694.001/1–18501
Memorandum by the Legal Adviser (Fisher) to the Secretary of State
Subject: Courses of action with respect to Japanese peace settlement
The present memorandum is directed toward the basic legal question raised by Mr. Butterworth’s memorandum to you on this subject dated yesterday.
For the United States to follow either course I or course II, as set forth in Mr. Butterworth’s memorandum, without the agreement of China and the USSR would involve substantial departures from the occupation arrangements which have been set up under such international agreements as the Potsdam Proclamation, the Instrument of Surrender, and the Moscow Agreement of 1945.2 Such departures would evoke charges by China and the Soviet Union that the United States and its partners were engaging in serious violations of those international agreements. From the legal point of view, any separate peace treaty or agreement to restore normal political and economic relations with Japan, concluded without the agreement of China and the USSR, would have to be justified on the ground of changed circumstances, or, on what seems to me to be a stronger position, that the occupation objectives of the Potsdam Proclamation having been substantially satisfied, all countries party to the surrender are obligated to take steps to terminate the occupation. A more detailed exposition of the latter approach is attached.3 Either of these claims made unilaterally by one Power or by a group of interested Powers can only be partially effective in countering charges of violation of international agreements such as the charges which could be anticipated from the Chinese Communists and the Soviet Government.
[Page 1130]In any case where the United States intends to follow a course of action on either of these theories, it is important from the legal point of view that the course be pursued under the umbrella of the strongest possible international sanction. Since consideration of the legal questions by the International Court of Justice or similar tribunal is out of the question, clearly a resolution of the United Nations General Assembly as the most objective forum available and the forum having the broadest representation would provide the soundest basis from the legal point of view on which to proceed with the Japanese peace settlement if the USSR and China will not take part.
Such a procedure, with a view to obtaining the sanction of the United Nations General Assembly, would lay the best foundation for further action, whether that action is to conclude a full treaty of peace with Japan without the participation of China and the USSR, or to make an agreement for the restoration of normal political and economic relations with Japan without the participation of China and the USSR. In choosing between the path of the peace treaty and that of the political and economic agreement, it should be borne in mind that the conclusion of a treaty of peace would make a clean break with the existing occupation arrangements. To go forward with the Japanese peace settlement by making a political and economic agreement with Japan would entail a devious and obscure course of action beset with embarrassing anomalies. For example, such a political and economic agreement as envisaged in course I of Mr. Butterworth’s memorandum would not terminate the existing state of war between the signatories and Japan. Under such circumstances, the exchange of ambassadors between the United States and Japan would be a curious feature of the relationships between the two countries. While the difficulties of such a situation might be overcome one by one on a de facto basis by the United States, it may be that other countries, in particular the United Kingdom, would not find it possible to engage in normal political and economic relations with Japan while a state of war continued.
The deliberate blurring of the line between war and peace contemplated by course I might have the advantage of enabling certain Far Eastern countries to appear to minimize the choice which they are making, but it might also lay the United States open to the charge of disingenuousness. An agreement of the sort contemplated in course I would purport to leave undisturbed the occupation arrangements with respect to security controls over Japan; the agreement would contain a specific provision to that effect. The intention would be that the Western Allies should continue to maintain forces and bases in Japan, that SCAP, the Allied Council for Japan, and the FEC would continue to exercise the occupation-period functions in the security field. It would be argued by the Allied Powers making the agreement that [Page 1131] the authority for these continued security controls lay in the occupation arrangements and not in the agreement for the restoration of normal political and economic relations with Japan. It would, on the other hand, be argued with considerable force by China and the Soviet Union that the new agreement (boycotted by these two Powers) so fundamentally changed the occupation “regime of control” as to destroy the multi-Power inter-Allied basis for continuing the occupation regime in the security field, thereby violating such agreements as the Moscow Agreement of 1945. In answering such a charge the United States, if it adopted course I, would lose much of the strength of its position that it was carrying out its commitment, made in the Potsdam Proclamation and accepted in the Instrument of Surrender, to terminate the occupation when the objectives of the Potsdam Proclamation have been met.
- This paper is filed with Mr. Butterworth’s memorandum to the Secretary of January 18, p. 1117.↩
- Refers to the Communiqué of the Moscow Conference of 1945.↩
- Not printed. Entitled “Legal Situation Resulting from Treaty of Peace with Japan by U.S. and Friendly Allies Involving U.S. Bases in Japan, to Which the U.S.S.R. Is Not a Party,” this attachment was originally dated December 8, 1949.↩