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who assisted Astf5overnment during the war returned to fapan at their

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own request and there is no evidence that since their return they have been in any way discriminated against. It is therefore recommended that the decision of the Overseas Reconstruction Committee in approving the proposals contained in O.R.C. (47) 33, mentioned above, should be reconsidered, and that His Majesty's Government should not press for the inclusion of a clause of this kind in the Japanese Peace Treaty.

War Criminals

12. On 2nd January Ministers approved a proposal in paragraph 8 (b) (x) of C.P. (50) 323 that the Japanese Government should be obliged by the Peace Treaty to ensure that, subject to normal remissions for good conduct, war criminals in Japan sentenced to terms of imprisonment before the Peace Treaty should serve the prison terms to which they were sentenced by War Crimes Courts. The United States draft Peace Treaty suggests that, not only should such an obligation be laid on the Japanese Government, but that it should be stated in the Treaty that "the power to grant clemency, reduce sentences, parole and pardon with respect to war crimes sentences imposed by military tribunals of the Allied Powers on persons who are incarcerated in Japan may not be exercised except jointly by Japan and the Govern- ment or Governments which imposed the sentence in each instance."

13. While the wording of the United States Article may not, after considera- tion by the Legal Advisers, be found wholly satisfactory, it is suggested that this United States proposal has much to recommend it. By this means it should be possible to ensure that convicts sentenced by Allied military courts for war crimes are not set free on the pretext of ill-health-the Italian Government has acted most dishonourably in releasing a large number of war criminals on what are suspected to be false medical certificates and it has been impossible for the Allied Powers to see that these men serve their sentences.

14. There is, however, one suggestion in the United States proposal quoted above that appears to be wholly unacceptable. This is that war criminals should be eligible to receive a pardon. The word may have a different meaning in American law, but in England it could only mean that a war criminal would not only be released but that his conviction would be set aside. It is suggested that it would be most objectionable to provide in the Peace Treaty that any properly convicted war criminal could in any circumstances have his conviction reversed except by due process of law.

15. It is therefore recommended that the suggestion put forward by the United States Government that the Treaty should contain provision for the association of the Allied Governments concerned with grants of clemency, parole, &c. to war criminals serving their sentences in Japan should be accepted, but that the proposal that the word " pardon " should appear in the Article should be strongly resisted.

Undesirable Political Societies in Japan

16. On 2nd January the Cabinet approved a proposal in C.P. (50) 323, paragraph 8 (b) (viii) that in the Peace Treaty Japan should undertake to prevent the resurgence of undesirable political societies, though it was thought that such a provision might well be unenforceable. This suggestion was put to the United States Government, who replied in their Aide-Mémoire of 14th March, para- graph 8, that they considered such a proposal inconsistent with the agreed objectives of the Japanese Peace Treaty and, in particular, with the view expressed by the United Kingdom Chiefs of Staff that Japan's continued alignment with the West can only be achieved on a voluntary basis. In addition, the United States Government made the same point as occurred to Ministers when considering this question on 2nd January (Cabinet Conclusions (51) 1st Meeting, paragraph 4 (c)) that a provision of this kind might be unenforceable.

It is therefore recommended that the decision in C.P. (50) 323 mentioned above should be reconsidered, and that no further attempt should be made to obtain the inclusion of such a clause in the Japanese Peace Treaty.

Reparations from Japanese Gold

17. On 2nd January the Cabinet approved a proposal (paragraph 8 (d) of C.P. (50) 323) that we should press for stocks of Japanese monetary gold under

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Pentreffe Supreme Commander in Japan to be mate available as repara- tions. Ministers took note, however, that such a proposal would be strongly resisted by the United States Government. This suggestion was put to the United States Government in paragraph 9 of the Aide-Mémoire left with the United States Secretary of State on 12th March. The United States Aide-Mémoire, in reply (paragraph 14) stated that "the United States cannot agree that the stocks of Japanese monetary gold should be made available as reparations." The Aide- Mémoire went on to say that, in view of the continued failure of the Far Eastern Commission to reach agreement on reparation shares for member Governments, there seemed to be no reason to believe that it would be possible in future to reach agreement on the division of the gold. The United States Government also stated that, since in respect of Germany the United Kingdom had agreed that the cost of the Occupation and aid given to the Government of the Federal Republic should take priority over other claims, they must insist that, should Japanese gold be made available as reparations, the whole of it should be made over to the United States as a part repayment of the $2,000 million aid given to Japan in the last five years. The United States Government, however, consider that these stocks of gold should remain in Japan to serve as currency backing.

18. Subsequent conversations with officials of the State Department have shown that if the gold were made available as reparations the United States administration would be under overwhelming pressure from Congress to secure the whole of the gold as a set-off against payments already made to Japan.

19. There appear, therefore, to be two questions for consideration, first whether or not the stocks of gold and precious metals under the control of the Supreme Commander in Japan should be made available as reparations, and secondly, if they are to be made available, whether His Majesty's Government can succeed in securing a share of them.

20. To deal with the second point first, it now seems clear that, if the gold were made available as reparations, it would probably be impossible, in view of the attitude of Congress and of the agreement in respect of Germany quoted above, for His Majesty's Government to resist the United States claim to receive it all as a very small set-off against the aid she has given to Japan during the last five years. It must also be borne in mind that the United States Congress might conceivably refuse to ratify a Peace Treaty which did not secure the gold for the United States. 21. If therefore, as seems certain, His Majesty's Government cannot hope to secure a share of Japanese gold, the question remains whether the Japanese should be allowed to retain it. Morally, there are strong arguments for requiring the Japanese to make this small if inadequate reparation for the great damage they caused in Asia during the war. It is probably arguable that the possession of this small amount of gold can make very little difference to the viability or otherwise of Japan's economy. Further, the Government of Australia has been insistent that Japan should be made to pay some reparations. On the other hand, it is also clear that the United States Government are determined that this gold should remain in Japan, and it would therefore seem unwise for His Majesty's Government to court unpopularity in Japan by insisting that, even thought they themselves would not receive a share of it, Japan must, nevertheless, be deprived of it. It is therefore submitted that, in speaking to the United States Government, His Majesty's representatives should be authorised to say that, while they do not find the argu- ments set out in the United States Aide-Mémoire convincing, yet as a matter of practical politics they are prepared to agree, subject to further consultation with Commonwealth Governments, that the stocks of gold and precious metals under the control of the Supreme Commander in Japan should be handed over to the Japanese Government when the Peace Treaty comes into force.

Possible Provision in the Peace Treaty that no State which did not Sign or Accede

to it should Gain Benefits from it

22. Paragraph 19 of the United States Draft Peace Treaty with Japan suggests that with the exception of provisions under which Japan will renounce all her special rights and interests in China, no State which does not sign, ratify or accede to the Treaty should gain any rights or benefits from it. This provision has a precedent in the somewhat shorter Article 89 of the Italian Peace Treaty.

are a

agThese Articles are a logical statement of the generally accepted principle of international law pacta tertiis nec nocent nec prosunt "treaties neither benefit

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party to present Treaty which contained the United States Article 19 she would not acquire title to South Sakhalin and the Kurile Islands until she had made a separate treaty with Japan. If an Article similar to Article 19 of the United States Draft were not inserted in the Treaty, and Russia was not a party to it, she would still not obtain clear title to South Sakhalin and the Kuriles since the Treaty would have to be construed subject to the principle quoted above. Nevertheless, Russia's position in the Kuriles and South Sakhalin would still remain obscure.

23. It is therefore recommended that a provision on the lines of Article 19 of the United States Draft Treaty should be accepted in order to make plain the position of States which are not parties to the present Peace Treaty.

Japanese Assets in Allied Territory

24. In 1947 the Overseas Reconstruction Committee approved a proposal in O.R.C. (47) 34, Section III, that Japanese assets in Allied territory should be retained by the Allied State concerned, exception being made in the case of--

(1) Property belonging to Japanese who were allowed to reside in Allied terri-

tory during the war;

(2) Property rights acquired by Japan since 2nd September, 1945; and (3) If necessary, the property of Japanese who continued to reside in territories

ceded by Japan.

In Article 14 of the United States draft Peace Treaty with Japan, the United States Government have suggested that there should be five exceptions of this kind. They have suggested exception (1) already mentioned, and also the following:—

(a) Tangible diplomatic and consular property (but not the expenses incurred

in their preservation);

(b) Property of non-political religious, charitable, cultural or educational

institutions;

(c) Property in Japan of which evidence of title is held in Allied territory or

against which debts or claims exist in Allied territory;

(d) Trade-marks identifying products originating in Japan.

25. In paragraph 6 of Article 79 of the Italian Treaty exception was made in respect of Italian consular and diplomatic property and property belonging to religious bodies or private charitable institutions used exclusively for religious and charitable purposes. It is suggested, however, that it would be unwise to agree with the United States Government that exceptions should be made in respect of assets of Japanese cultural or educational institutions. It might in any case raise difficulties with Italy if Japan, whom the Treaty will not require to pay substantial reparations, is given much more favourable treatment than Italy in the matter of her overseas assets. It is therefore recommended that in principle the exceptions suggested at (a) and (b) in paragraph 24 should be accepted, but that the United States Government should be urged to agree to the adoption in these respects of the language of Article 79 (6) (a) and (b) of the Peace Treaty with Italy which appears preferable to that in the United States draft.

26. The exceptions suggested at (c) and (d) in paragraph 24 above are prima facie unacceptable. Exception (c) is obscure, but it might be construed to include Japanese securities in the custody of the Custodian of Enemy Property. Excep- tion (d), if included in the Treaty, might be difficult to justify in view of Japan's bad record with regard to trade-marks before the war. It is therefore recommended that the United States Government's suggestions contained in paragraph 24 (c) and (d) above should not be accepted and that the United States Government should be informed accordingly.

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