Foreign Relations of the United States, 1946, The Far East, Volume VIII

811.24596/6–646

Memorandum by the Director of the Office of Far Eastern Affairs (Vincent) to the Secretary of State³³

secret

[Washington,] June 6, 1946.

At present two of the three issues remaining for adjustment within this Government in connection with the draft Philippine bases agreement are well on the way to solution. These two issues relate to the possible joint use of the bases and to a possible reduction in number and size of the bases retained. Efforts to adjust the third issue—jurisdiction over American military personnel outside the bases—have so far failed to result in a meeting of views between the State Department on the one hand and the War and Navy Departments on the other. Settlement of this third issue is a matter of urgency because the War Department feels that it is essential that the agreement be signed on July 4, and therefore that negotiations with the Philippine authorities should begin at least by June 15. Comment on the three issues is given below.

1.Joint Use of Bases A provision which would permit the armed forces of the Philippines to serve on United States bases, and vice versa, whenever the armed forces of both countries agree that such use would be beneficial has been worked out in consultation between the State, War and Navy Departments. (Copy attached, Annex A)³⁴ There remains only for settlement the question whether the bases should be made available to the Security Council with the consent of the Philippines alone or with the consent of the Philippines and the United States. Although the War Department prefers the second alternative, it is believed that it will accept the first alternative.

2.Reduction in Number and Size of the Bases The question of a possible reduction in the number of bases retained by the United States (at present 71) and in their size (one of the bases now covers 150,000 acres) has been referred to General MacArthur for his opinion. This issue can probably be quickly settled after his views have been received.

3.Jurisdiction over American Military and Civilian Personnel outside the Bases There is general agreement that this Government should have exclusive jurisdiction over all offenses committed by American military or civilian personnel within the bases.

The War and Navy Departments hold that it is essential that even in time of peace the United States also exercise jurisdiction over offenses committed by such personnel outside the bases. They assert that this position is justifiable under international practice, and they also claim—apparently without strong conviction—that the exercise of such jurisdiction is necessary to their military program and position in the Islands.

In the recent discussions, Roxas took strong exception to granting to this Government jurisdiction over offenses committed outside the bases, in time of peace.

Officers of this Department have held that this Government should not force the Philippines to grant this Government such extensive jurisdiction in time of peace. We have suggested that provision be made according to this Government exclusive jurisdiction over any offenses committed by American military or civilian personnel in the Islands in time of war or national emergency and according at other times exclusive jurisdiction over all offenses committed by such personnel within the bases. (Copy attached, Annex B)³⁵

The draft agreement would involve some 50,000 American personnel and would run for 99 years. Philippine courts have functioned to the satisfaction of American authorities, military as well as civilian.

It is felt that under these circumstances a provision such as that desired by the War and Navy Departments would be regarded not merely by the Filipino people but by other friendly Far Eastern peoples as a revival of extraterritoriality; that it would create popular opposition to the bases agreement in the Philippines, making approval of that agreement difficult in the Philippine Congress; and that this country’s good will among Far Eastern peoples would suffer without commensurate advantage to this country. The Philippine agreement would be of little worth as a precedent in attempting to obtain similar grants from stronger countries; and it is believed to be highly unlikely that British, Australian or other authorities will be willing to grant to the United States comparable jurisdiction throughout a prolonged period of peace in any future agreements that may be reached.

The War and Navy Departments on June 5 prepared a draft in accordance with their position (Annex C).³⁵ A brief statement of the main reasons why we regard this draft as unsatisfactory has been informally prepared by our Legal Adviser’s Office and is attached to the draft.

J[ohn] C[arter] V[incent]

[Annex]

[Washington,] June 5, 1946.

Objections to Paragraph 1 of Army–Navy Redraft of Article XIV (as suggested by Le)

1. The paragraph provides for concurrent jurisdiction which might result in cases of double jeopardy and which should be avoided whenever practicable.

2. The phrase “including … treason … security … such bases” is meaningless in its present context. This language was included in the British agreement because that agreement contemplated the creation of United States civil courts in the British territories concerned in which the offenses described would be tried. Such courts were in practice never established, and it would be clearly undesirable to establish such courts in the Philippines.

3. The paragraph in effect would give the United States primary jurisdiction over all offenses committed by members of the United States armed forces and civilian personnel outside the bases. It is believed that this Government should not ask so extensive a grant of jurisdiction from the Philippine authorities.

4. The paragraph is a poor rewording of Article IV of the British Base Agreement which has proved unsatisfactory in practice and which is to be revised.

[For the Department’s statement on June 7 regarding ceremonies to celebrate Philippine independence at Manila, July 4, and invitations issued to attend, see Department of State Bulletin, June 16, 1946, page 1051.]

33. Notation by the Under Secretary of State to Mr. Vincent: “JCV. The Secretary approved this memorandum & told me to hold the meeting. DA.” The meeting was scheduled for June 7 with War and Navy Department representatives.
34. Not printed.
35. Not printed.
35. Not printed.