Foreign Relations of the United States, 1952–1954, China and Japan, Volume XIV, Part 1

793.5/11–454

No. 382
Memorandum of Conversation, by the Director of the Office of Chinese Affairs (McConaughy)

top secret

[Washington,] November 4, 1954.

Subject:

• Mutual Defense Treaty—2d Meeting

Participants:

• Dr. George Yeh, Chinese Foreign Minister
• Dr. Wellington Koo, Chinese Ambassador
• Dr. Tan, Minister, Chinese Embassy
• Mr. Robertson, Assistant Secretary for Far Eastern Affairs
• Mr. Phleger, Legal Adviser
• Mr. MacArthur, Counselor
• Mr. McConaughy, Director, Chinese Affairs

The meeting was devoted to textual examination of the Chinese and U.S. treaty drafts.¹

It was agreed that in the preamble the reference to “Pacific Area” would be changed to “west Pacific area”.

In Article II,² Mr. Robertson suggested that the phrase “prevent and counter” preceding “subversive activities” be eliminated. Dr. Yeh agreed.

Dr. Yeh proposed a new Article III, which Dr. Tan read aloud as follows:

“The Parties undertake to strengthen their free institutions and to cooperate with each other in the development of economic progress and social well-being and to further their individual and collective efforts towards these ends.”

Mr. Robertson accepted this, noting that the numbering of other Articles would be changed.

Mr. Robertson said Article IV proposed by the Chinese³ regarding establishment of a continuing “Council” was entirely different from anything in the U.S. version. The U.S. Government did not feel that it could approve a Council arrangement different from that contained in its other Asian treaties. The Chinese proposal appeared to bear some similarity to the NATO arrangement. It was felt that in a bilateral treaty for a formal standing body, provision of this sort was unnecessary.

Dr. Yeh mentioned that we had arranged for a Council with the Philippine Government.

Mr. Robertson pointed out that the Council provision was not contained in the Defense Treaty with the Philippine Government, but was set up by a separate exchange of Notes. Mr. Robertson then read Article IV as proposed by the U.S. (formerly Article III). He thought that the arrangements for consultation did not need to be elaborated in the treaty. This could be done later.

Ambassador Koo asked if we thought it was entirely unnecessary to provide for a Council in the Treaty.

Mr. Robertson said that was correct.

Mr. Phleger said that implementation of a provision to consult could take any form the parties agreed upon.

Dr. Yeh asked why it was felt necessary to strike out specific provision for a Council, composed of the two Foreign Ministers and their military representatives.

Mr. Phleger said that the flexibility of a general provision to consult was preferable. With a flexible provision, any sort of consultative arrangement which seemed desirable could be established.

Ambassador Koo asked why the Chinese suggestion was considered too inflexible.

Mr. Phleger said a requirement for a fixed Council would be too restrictive.

Dr. Yeh said he still could not understand why the Chinese suggestion was found objectionable.

Mr. Phleger said he felt that the U.S. draft covered the requirements.

Dr. Yeh thought that the provisions of the Chinese draft were more explicit.

Mr. Robertson pointed out that the U.S. version did not place any limitation on the right to consult.

Mr. Phleger offered to relay the views of the Chinese representatives to the Secretary.

Dr. Yeh thought the matter was not especially important but he still was not clear as to the reason why we objected to a continuing Council with military advisers.

Mr. Robertson remarked that consultation could be had whenever a threat existed. The U.S. proposal gave complete freedom to consult. There would be no occasion to consult under the treaty unless a question of implementation was involved.

Dr. Yeh said that in principle the territorial integrity of China was continuously violated by the Communists. Continuing consultation was therefore called for.

Mr. Phleger said he was certain the considerations bearing on the need for consultation were very much in the Secretary’s mind.

Dr. Yeh said that he would like to consider the matter as in suspense for the moment and pass on to the next Article.

The wording of Article V was considered. The Chinese draft read as follows:

“Each Party regards that an armed attack in the West Pacific Area on the territories of either of the Parties shall be considered as an attack on both Parties and shall assist the Party so attacked by taking forthwith all the necessary measures, including the use of armed force, to restore and maintain the security of the West Pacific Area. The Parties shall undertake to continue and execute the existing arrangements for the defense of Taiwan and the Pescadores.”

The U.S. draft read as follows:

“Each Party recognizes that an armed attack in the West Pacific Area directed against the territories of either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes.

“Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.”

Mr. Phleger said the Chinese draft went beyond the NATO provision. The matter has been argued out in connection with the Southeast Asian Pact. The Secretary was committed to use the “Monroe Doctrine Formula”, as in the Philippine Treaty.

Mr. Robertson said that the U.S. proposed the term “an external armed attack in the west Pacific on the territories of either of the parties”.

Mr. MacArthur said that there had been consultation on this phraseology with the Senate. The Senate Foreign Relations Committee had spoken very frankly on this. There had been no equivocation. This was the only sort of language the Senate would buy. Mr. Phleger said the matter had been argued for two days in Manila in September. The Secretary himself had worked out this language. The Senators had declared that the formula and the language of all mutual security treaties must be consistent in this respect.

Dr. Yeh asked if the Secretary intended to rely on this language to protect Formosa if the 7th Fleet should be withdrawn. He wondered what the situation would be if the orders to the 7th Fleet should be revoked. The Chinese would like something more permanent than an Executive Order to the 7th Fleet. Something was needed which would enable action to be taken almost instantaneously. Under existing arrangements certain technical arrangements have been reached between the Commander-in-Chief of the U.S. Pacific Fleet and the Chinese military authorities. The proposed language of Article V, with no specific provision for continuing and executing the existing arrangements for the defense of Formosa and the Pescadores, would give the Chinese less protection than the existing 7th Fleet Order. He felt that the proposed language amounted to a retreat. Had he made himself clear?

Mr. Phleger said the Foreign Minister’s point was very clear, but he felt the Foreign Minister had misunderstood. The general language proposed by the U.S. would empower the President to use either the 7th Fleet or anything else he wanted to. We could not write in a treaty provisions which would freeze “existing arrangements”. The President has the constitutional authority to dispose the U.S. Army and Navy. But he needs Senate support to order the Army and Navy to start firing. If we base the article on existence of a threat to the U.S., the President would have the same authority to meet this threat by armed action as he would have in the case of any other threat to U.S. security. At Manila the Secretary had developed this principle in detail. The U.S. language does what the Chinese Government wants, and does it in the most effective way.

Ambassador Koo said that under the present situation by virtue of the Presidential Order to the 7th Fleet, a Communist attack would bring the 7th Fleet into action.

Mr. Phleger said that an order to start a shooting war could be given by the President only if it had constitutional sanction. Under the Constitution action by Congress is required to support Executive action which amounts to war. The President would have a great deal more authority to use U.S. forces in defense of Formosa if the treaty set forth that an armed attack on the treaty area would be dangerous to the peace and safety of the U.S.

Ambassador Koo asked if the Chinese sentence about continuing and executing existing arrangements could not be retained.

Mr. Phleger said that a treaty could not commit the President as to the military means to be used to carry out his constitutional responsibilities. A future Chief Executive cannot be bound to continue previous military dispositions. One President cannot bind his successor as to the discharge of his responsibilities as Commander-in-Chief of the Armed Forces. Only one person can have this responsibility. Even the Congress cannot do this. Congress can withdraw support of the armed forces but it cannot order a Division to be sent to any given place. At London the Secretary had explained this same thing. Neither Congress nor a treaty provision can bind the hands of a President as to the deployment of U.S. forces. It cannot be done by law or treaty.

Ambassador Koo remarked that the U.S. presumably would assume responsibility for aiding in the defense of Formosa and the Pescadores.

Mr. Phleger agreed that this would be so when the treaty was confirmed by the Senate. It would be the constitutional duty of the President to resist any attack defined by treaty as dangerous to the peace and security of the United States.

Dr. Yeh said that the operative clause[s] defining the territories of the parties in the west Pacific area were important and should be considered in conjunction with Article V.

Mr. Phleger said that the Monroe Doctrine formula would provide an effective safeguard for Formosa and the Pescadores. It was the most acceptable formula from every standpoint and was the only one satisfactory to the Senate. The Secretary considered this formula to be superior to any other. The NATO language was subject to misconceptions and could not again be made acceptable to the Senate. The proposed language accomplishes the same purpose.

Dr. Yeh suggested that Article VI be read. It follows:

“For the purposes of Article V, the term ‘territories’ to which this treaty is applicable shall mean in respect of the Republic of China, Taiwan, the Pescadores, and such other territory as may be determined by mutual agreement, and in respect of the United States of America, its island territories in the west Pacific.”⁴

Dr. Yeh said it was important to make it clear that the definition of “territories” and “territorial” in Article VI, refers only to Article V. He did not want to make it appear that Chinese territory was limited to Taiwan and the Pescadores.

Mr. Robertson asked if the definition of the treaty area would not apply also to Article II?

Dr. Yeh said that his Government did not want the treaty area to be limited throughout to Formosa and the Pescadores.

Ambassador Koo said that he preferred “For the purposes of this treaty” to “For the purposes of Article V”.

Mr. Robertson asked what was the difference.

Dr. Yeh said he wanted to make it clear that the Chinese Government was not confined to Formosa and the Pescadores.

Mr. Robertson felt it was just as necessary to define the territory covered by Article II as by Article V.

Dr. Yeh said that he was prepared to accept the reference to Article II in Article VI, but he did not like the UN reference in Article V.

Mr. Phleger pointed out that “territories and territorial” were used only in Articles II and V.

Dr. Yeh said that the change represented an improvement. It was only a technical question.

Ambassador Koo wanted to provide in Article VI that the provisions of Articles II and V may be made applicable to such other territories as may be determined by mutual agreement.

Dr. Yeh suggested the deletion of the UN reference in Article V. He thought that the reference might make it necessary for any incident to run the full UN course, calling for peaceful settlement, a truce, etc. He did not want the problem of Chinese Government rights as to the mainland possibly thrown into the UN.

Mr. Robertson remarked that there was a clear obligation under the Charter for both the U.S. and the Chinese Governments as members of the UN to invoke Security Council action when necessary to restore and maintain international peace and security.

Dr. Yeh thought there was no need specifically to invoke Security Council action in a bilateral treaty.

Mr. MacArthur said that in view of Article [Paragraph] 51 of the Charter, the omission of a UN reference would seem significant. Both parties were bound by an obligation which they could not repudiate. The U.S. position would be difficult if recognition of the UN responsibility was not made explicit in the treaty.

Dr. Yeh said that if his Government had control of its mainland territory, he would have no objection to the UN reference.

Mr. Robertson felt that the Republic of China should not want to put itself in the position of seeming to disregard its obligation as a UN member.

Ambassador Koo thought that full recognition by the parties of their UN obligations was contained in Article VIII, which stipulated that the treaty would not affect in any way the obligations and rights of the parties under the Charter.

Mr. Phleger asked if the Chinese Government wanted it to seem that it did not have the obligations of UN membership.

Dr. Yeh said that deletion of the UN reference from Article V would not make the Chinese Government any less responsible to the UN. The obligations would automatically apply as long as China was a member of the UN.

Mr. Phleger said we expected the ROC “to be in the UN forever”. But he felt that the later reference to the UN in Article VIII was not sufficient. A UN reference should come in at every appropriate place. There was a large group which was opposed to bilateral security treaties on the thesis that they by-passed the UN Charter. Appropriate references to the UN in treaties forestall serious criticisms.

Mr. MacArthur pointed out that as a practical matter, we would report to the UN on measures taken by us in any event, and would seek UN help. There would be strong feelings of criticism if the UN reference were deleted. If we did not report to the UN, it would seem that we would not consider that an aggressive act had taken place.

Dr. Yeh felt that the language of Article VI of the Philippine Treaty covered the UN requirement. For political reasons he would like to have the UN reference in Article V deleted.

Ambassador Koo said that the Chinese representatives would not object to reporting to the UN in fact.

Mr. MacArthur asked why in that case they objected to the inclusion of the UN language in the Article.

Dr. Yeh felt that his Government was not compelled by the UN Charter to report every attack of the sort envisaged in Article V.

Mr. Phleger said Article [Paragraph] 51 of the UN Charter stipulated that measures taken shall be reported to the Security Council.

Dr. Yeh said that pin-prick attacks by the Chinese Communists occurred continuously—up to 17 a week. The Chinese Government had never reported such attacks to the United Nations, or the measures taken in response, and did not consider that it was obligated to do so. The Chinese Government did not want to assume a treaty obligation to make such reports. The Chinese Government could not object to reporting by the U.S. Government. But the Chinese Government would not wish to report itself. Under the proposed language the Chinese Government would be obliged to report immediately to the Security Council in every case. He was pointing out a rather subtle connotation.

Ambassador Koo said the Chinese Government thought the last paragraph of Article V was superfluous and redundant. There was no desire on the part of China to repudiate any of its UN obligations. The Chinese Government would want to consider the propriety and the timing of any report to the UN. Article VI of the Philippine Treaty fully covered the requirement.

Mr. Phleger said that omission of the UN reference in Article V might be construed as an intention to evade the Charter obligation.

Dr. Yeh said that we could refer in Article VIII to Article [Paragraph] 51 of the Charter. The additional reference in Article V unnecessarily prolonged the treaty. He would even agree to special invocation of Paragraph 51 in Article VIII. It would sound strange, but he would agree if it would help to surmount the hurdle.

Mr. Robertson admitted that Article VIII confirmed the obligations of the parties under the UN Charter, but he felt that the additional reference in Article V was standard procedure and should be adhered to.

Mr. MacArthur said that the Senate felt it was important to spell out the UN obligations of treaty signatories and include a reference thereto wherever appropriate.

Mr. Robertson said it had become a pattern for the Pacific area. If you omit language in one treaty which appears in other treaties in the area, someone will attach unwarranted significance to the omission and ask about it.

Mr. Robertson said the treaty would encounter some opposition. Some elements would be on the other side. He was anxious to draw up a treaty which would obtain quick ratification.

Dr. Yeh said that before he left he discussed the treaty language with nine members of the Foreign Affairs Committee of the Legislative Yuan. Some had expressed fears that the Treaty would lead to a truce and permanent establishment of a dividing line in the Formosa strait which could not be crossed by either side without running into difficulties with the UN. He had been warned then that he should be on the alert to avoid a UN commitment which might impair the right of the Chinese Government to reclaim its own territory.

Mr. Robertson said that it would not be reasonable to ask the U.S. to sign a treaty which was out of the pattern established by other treaties in the area—especially the treaty with the Philippine Islands which had especially close historical ties with the United States.

Mr. MacArthur shared this view, saying particularly we could not expect the Philippine Government to assume an obligation from which the Chinese Government was exempt.

Mr. Robertson said it would look very strange if the ROC as a permanent member of the Security Council should seem to oppose recognizing a UN obligation.

Dr. Yeh repeated that the obligation under Paragraph 51 could be spelled out in Article VIII.

Mr. Robertson felt that the Chinese objection was not based on substantial grounds. He turned to Article VII regarding the granting to the United States of the right to dispose forces in and about Taiwan and the Pescadores. He noted that the phrase “the Government of the United States of America accepts” did not seem necessary, but he felt that its inclusion made no difference and did not need to be questioned.

As to Article X, he noted that the Chinese had suggested making the termination notice two years rather than one year. Mr. Robertson said that we had a one-year termination provision in the Korean, Philippine, ANZUS, and Southeast Asian Treaties. He asked why a different term should be specified in this Treaty. He remarked that an exception for the ROC would simply draw criticism and raise questions.

Dr. Yeh conceded the point and agreed to a one-year termination provision.

Mr. Robertson remarked that the treaty could not be made more favorable in any respect than the Philippine Treaty.

Reverting to Article IV, Mr. Robertson said that there was full provision for consultation. Hence, it was better not to establish a formal continuing Council with military representatives. Any necessary provisions for consultation could be made later.

Ambassador Koo asked if we wished to leave the matter of implementation of the consultation provision until after the Treaty was ratified.

Mr. Robertson said that was correct. The ANZUS Council, which the Chinese representatives had mentioned earlier, had been established because there were three signatories. There was less reason for a formal Council where there were only two signatories.

Dr. Yeh said that he wanted to have an understanding with the Secretary and Assistant Secretary Robertson as to an exchange of Notes interpreting the operative provisions of the Treaty. Such an exchange of notes would facilitate Chinese ratification. The Chinese Government would like to obtain a U.S. note stipulating that “in accordance with its constitutional process” does not imply that the 7th Fleet will be withdrawn.

Mr. Robertson did not think that the Department could sign such a note. The President is the Commander-in-Chief of the Armed Forces. He must dispose U.S. Forces as he thinks best for the security and safety of the country. There could not be any side agreement with another country as to what Fleet operational orders would or would not be maintained or withdrawn.

Mr. MacArthur said that the Department representatives had been through similar discussion before. It was impossible to agree to this suggestion.

Mr. Robertson said that no one could take this prerogative away from the Commander-in-Chief. Our suggested language in Article V went as far as it was possible for us to go.

Ambassador Koo asked if under the U.S. language for Article V, the President in his discretion could take immediate measures.

Mr. MacArthur said that upon ratification, this Treaty language would provide the President with constitutional authority, which he would not otherwise have, to act in the event of an armed attack on Taiwan or the Pescadores. This would be achieved by relating Formosa and the Pescadores to the peace and safety of the U.S. A Treaty cannot modify constitutional requirements. It can provide a basis for action which might be unconstitutional in the absence of a treaty.

Ambassador Koo inquired if the President could take measures under the Treaty, after its ratification, without consulting Congress.

Mr. MacArthur said the Treaty would give him authority to exercise his constitutional powers. Without the Treaty, he would not have the same powers.

Dr. Yeh asked if he could say to the Legislative Yuan, “This language is in accordance with U.S. constitutional practice.”

Mr. Robertson said the language would give the President a legal position which he does not now have. Some constitutional lawyers question whether the 7th Fleet order is still valid following termination of the Korean hostilities. The Treaty would strengthen the authority of the President to use U.S. forces for the defense of Formosa and the Pescadores.

Dr. Yeh said, “All right. I will go along with that language. But I want it to be noted that I may need to say before the Legislative Yuan that this is the interpretation of the Secretary of State himself.”

Mr. MacArthur said the Foreign Minister might not want to put himself in the position of interpreting U.S. constitutional law. He suggested that the Foreign Minister obtain direct confirmation from the Secretary that the proposed language afforded a basis for action by the Chief Executive under the Constitution.

Dr. Yeh said that he would tentatively go along with the U.S. draft of both paragraphs under Article V.

Ambassador Koo referred to Article VI and asked if the following sentence was tentatively accepted: “The provisions of these two articles will be applicable to such other territories as may be determined by mutual agreement.”

Mr. Robertson said that he could not formally accept that language without consulting the Secretary. He felt there was no substantial difference. He asked when the negotiators could meet to agree officially on the text. He thought that the two sides had achieved substantial agreement.

Dr. Yeh said he would have to wire the President of the Executive Yuan. He said that as Foreign Minister he had full authority to negotiate, and to accept or reject ad referendum. But the Cabinet must consider the draft. It would take four or five days, or a week at most.

Mr. Robertson said that the Secretary wanted to conclude the negotiations immediately. He had thought Dr. Yeh had full authority.

Dr. Yeh said that he thought the draft just agreed on would be approved, but the reference to the Cabinet was a necessary procedure.

Mr. Robertson said the Generalissimo had informed him in Taipei in October that Foreign Minister Yeh would have full authority.

Ambassador Koo said that both he and Dr. Yeh had full power to negotiate. But the reference to the Cabinet was a necessary formality before they could be authorized to sign.

Mr. MacArthur said that the negotiations must be held absolutely secret. Any questions which might result from a leak could lead to difficulties.

Mr. Robertson emphasized that the situation would be full of dynamite if a leak occurred.

1. The Chinese draft, given to McConaughy by Tan on Nov. 3, is in file 793.5/11354. The U.S. draft under reference has not been found in Department of State files.
2. Article II of the Chinese draft stated that the two Parties, separately and jointly, by self-help and mutual aid, would maintain and develop their individual and collective capacity to resist armed attack and “to prevent and counter communist subversive activities directed from without against their territorial integrity and political stability.”
3. Article IV of the Chinese draft stated that the two governments agreed to establish a continuing Council, consisting of the U.S. Secretary of State or his Deputy and the Chinese Foreign Minister or his Deputy, each of whom would designate a military representative, and agreed that consultations would be held at the request of either Government.
4. Article VI of the Chinese draft.