43
ANNEX B
199
Page 242
THE SUBSTANCE OF THE TREATY
THE PREAMBLE
The preamble to the American Draft Treaty is generally acceptable in content though its language will require a considerable amendment if it is to conform with precedent. There are, however, five points, three of them in the United States Draft Treaty and two of them in paragraph 6 of the United States Aide-Mémoire of 14th March, which require consideration in view of the existing policy of His Majesty's Government.
General Declaration
2. The first general point is that the United States Government propose that Japan should in the Preamble make a general declaration of intention to behave in what might be termed a civilised manner in International affairs in the future. Such a declaration is not usually found in the preamble to a Peace Treaty, but there seems to be no legal objection to it. It is therefore recommended that this United States proposal be accepted.
United Nations
3. The United States Draft proposes that Japan should declare her intention to apply for membership of the United Nations Organisation. It will be recalled that in paragraph 8 (m) of C.P. (50) 323 approved by the Cabinet on 2nd January it was stated that "no mention should be made in the Peace Treaty of Japan's becoming a member of the United Nations." During Mr. Dulles's informal conversations with the United Kingdom political representative in Tokyo, it became clear that the United States Government contemplated that the Japanese Peace Treaty would require Japan to apply for membership of the United Nations. Now, however, the United States Government has come some way to meet His Majesty's Government's point of view by suggesting that this matter might be dealt with in the preamble as part of the declaration by Japan. In view of the United States Government's willingness to modify its views, and since a declaration of this kind by Japan seems unexceptionable, it is recommended that the United States proposal in this respect should now be accepted and that to this extent Ministers' previous decision in paragraph 8 (m) in C.P. (50) 323 should be reconsidered.
Undertaking by the Allied Powers
4. The preamble to the United States Draft Treaty suggests that the Allied Powers should state that they welcome Japan's intentions and will seek to facilitate their realisation. It is submitted that the Allied Powers should not undertake any obligation with respect to Japan's intentions. There appears to be no reason why His Majesty's Government should agree to a clause which might at some future date be held to bind them to support Japan's application for membership of the United Nations. It is therefore recommended that we should attempt to convince the United States Government of the undesirability of inserting anything in the preamble to the Treaty which might cast an obligation upon us at some future time.
War Guilt
5. In paragraph 9 of its Aide-Mémoire the United States Government stated as regards a war guilt clause "the United States doubts that it would accomplish any positive good and, if the Versailles analogy has relevance, it might do harm. The United States is particularly reluctant now to press for such a clause more than five years after the surrender and in view of the splendid co-operation given by all the people of Japan in lending assistance to the United Nations action in Korea...." It will be recalled that in paragraph 1 of O.R.C. (47) 33 (The Canberra Brief on the Territorial, Political and General clauses of the Japanese Peace Treaty) it was stated that the Treaty" should contain some acknowledgment by Japan of her responsibility for provoking a state of war. Japan should be described as having surrendered unconditionally in accordance with the terms of the Potsdam Declaration and a reference should be made to the instrument of surrender sighed inTakyo Bay on 2nd September, 1945." Page 242 of 587
40451
+
I
44
It is
Pago.24Bhefe&ppears to be much force in the palsage quote from the United States Government's Aide-Mémoire. The Preamble to the Treaty should, as the O.R.C. paper quoted above pointed out, be drafted with a view to its long-term political and propaganda effects on "(a) the Japanese people, and (b) British possessions in South-East Asia which were overrun by the Japanese." submitted that the general intention underlying the proposed Peace Treaty is that in conformity with the principles of justice it should form the basis of stable and friendly relations between Japan and the rest of the World. Little is likely to be achieved at this stage either in Japan or in British possessions in South-East Asia by recording specifically Japan's misdeeds in the past. It is therefore submitted that the United States Government's view be accepted and that no mention of war guilt or of Japan's unconditional surrender be made in the preamble to the Peace Treaty.
Japanese Claims in Antarctica
""
:
7. It will be recalled that in considering C.P. (50) 323 Ministers approved the recommendation in paragraph 8 (a) (vi) that "Japan should renounce all political and territorial claims, whether actual or prospective, in the Antarctic Continent and the islands adjacent thereto.' In paragraph 6 of its Aide-Mémoire of 14th March, the United States Government, while agreeing that Japan should renounce all its existing claims in the Antarctic Continent, stated that
it appears invidious and not in keeping with the overall philosophy of the Treaty to require Japan to forswear any future claims to a vast territory, much of which has not yet been explored."
'
<6
8. It will be recalled that in paragraph 41 of the report of the Commonwealth Working Party on the Japanese Peace Treaty (C.P. (50) 160) it was stated that representatives of Australia, South Africa and New Zealand all stressed the importance of including in the Treaty a clause whereby Japan will renounce all political and territorial claims, whether actual or prospective, in the Antarctic Con- tinent and the islands adjacent thereto." It was in deference to the views of these Commonwealth countries at the official level that this suggestion was put to the United States Government.
9. The United States Government's contention that Japan should not be prohibited from making claims in the Antarctic in future appears equitable and may be accepted. The effect, however, of requiring Japan only to renounce her existing claims may well be unsatisfactory. His Majesty's Government have never recog- nised Japan as having any political or territorial claims in the Antarctic Continent or in the islands adjacent to it. If, therefore, the Treaty requires Japan to renounce her claims in the Antarctic it might well raise the presumption that she had claims to renounce. Such action might also give colour to unsubstantiated and unrecog- nised claims by other Governments in the Antarctic, e.g., Russia. It would seem, therefore, that unless Japan is required to refrain from making any claims in the Antarctic in future it would probably be advisable to make no mention of the subject in the Treaty at all.
It is recommended that, subject to consultation with Commonwealth Govern- ments, His Majesty's Government should agree with the United States Govern- ment that Japan should not be prohibited by the Treaty from making any future claims in the Antarctic and should inform them that for the reasons set out above it would be advisable to make no mention of the Antarctic in the Treaty at all.
Protection of Japanese Nationals who Sympathised with or Supported the United
Nations during the War
10. It will be recalled that when the Overseas Reconstruction Committee approved the paper O.R.C. (47) 33, it was decided that the Treaty should contain a provision binding Japan not to take action against "Japanese nationals who had assisted or sympathised with the Allies, whether in or outside Japan, during the period from the Japanese declaration of war up to the signing of a Peace Treaty." When this question was discussed by the Commonwealth Working Party on the Japanese Peace Treaty in May 1950 (C.P. (50) 160), it was generally agreed that this question" most directly concerned the United States, and that there would probably be no objection to the inclusion of such a provision if the United States so desired."
11. The United States Draft Peace Treaty with Japan does not include a pro- xision on these lines. There has been no indication that the Japanese Government or Fapanese people are inclined to treat collaborators gary.OfThe7few Japanese
11
45
244 587