740.00119 PW/8–2145
Memorandum by Mr. Edward G. Miller, Jr., Special Assistant to the Under Secretary of State (Acheson), to Mr. Benjamin V. Cohen, Special Assistant to the Secretary of State27
On examining the documents in connection with the surrender of Japan, I do not find any qualification or reservation of such a nature as to prevent the proposed action in taking over Japanese legations in neutral countries.
The Potsdam Proclamation to Japan, in paragraph 13, calls upon “the government of Japan to proclaim now the unconditional surrender of all Japanese armed forces”. This is the only paragraph which in any way approximates a legal characterization of the action required on the part of Japan or the rights of the victorious powers in pursuance thereof.
Paragraph 5 begins by stating that “Following are our terms”. There are outlined in paragraphs 6 to 12 inclusive various provisions to be carried out by Japan subsequent to the surrender. These for the most part are by way of definition of the consequences of the surrender, such as the occupation of points in Japanese territory (paragraph 7); the limitation of Japanese sovereignty to the home islands (paragraph 8); and the extension of certain civil liberties within Japan (paragraph 10—last two sentences). The other provisions of this paragraph might be construed to impose obligations upon the Allies to Japan or to qualify in certain particulars the rights of the Allies consequent upon the surrender of Japan. These provisions include the permission of Japanese military forces to return to their homes and lead peaceful lives (paragraph 9); the statement of intention that the Japanese shall not be enslaved as a race or destroyed as a nation (paragraph 10); the permission that the Japanese shall be permitted to maintain certain industries and to participate eventually in world trade (paragraph 11); and the statement that the Allied forces will eventually be withdrawn from Japan (paragraph 12). These provisions do not appear to constitute conditions of such a [Page 682] nature as to result in altering the fundamental character of the action of surrender by Japan. In addition paragraph 7 provides that “points in Japanese territory to be designated by the Allies shall be occupied to secure the achievement of the basic objectives” of the Proclamation. This would seem to be consistent only with an unconditional surrender even though the statement contains the implication that a selective process will be followed in connection with any occupation territory.
It seems to me therefore that the Potsdam Declaration is a definition in broadest terms of proposed surrender terms and not an invitation to a negotiated peace. The only possible difficulty with this theory in my opinion—so far as concerns the original declaration—is the provision in paragraph 13 that the Allies call upon the government of Japan to proclaim the surrender of Japanese armed forces. This might mean that we will receive the surrender only of the armed forces—and not of the government—of Japan and therefore that the rights of the government remain unimpaired. Consequently any action of the type we wish to take with respect to Japanese property in neutral territory could be taken only with the authorization of the Japanese government. I am not sufficiently familiar with international or military law to appraise the significance of this wording.
However, it seems to me that this particular point of construction of the Potsdam Declaration is rendered immaterial by the subsequent exchange of notes between the governments. On August 10 the Japanese government stated that they were ready to “accept the terms enumerated” in the Potsdam Declaration “with the understanding that said declaration does not comprise any demand which prejudices the prerogatives of His Majesty as a Sovereign Ruler”. This interpretation was in effect rejected by the reply of the four powers of August 11 which stated that “from the moment of surrender the authority of the Emperor and the Japanese government to rule the state shall be subject to the Supreme Commander of the Allied powers.…” This means in effect that the Supreme Commander has at any time the right to dissolve or take such other action as he may wish with respect to the present Japanese government. It means not only that the Supreme Commander can require the Japanese government to issue orders pursuant to his direction, but it expressly places the authority of the Japanese government to remain in power subject to the control of the Supreme Commander. This is exactly the situation that would prevail in the event of an unconditional surrender since there would be no more complete condition of defeat or surrender than this. Therefore all of the consequences of unconditional surrender would appear to follow (including our right to take Japanese government property in neutral territory without going [Page 683] through the formality of getting an order from the Japanese government); subject at the very most to the understanding that we would comply with the specifications and general provisions of the Potsdam Declaration such as permitting Japanese soldiers to return to their homes, etc.
It is true that the Japanese note of August 14 does not expressly accept the terms of our reply of August 11, but this seems to me unimportant, particularly in view of the explicit reference to the August 11 note in the Japanese reply.
I attach for your information full sets of these papers.
- Notation by Mr. Cohen: “This has been discussed with Mr. Hackworth who generally agrees. B.V.C.” Green H. Hackworth was Legal Adviser, Department of State.↩