740.0011 PW (Peace)/8–747
Memorandum by the Legal Adviser (Gross) to the Under Secretary of State (Lovett)
Legal Situation Resulting From a Separate Peace
The present memorandum is submitted in accordance with Mr. Fahy’s memorandum to you dated August 7, 1947.
General Considerations
A peace settlement with Japan in which less than all of the states at war with Japan participated would leave the non-participating states still at war with Japan; such a settlement would result in peace only between Japan and the members of the United Nations which participated in the settlement.
A non-participating state would not be bound by the provisions of the peace and would be at liberty to make international arrangements disregarding the peace provisions. In March 1918 the Russian Soviet Government concluded a separate peace with Germany at Brest-Litovsk. In Articles 116 and 292 of the Treaty of Versailles the Allied and Associated Powers provided acceptance and recognition by Germany that the Treaty of Brest-Litovsk was abrogated. Thus the Allied and Associated Powers of World War I considered themselves in no way bound by that Treaty,* and felt free in framing their own settlement to disregard entirely Russia’s separate peace with Germany.
Similarly, the United States which, although a signatory, did not by ratification become a party to the Treaty of Versailles, did not consider itself bound by provisions of that Treaty, such as those contained in Articles 1 through 26 establishing the League of Nations,†
In the case of a peace with Japan in which the Soviet Union did not participate, the Soviet Government would not be bound by the settlement provisions, regarding vital matters such as the territorial limits of Japan, an interim system of Allied controls over Japan, or reparations. The Soviet Government would not of necessity recognize the [Page 499] Japanese Government with which other members of the United Nations concluded peace; it might prefer to withhold recognition and make international arrangements with a later Japanese regime.
The USSR and Other United Nations
If it is concluded, then, that the USSR would not be bound by a peace with Japan made by other members of the United Nations without Soviet participation, it remains to be considered what rights and duties under international law would then govern the relations between the USSR and other members of the United Nations with respect to Japan.
In the absence of a treaty of peace, when war terminates through the simple cessation of hostilities, it is generally held that the status quo post bellum becomes silently recognized by the former belligerents, and is the basis of future relations between them. See II Oppenheim, International Law (6th ed. 1944) pp. 465–466. If this were the case between Japan and the United States, for example, it could be inferred that other states would be bound to recognize this status quo post bellum, between Japan and the United States, in the absence of some inter-Allied agreement to the contrary. Since the USSR would not be bound by a Japanese peace treaty to which it was not a party, it could be argued by analogy that the USSR would be required to recognize the status quo post bellum, between Japan and the United States, unless this status conflicted with the results provided for in existing inter-Allied agreements.
A state that has been under military occupation must under international law recognize the legitimate acts, connected with the occupied territory and with individuals and property there, which have been done by the former occupant. See II Oppenheim, op. cit. supra, pp. 482–483. Similarly, it could be argued that the USSR, in the event of a separate peace with Japan, would be required to recognize the validity of the military occupation of Japan, and of all legitimate acts done in that period, though the Soviet Union should not be a party to the treaty of peace.
In any discussion of the relations between the USSR and other members of the United Nations, in the event of a separate peace with Japan, account must be taken of the post-peace status of the Supreme Commander for the Allied Powers, of the Allied Council for Japan, and of the Far Eastern Commission.
SCAP was designated, and his powers fixed, by agreement among the United States, China, Soviet Union, and United Kingdom. The designation of General MacArthur to this office and the grant of powers to him in his capacity as SCAP were without a specified time [Page 500] limit.‡ It might therefore appear that the designation and grant could not be formally revoked or terminated except by agreement among at least the four great Far Eastern powers which established SCAP. However, General MacArthur is an officer in the American Army, and the chain of command from the Allies to SCAP is through the United States Government. Thus, in the event of refusal of one of the four powers to agree to a termination of SCAP, the United States would appear to be able, as a practical matter, unilaterally to end the operations and authority of SCAP at any time through the issuance of orders to General MacArthur. In this connection, however, it should be noted that the terms of reference of the Far Eastern Commission (Article III–3) provide that the United States shall not issue “any directives dealing with fundamental changes … in the regime of control”, without an affirmative decision of the FEC on the question. Issuance of any orders to General MacArthur which would have the effect of ending the operations of SCAP would appear to fall within the scope of this provision. Accordingly, if, in the event the USSR vetoed the termination of SCAP and his operations, the United States acted unilaterally to terminate SCAP, the United States might be thought to breach the Moscow agreement.
An argument may be made, however, that the regime of control embodied in the Moscow agreement of December 1945 was not to last indefinitely and to continue to bind the Allies into the remote future. Clearly this regime was devised and intended to last only until peace. If, after exhaustive but futile efforts to make a just peace with the collaboration and consent of all the United Nations at war with Japan, the United States and other powers were justified in concluding a Japanese peace settlement without participation by the USSR, it might be argued that the agreements on control machinery for Japan during the occupation period would lapse with the conclusion of such a peace. This argument would warrant the United States, in such circumstances,—acting alone or with other of the Allies—in terminating the now-existing regime of control in Japan without the assent of the USSR.
The Allied Council for Japan is part of the regime of control, and therefore under the terms of the second Moscow agreement could be formally terminated only by affirmative agreement in the Far Eastern Commission. But the Council acts solely as an adviser to SCAP. Absent SCAP, the Council would have no function to perform. Soviet disagreement on the abolition of the Council would not be of practical [Page 501] importance, since the Council’s continuing existence would be nugatory. The Council would even be without a chairman following the withdrawal of SCAP from Japan.
The Far Eastern Commission, by Article VII of its terms of reference, shall provide for its own dissolution on the vote of a majority including the representatives of the Far Eastern Big Four. So far as the express provisions of the terms of reference control, this is the only way in which the Commission could be formally terminated. The USSR could by veto block such a resolution to terminate. If in this manner the FEC remained in existence following the conclusion of a separate peace, clearly the United States alone or with other powers could prevent the taking of any further action by the Commission. By analogy to the argument made with respect to SCAP, however, the agreement on the FEC might also be held to lapse with the conclusion of peace. Clearly the policies, principles, and standards formulated by the FEC to enable the fulfillment by Japan of its obligations under the terms of surrender cannot have been expected to survive the conclusion of a treaty of peace, except insofar as incorporated therein. If the authority of SCAP be considered to terminate with the conclusion of peace, by the same token the authority of the FEC, which was to be enforced through directives issued to SCAP, would also lapse.
The USSR and Japan
If the USSR were not a party to the Japanese treaty, and did not make an international arrangement of its own with Japan to end the state of war between the two countries, the question would arise of the relations between the Soviet Union and Japan. A state of war may terminate following a simple cessation of hostilities, without a peace treaty, without subjugation, and without any formal declaration of either state. See II Oppenheim, op. cit. supra, p. 465; Hyde International Law (1945) p. 2385; Hall, International Law (8th ed. 1924) p. 679. New relations stem from such a termination, even though it is extremely difficult to ascertain exactly when the war ended. See Hyde, op. cit. supra, pp. 2386–87, note 2; VI Hackworth, Digest of International Law (1943) pp. 428–36.
The Soviet Union would be entitled to preserve the status quo post helium vis-à-vis Japan, so far as consistent with existing inter-Allied agreements. For example, the USSR could retain possession of the Kuril Islands and of Karafuto (southern Sakhalin). The Soviet Union would not, however, be entitled to any reparations from Japan, apart from the limited class provided for in Article 3 of Hague Convention IV (1907) cf. Oppenheim, International Law (6th ed. 1944) pp. 462–463, 476–477.
[Page 502]Other questions present more difficulty and cannot be clearly answered. Among these are: the question of repatriation of enemy prisoners of war held by the USSR following termination of war through simple cessation of hostilities; the question of the revival or extinguishment of bilateral treaties between Japan and the Soviet Union.
Whether or not the USSR could derive any rights under a peace treaty with Japan if the Soviet Government did not become a party would be governed by the treaty’s own provisions. The draft treaty prepared in the Department and circulated early in August contains a provision excluding from the treaty’s benefits any state entitled to sign or adhere which does not ratify the treaty.
- It is to be noted that the Treaty of Brest-Litovsk was concluded while hostilities continued between Germany and the Allies in the West, and that the Russian Soviet Government denounced the Treaty two days after the Armistice of November 11, 1918. See II Oppenheim, International Law (6th ed., 1944) p. 474, note 1. [Footnote in the original.]↩
- The United States Congress, however, in passing the joint resolution of July 2, 1921, declaring the war with Germany ended, stipulated a reservation in favor of the United States of all rights to which it could become entitled under the Treaty of Versailles. [Footnote in the original.]↩
- The nature of the designation of General MacArthur individually to be Supreme Commander, with certain powers, implied of necessity a termination of the designation and grant in the event of the death, resignation, or permanent incapacity of MacArthur. [Footnote in the original.]↩