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

711.11B/6–1446

Memorandum Prepared in the Department of State⁴²

undated

secret

Outline of Course of Informal Discussions With Philippine Representatives Concerning the Provision on Jurisdiction To Be Included in the Agreement Concerning Military Bases in the Philippines, Washington, May 1946

The first draft informally handed by representatives of this Government to the Philippine representatives provided in Article XIV for the exercise of exclusive jurisdiction by this Government over all offenses committed by American military and civilian personnel, both within and without the bases.

The Philippine redraft of the draft agreement—dated May 14, 1946—contained a provision following exactly, except for essential verbal substitutions, Article IV of the British Base Agreement (Executive Agreement Series no. 235). This provision was not acceptable to the War and Navy Departments on the ground that it did not accord wide enough jurisdiction to this country. This provision was felt to be undesirable also by officials of the State Department because the provision in the British Base Agreement on which it was modeled had not worked well in practice and is to be revised. The language has been found to be ambiguous; the provision contemplated the creation of civil courts by this country, which has not been and will not be done; and it also provided concurrent jurisdiction which, it is felt, should be avoided whenever possible.

In an effort to further the progress of the discussions a member of the Legal Adviser’s Office prepared a draft provision providing that in time of war or national emergency this Government should have exclusive jurisdiction over American military and civilian personnel, both within and without the bases; at all other times this Government should have jurisdiction only over offenses committed within the bases, and such jurisdiction would be exclusive. This draft was prepared as a working paper and a basis of discussion. It was acceptable in principle to the Philippine authorities and to the representatives of this Department but not to the representatives of the War and Navy Departments.

At the last meeting, the War and Navy Departments proposed that the provision should be based on Article IV of the British Base Agreement with certain changes made to avoid reference to military offenses and civil courts. This suggestion was not acceptable to the Philippine representatives.

The provision included in the draft agreement to be presented to the Philippine authorities as the basis for formal negotiations follows substantially this last suggestion with the additional change of deletion of reference to primary jurisdiction.

42. Copy transmitted by the Acting Secretary of State to Mr. McNutt in a letter dated June 14, not printed; the draft agreement on military bases was also included, not printed.