On the first day of the conference, the heads of the three Governments took up the United States proposal for a Council of Foreign Ministers. Mr. Stalin said he was not clear about the inclusion of China in the Council, as he supposed it was contemplated the Council would discuss European problems; for this reason, he wished to question the inclusion of China. Mr. Truman stated that China was a permanent member of the Security Council of the United Nations. Mr. Churchill opposed the participation of China in the European settlement. Mr. Truman “observed that he had no objection to China being excluded from the Council”. Minutes of July 17, 1945.

The proposal for the Council was then referred to the three Foreign Ministers. They began discussion of it on July 18, and Mr. Molotov “again raised the question of China but said that if the Council was to deal with other than exclusively European affairs the objections to China’s participation would drop”. Mr. Byrnes “suggested that the Council be composed of five powers but that participation of China be limited to problems concerning the Far East or problems of world-wide significance. He explained that if the war with Japan should end soon they would in this manner have established the organization to deal with the problem of peace in the Far East. The other reason for including China was that China is one of the permanent members of the Security Council.” Mr. Eden then agreed that “if the Council’s sphere were to be the world, China should be included”. “Mr. Molotov proposed that the Council of Foreign Ministers be established to deal with both European and non-European affairs and should be composed of five members.” Minutes, meeting of the Foreign Ministers, July 18, 1945.

Basic agreement was reached on this proposal, and the preparation of final text was remitted to a drafting committee.^* The text of the agreement establishing the Council was approved by the heads of the three Governments on July 20, 1945.

From the foregoing it is my opinion that the protocol of the Berlin conference, containing the text of the agreement to establish the Council of Foreign Ministers, does not contain a specific commitment concerning preparation of a Japanese peace treaty by the Council—as it does concerning the German and other European peace treaties—notwithstanding that the agreement to include China as a member of the Council was reached in part on the basis of Mr. Byrnes’ argument^† that the Council would be the agency for preparing a peace settlement in the Far East. It may therefore be concluded at most that there was a political understanding or intention but not an international agreement at Potsdam to the effect that the Council of Foreign Ministers would be the body for preparing the Japanese peace treaty. No more can be said. It is impossible from the minutes to be precise as to how far there was a meeting of minds even on such a political understanding. Mr. Molotov’s final statement was very general, that the Council “deal with both European and non-European affairs” and should therefore include China. Cf. Oppenheim, International Law (5th ed. 1937) 685, § 482; No. 6, Status of Eastern Carelia, I World Court Reports 190 (1923) (League Council’s request for an advisory opinion declined by the Court in a dispute where USSR maintained that a Declaration concerning autonomy of Eastern Carelia did not constitute a binding obligation toward Finland but was furnished merely by way of information in conjunction with negotiations for the Soviet-Finnish Treaty of Dorpat). This situation, coupled with the altered political circumstances, two years after Potsdam, would warrant the United States in feeling that it is not bound by such a doubtful political understanding, not incorporated in the agreement arrived at, if it is deemed that, in the light of subsequent political experience, the Council is not an effective or proper agency for concluding the Japanese peace settlement, and if political considerations now necessitate the adoption of a different procedure.

Separate Peace without the Soviet Union

If the Soviet Government insists that the treaty of peace with Japan be prepared by the Council of Foreign Ministers, and if the other ten Governments represented on the Far Eastern Commission are not willing that the Council should do so, the question is then raised whether those other ten are at liberty to prepare a treaty among themselves and present it for signature to Japan and to the other members of the United Nations at war with Japan.

At the outset it may be stated that no rules of international law prevent in general the employment of separate peace-procedure by a number less than all of the victorious belligerents in a war. It is necessary then to inquire what obligations those belligerents have undertaken in that regard.

There is contained in the joint Declaration by United Nations, of January 1, 1942,¹⁶ to which 26 states were signatory, the following undertaking:

“2. Each Government pledges itself to cooperate with Governments signatory hereto and not to make a separate armistice or peace with the enemies.”

Probably the terms “separate armistice or peace” should be read together, and in the sense that none of the United Nations would withdraw from the war and make any separate arrangement with an enemy before victory was achieved. The emphasis here was on continuing the war, together, to a successful conclusion. Thus the obligation not to make a separate peace did not include the obligation, after the war had been won, not to conclude a separate treaty of peace regardless of the impossibility of concluding a joint United Nations peace with each enemy.

Subsequent conferences among the great powers resulted in further statements that have some bearing upon the question now under consideration. The communiqué of the Moscow conference of October 1943¹⁷ began:

“The Governments of the United States, the United Kingdom, the U.S.S.R. and China: united in their determination, in accordance with the declaration by the United Nations of January 1, 1942, and subsequent declarations, to continue hostilities against those Axis Powers with which they respectively are at war until such Powers have laid down their arms on the basis of unconditional surrender; conscious of their responsibility to secure the liberation of themselves and the people allied to them from the menace of aggression; recognizing the necessity of ensuring rapid and orderly transit from war to peace and of establishing and maintaining international peace and security with the least diversion of this [the] world’s human and economic resources for armaments; jointly declare:

1. That their united action, pledged for the prosecution of the war against their respective enemies, will be continued for the organization and maintenance of peace and security;”

And the Teheran Declaration of December 1, 1943¹⁸ stated:

“We, The President of the United States of America, the Prime Minister of Great Britain and the Premier of the Soviet Union have met these four days past in this the capital of our ally Iran and have shaped and confirmed our common policy.

“We expressed our determination that our Nations shall work together in war and in the peace that will follow.

. . . . . . .

“And as to peace we are sure that our concord will make it an enduring peace. We recognize fully the supreme responsibility resting upon us and all the United Nations to make a peace which will command the good will of the overwhelming masses of the peoples of the world and banish the scourge and terror of war for many generations.”

These statements of a general character expressed a determination on the part of the participating powers to work together in organizing peace after the war. There was no specific commitment to make treaties of peace only by joint action if friendly cooperation to that end should not prove possible or be conducive to a just peace. In fact the statements could be interpreted as meaning only that the participating governments would cooperate in establishing a world system or organisation for maintaining peace after the war. However, paragraph 5 of the Teheran Declaration, quoted above, referred to “the supreme responsibility resting upon us and all the United Nations to make a peace …”, suggesting that the unity of action promised earlier should obtain inter alia in the negotiation of peace treaties.

An even stronger statement along the same lines appeared in part IX of the Crimea Conference report, February 11, 1945:¹⁹

“IX. Unity for Peace as for War.

Our meeting here in the Crimea has reaffirmed our common determination to maintain and strengthen in the peace to come that unity of purpose and of action which has made victory possible and certain for the United Nations in this war. We believe that this is a sacred obligation which our Governments owe to our peoples and to all the peoples of the world.”

These statements, made in declarations by the great powers at international conferences, comprise political undertakings by those powers to act in concert after the war, with respect to the negotiation of peace treaties as well as other matters in the organisation of peace. But direct commitments regardless of circumstances to make treaties of peace only jointly are not found in the statements. If it is the view of this Government that the accord of purpose represented by earlier statements has been breached, it is clear that there is no international agreement which holds the United States to a course of conduct it is convinced has become an ineffective and impracticable method of settlement of post-war problems.

Legal Consequences of Separate Peace

A separate memorandum will be submitted at an early date²⁰ concerning the legal situation that would result from the making of a peace settlement with Japan in the absence of participation by the Soviet Government.

Charles Fahy

15. See Report on the Tripartite Conference of Berlin, August 2, 1945, Foreign Relations, The Conference of Berlin (The Potsdam Conference), 1945, vol. ii, p. 1499.
16. It is apparent from the Foreign Ministers’ discussion on July 18 that paragraph 3 (iii) of the agreement establishing the Council was included for the purpose of making clear that the Council might deal with matters other than peace-making; the language of 3(iii), however, left decision on additional Council agenda up to agreement of the member Governments so that the Council would not necessarily supersede the meetings of the three foreign secretaries agreed on at Yalta (at first the British, and later the Russians, opposed dropping the three-power consultation agreed at Yalta.) [Footnote in the original.]
17. China was included because also of consideration for her world position recognized in permanent membership on the United Nations Security Council. In this connection it is to be noted that at the Second Moscow Conference (December 1945) it was agreed that the peace conference for the satellite treaties would “consist of the five members of the Council of Foreign Ministers”, including China, together with the other United Nations that waged war actively against European enemy states. [Footnote in the original.]
16. Foreign Relations, 1942, vol. i, p. 25.
17. Quoted here is the introduction to the Declaration of Four Nations on General Security, signed October 30, 1943, at Moscow. For text see Foreign Relations 1943, vol. i, p. 755.
18. Foreign Relations, The Conferences at Cairo and Tehran, 1943, p. 640.
19. Foreign Relations, The Conferences at Malta and Yalta, 1945, pp. 968, 975.
20. August 25, p. 498.