Foreign Relations of the United States, 1951, Asia and the Pacific, Volume VI, Part 1

611.94/8–2251

The Acting Secretary of Defense (Lovett) to the Secretary of State

secret

Washington, 22 August 1951.

Dear Mr. Secretary: I am forwarding for your information and consideration a memorandum of 8 August 1951 from the Joint Chiefs of Staff which contains their views on the proposed Administrative Agreement to implement the US–Japan Security Treaty, and incloses a completely revised draft of this Agreement.¹

Because of the important legal considerations involved, the draft Agreement has been carefully reviewed by the Defense Department’s Office of General Counsel. They have advised me that in its present form the draft Agreement presents several legal questions which will need to be resolved between our two Departments.

Faithfully yours,

Robert A. Lovett

[Enclosure]²

Memorandum for the Secretary of Defense

secret

Washington, 8 August 1951.

Subject: Documents Relating to the Japanese Peace Treaty.

1. By memorandum from the Office of the Secretary of Defense dated 17 February 1951,³ the Joint Chiefs of Staff received a draft of an “Administrative Agreement between the United States of America and Japan to Implement the Provisions of the Agreement They Have Entered into for Collective Defense” which had been prepared by the Dulles Mission to Japan.⁴ There is enclosed herewith a recommended revision of that draft administrative agreement. The comments of the Joint Chiefs of Staff on this draft are so extensive that a complete revision of the administrative agreement appears appropriate. Those clauses which represent changes over the previous draft, and the new material which has been included, are based upon lengthy study among the Services as well as upon consultations with the Commander in Chief, Far East (CINCFE).

2. An extensively revised Addendum is also included.⁵ This Addendum covers only in general terms the categories of facilities and services which Japan will be expected to furnish. It is planned to formulate detailed lists of specific facilities and areas to be retained by United States Forces (future Annex “A” to the administrative agreement), and of specific facilities and services to be furnished by Japan at its expense (future Annex “B” to the administrative agreement), for eventual attachment to the basic administrative agreement as annexes. These voluminous details are not yet finalized, but it is hoped that they will be received from CINCFE by 1 October 1951.

3. A new paragraph on jurisdictional matters has been inserted in the administrative agreement (paragraph 7, Chapter I, Conditions for Garrison of Troops). The terms of this article provide, among other things, that there should be no Japanese criminal jurisdiction over United States armed forces and civilian employees and dependents. In order to secure to the commanding officers of the United States forces powers necessary for the effective accomplishment of their respective military missions and to preserve the morale of their members in Japan where the standards and system of justice are not familiar and do not accord with those recognized in the United States as inherent to its citizens, it is considered essential that the U.S. armed forces exercise to the fullest extent possible exclusive jurisdiction over their members.⁶ An agreement with Japan along the lines of the NATO agreement⁷ is not only inappropriate, but it would be unacceptable from the military point of view. Under the conditions which will exist in Japan, it is necessary that the United States have in time of peace those jurisdictional rights which it requires in war. The Joint Chiefs of Staff feel that the administrative agreement with Japan should grant to the United States such jurisdictional rights. Accordingly, they recommend the inclusion of a paragraph granting such rights, substantially along the lines as recommended in paragraph 7 of the enclosed revised draft.⁸

4. The terms of the original draft of Chapter IV, Collective Defense Measures, provided for the appointment of a Supreme Commander (designated by the United States) over all United States and Japanese forces in the event of hostilities or imminent threat thereof, “after consultation with the Japanese Government.” The Joint Chiefs of Staff are concerned lest the Japanese Government, by reason of a difference of opinion with the United States Government, delay or even attempt to veto any such appointment in the eventuality of a situation which the United States might consider as warranting the establishment of a unified command. Accordingly, the Joint Chiefs of Staff particularly recommend revision of Chapter IV substantially along the lines of the enclosed revised draft.⁹

5. In light of the substantive matters covered by the administrative agreement, which would govern the disposition of armed forces of the United States in and about Japan, and in light of the importance of those matters to the security interests of the United States, the Joint Chiefs of Staff strongly recommend that the administrative agreement, with annexes and addenda as required, be signed and come into force concurrently with the Japanese Peace Treaty and with the bilateral United States–Japan Security Treaty from which the administrative arrangements flow. The proposed detailed annexes to the agreement, referred to in paragraph 2 above, need not be signed at the same time, but should come into force at the same time as the other agreements, particularly the Treaty of Peace with Japan.

For the Joint Chiefs of Staff:

Omar N. Bradley

Chairman Joint Chiefs of Staff

1. Not found attached. Text of the draft referred to here was apparently identical to that of an undated draft enclosed with a memorandum of October 3 from Mr. Hemmendinger to Mr. McClurkin, neither printed. (611.94/8–2251)
2. Apparently the source text attached here, and bearing the date August 8, was substituted at a later date. (See footnote 4, p. 1286.) Department of Defense records indicate that in the JCS memorandum as despatched on August 8, paragraph 3 read as indicated in footnote 6, below.
3. Not printed.
4. See Annex iv to the letter of February 10, from Mr. Dulles to Secretary Acheson, p. 876.
5. Text, not printed, enclosed with the document cited in footnote 1 above.
6. In the JCS memorandum as originally sent to the Secretary of Defense on August 8, and apparently as sent to the Department on August 22, the following sentence was between “members.” and “An”: “In this connection, the Joint Chiefs of Staff feel that the position of Japan, as a conquered nation and as an oriental nation is not analogous to that of the North Atlantic Treaty Organization (NATO) nations with which agreements have been negotiated on jurisdictional questions. Further, the reasons for, and conditions of maintaining United States garrison forces in Japan are not wholly similar to those governing the stationing of United States forces in Europe.” (Department of Defense files)
7. For text of the agreement between the parties to the North Atlantic Treaty regarding the status of their forces, signed at London, June 19, 1951, see TIAS No. 2846 or 4 UST (pt. 2) 1792.

8. Text of chapter i, paragraph 7 of the draft cited in footnote 1 is as follows:

   “7. (1) It is the duty of members of the United States armed forces, civilian personnel accompanying the United States armed forces including families, who are subject to United States Military Law, to respect the laws of Japan. However, all such personnel (except indigenous personnel) shall be immune from the criminal jurisdiction of Japan; provided that in particular cases the United States may waive such immunity. Such persons shall also be immune from the civil jurisdiction of Japan in cases arising out of incidents occurring as a result of the performance of their official duties.

   (2) The United States shall have exclusive control over all areas in Japan while utilized by the United States forces. While these areas are so utilized, the United States authorities shall have the exclusive right to arrest and take into custody persons therein; however, should persons who are subject to the jurisdiction of Japan and not the jurisdiction of the United States be arrested in such areas, the United States authorities shall remand them promptly to the proper Japanese authorities. Outside of areas controlled by the United States, Japanese authorities shall assist in the arrest and detention of persons who are under the jurisdiction of and are sought by the United States, and shall remand promptly to the United States authorities all such persons so arrested or detained.

   (3) The Government of Japan will make available to the United States authorities such Japanese nationals or other persons who are subject to the jurisdiction of Japan who may be required by the United States authorities as witnesses, and will assist the United States authorities as they may require in carrying out investigations into offenses and the trial of offenders, and in the collection of evidence to include the seizure of and handing over to the United States authorities objects related thereto.”

9. Text of chapter iv in the draft cited in footnote 1 is as follows:

   • “1. In the event of hostilities or when in the opinion of either party hostilities are imminently threatened in the Japan area, all United States forces in the Japan area, and all Japanese organizations, excepting local police, having military potential, shall, at the option of the United States, be placed under the unified command of a Supreme Commander designated by the United States Government.
   • “2. In the event of hostilities, or imminently threatened hostilities, the Supreme Commander of all forces in Japan, designated in accordance with paragraph 1 above, shall have the authority to use such areas, installations and facilities in the Japan area and to make such strategic and tactical disposition of military forces in that area as he may deem necessary. In taking such actions, the Supreme Commander shall advise appropriate military authorities of the Japanese Government.
   • “3. In locating the aforesaid areas for strategic and tactical disposition, the fullest consideration consistent with military necessity shall be given to the welfare, health and economic needs of the local population.”