794.0221/1–1751

The Assistant Secretary of State for Far Eastern Affairs ( Rusk ) to the Special Assistant for Occupied Areas in the Office of the Secretary of the Army ( Magruder )

top secret

Dear Carter: Thank you for your letter of December 20, 1950, enclosing a revised draft United States–Japan bilateral security agreement.1 I am happy to note that this draft embodies most of the suggestions offered in my letter of December 15 [13].2 There are only a few remaining points which I would like to bring to your attention, noted in the enclosed memorandum. These points have been gone over with Col. Babcock and Mr. Murchison and are believed to be acceptable to them.

In regard to your request for a revision of the Department’s Draft No. 4 of the treaty of peace,3 I understand that you are now in possession of the latest treaty documents.

Sincerely yours,

Dean Rusk
[Enclosure]

Memorandum

Page 1, Preamble—It is believed that the State Department’s previously suggested Preamble is to be preferred to that in the draft agreement, even with the changes therein. If the State draft as a whole is unacceptable, it is suggested that the following paragraph from that draft, originally appearing in the agreement concluded with Great Britain in 1941 regarding leased naval and air bases, be inserted in the revised Defense Department draft as a new fourth paragraph:

“And desiring that this Agreement shall be fulfilled in a spirit of good neighbourliness between the Government of the United States of America and the Government of Japan, and that the details of its practical application shall be arranged by friendly cooperation;”4

[Page 802]

It will be necessary if the second paragraph of the Preamble and paragraph 1 are to be consistent with the penultimate paragraph of the chapter on security in the peace treaty that these paragraphs be revised to provide that a superseding security arrangement must be acceptable to all nations contributing to the security forces in Japan, not, necessarily, to the United States alone.5

Page 2 paragraph 5—It is assumed that the reference to “security forces of the United States and those of other signatories of the Treaty of Peace” is not intended to include Japan, though Japan will of course be a signatory. It is suggested that the word “Allied” be inserted before “signatories”.6

Page 2, paragraphs 6 and 7—In the general reorganization in Chapters II and III it would seem more logical to place paragraphs 6 and 7, dealing with the initial, peacetime disposition of our forces, ahead of paragraphs 2, 3, 4 and 5, dealing, except paragraph 5, with rights of disposition and maneuver in time of hostilities or threatened hostilities. Paragraph 8, dealing with the return of property used by our forces and claims, would appear later in connection with economic and housekeeping problems.7

Page 3, paragraph 8, second sentence—Reading of this sentence seems to indicate the need for substituting “such” for “private” and deleting “both real and personal” in the eighth line from the end.7

Page 5, paragraph 3—It is believed that the jurisdiction question can be more satisfactorily dealt with solely on the basis of the categories of persons subject to U.S. Service Courts and authorities, without reference to particular areas in Japan under U.S. control. The following draft is accordingly proposed in place of the present paragraph 13:7

  • “13. The Service Courts and authorities of the Government of the United States shall have exclusive jurisdiction over any offenses which may be committed in Japan by members of the United States security forces or by civilian personnel attached to such forces and subject to military law. If cases arise in which for special reasons the Service authorities of the Government of the United States may prefer not to exercise such jurisdiction the Government of Japan upon being so notified shall be free to exercise jurisdiction.”7
[Page 803]

Addition of the following might increase the acceptability of the provision to the Japanese:

“Assurance is given that the Service courts and authorities of the United States forces in Japan will be willing and able to try and on conviction to punish all criminal offenses which members of the United States forces may be alleged on sufficient evidence to have committed in Japan, and that the United States authorities will be willing in principle to investigate and deal appropriately with any alleged criminal offenses committed by such forces in Japan which may be brought to their attention by the competent authorities of Japan or which the United States authorities may find have taken place.”8

Page 7, paragraph 18—It is suggested that the words “in accordance with criteria or arrangements heretofore followed and” be omitted. This phrase would seem likely to lead to difficulties in connection with a contribution of Japanese forces, and to be unnecessary for other forces while the condition that the contribution must be “after agreement with the United States Government” remains.9

Page 7, paragraph 19—It is noted that the phrase “as determined by the United States”, giving the United States the right to say when hostilities threaten and the U.S. commander should therefore assume command of all forces in Japan, has been deleted. It would seem important that this right be clearly lodged in the United States, and that the phrase should accordingly be retained.

The words “prior to the adoption by the United Nations or otherwise of a security arrangement hereinbefore described,” included in the present draft, seem unnecessary, considering that paragraph 1 on page 2 prescribes the effective period of the whole agreement.

The previous draft spoke of placing “all armed forces” in Japan under the commander of the U.S. security forces in time of war. This has been rephrased to read: “… all allied or associated forces in Japan, the National Police Reserve, or any other Japanese forces which may be lawfully utilized by the Japanese Government for the defense of Japan …” The former, short phrase would seem adequate, and would avoid the question of whether the National Police Reserve is at present expressly authorized by law for use against external aggression.10

  1. For texts, see Foreign Relations, 1950, vol. vi, p. 1373.
  2. Ibid., p. 1367.
  3. Presumably the draft of September 11, 1950, ibid., p. 1297
  4. This change was made in draft No. 4 of a United States–Japan Bilateral Agreement on Security, prepared in the Office for Occupied Areas, Department of the Army, January 18, 1951, not printed. (Lot 56D527: Office of Northeast Asian Affairs: Japanese Peace Treaty Files)
  5. The suggested change was made in the Preamble of the draft cited in footnote 4 above, but not in its numbered paragraph 1.
  6. The mentioned clause, as rewritten in the draft cited in footnote 4 above, read: “… security forces of the United States and those of other Allied and Associted powers contributing forces with the consent of the United States government.…”
  7. The change suggested was not made in the draft cited in footnote 4, above.
  8. The change suggested was not made in the draft cited in footnote 4, above.
  9. The change suggested was not made in the draft cited in footnote 4, above.
  10. The change suggested was not made in the draft cited in footnote 4, above.
  11. The change suggested was not made in the draft cited in footnote 4, above.
  12. This change was made in the draft cited in footnote 4 above.
  13. In the draft cited in footnote 4 above, numbered paragraph 19 of Chapter VIII reads as follows: “In the event of hostilities or imminently threatened hostilities in the Japan area, as determined by the United States government, all allied or associated forces in Japan, the National Police Reserve, and all other Japanese armed forces, shall be placed under the unified command of a Supreme Commander designated by the United States government after consultation with the governments committing forces to the defense of Japan.”