Peace Treaty with Japan (1951)
- Peace treaties — Occupation — Armed conflict — Self-defence — Since World War II — Specific treaties — Treaties, interpretation — Treaties, application
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Historical Background
1 In 1941, Japan entered World War II on the side of the Axis Powers, expanding the theatre of the war to the Pacific and South East Asia, and kept fighting its war even after the German defeat in May 1945. The Japanese decision to surrender was made after the destruction of Hiroshima and Nagasaki by atomic bombs in August 1945 (Nuclear Weapons and Warfare), as well as the Soviet decision to enter the war against Japan in spite of the Pact of Neutrality between the Union of Soviet Socialist Republics and Japan ([signed 13 April 1941, entered into force 25 April 1941]  12 Department of State Bulletin 812). Japan accepted the terms of surrender laid out in the Potsdam Conference (1945) in July 1945, negotiated by the United States, the United Kingdom, China, and the Union of Soviet Socialist Republics (‘USSR’), though the USSR did not sign the proclamation since it was not yet at war with Japan. The proclamation contained demands such as complete demilitarization, prosecution of war criminals, revival of democracy, and respect for human rights. It also expressed the policy of maintaining Japanese industries that would enable Japan to pay reparations. The Japanese territory was to be limited to the four main islands of Honshu, Hokkaido, Kyushu, and Shikoku besides minor islands in accordance with the Declaration on Future Military Operations against, and Policy concerning Japan ([signed 1 December 1943, entered into force 1 December 1943] 38 AJIL Supp 8). It was also made clear that the Allied occupation forces would remain in Japan until those goals were attained. The Instrument of Surrender by Japan was signed on 2 September 1945 ([entered into force 2 September 1945] 139 UNTS 387).
2 Unlike Germany (Germany, Occupation after World War II), Japan was not divided into zones under different occupying powers during the period of the Allied occupation, from 1945 to 1951, that preceded the Treaty of Peace with Japan. Japan as a single unit was placed under the Supreme Command for the Allied Powers (‘SCAP’). Other institutions to assist or advise the formulation and implementation of the occupation policies by the SCAP were also set up: the Far Eastern Commission, composed of the US, the USSR, the UK, China, Australia, France, the Netherlands, Canada, India, New Zealand, and the Philippines; and the Allied Council for Japan, composed of the US, the UK, the USSR, and China. However, the real decision-maker concerning the Japanese occupation was the US: it provided the overwhelming majority of the occupation forces; the SCAP was also an American general. Other Allied Powers and the aforementioned institutions played only a nominal role in administering Japan during this period.
3 The Peace Treaty with Japan was signed in San Francisco on 8 September 1951, more than six years after Japan’s surrender, by 48 out of the 55 countries that had been at war with Japan by the time Japan had surrendered. The Peace Treaty with Japan ended both the state of war between these Allied Powers and Japan (Art. 1 Peace Treaty with Japan) and the occupation (Art. 6 Peace Treaty with Japan). In the wake of the Cold War (1947–91), with the Korean War (1950–53) being fought in the neighbourhood of Japan, a peace treaty with Japan became an urgent agendum for the US. The delayed peace treaty was thus hastily concluded in 1951. The Peace Treaty with Japan prepared under the heavy influence of the US was not signed by the USSR, Poland, and Czechoslovakia, even though they took part in the conference in San Francisco for this peace treaty. China was not invited to the conference itself because of its two competing governments and the inability of the hosting States to agree on which of the two Chinese governments to invite. India, Burma, and Yugoslavia declined to take part in the conference altogether. Against this backdrop, the Peace Treaty with Japan is marked by the incomplete participation of the Allied Powers that had fought the war against Japan. In substance, it is characterized by: 1) a consolidation of measures that had gradually been implemented during the occupation; 2) generous features compared to other Peace Settlements after World War II, such as the omission of a demilitarization clause, the omission of the concrete amount of reparation to be paid, and the absence of any supervisory mechanisms for the implementation of the treaty terms. The Peace Treaty with Japan came into force on 28 April 1952. It was accompanied by two declarations and the Protocol relating to Provisions for regulating the Question of Contracts, Periods of Prescription and Negotiable Instruments, and the Question of Contracts of Insurance, upon the Restoration of Peace with Japan.
B. Content of the Peace Treaty
4 The Peace Treaty with Japan has seven chapters: Peace; Territory, Security, Political and Economic Clauses, Claims and Property, Settlement of Disputes, and Final Clauses.
1. Chapter on Peace
5 The first chapter on peace in its single article announces the end of the state of war between Japan and the Allied Powers.
2. Chapter on Territory
6 The second chapter on territory is, in substance, a list of territories over which Japan renounced all right, title, and claim or interest (Art. 2 Peace Treaty with Japan): Korea, which had been annexed in 1910; Formosa and the Pescadores (Taiwan); the Kuril Islands as well as the Southern portion of Sakhalin and its adjacent islands acquired by Japan in 1905; Antarctica; the Spratly Islands, and the Paracel Archipelago. The Pacific Islands, formerly under mandate to Japan in the League of Nations mandate system, had already been incorporated into the United Nations Trusteeship System in 1947, with the US as the administering authority. Besides confirming this trusteeship (Art. 2 (d) Peace Treaty with Japan), the Peace Treaty with Japan also placed Japan under an obligation to concur in the future US proposal to the United Nations (UN) to place several other islands, such as the Ryukyu Islands, under the trusteeship system (Art. 3 Peace Treaty with Japan). The islands that additionally came under the US administration in this way were, however, gradually returned to Japan in the following two decades. On the whole, the territorial arrangement in the Peace Treaty with Japan consolidated the territory occupied by the Allied forces between 1945 and 1951 as the Japanese territory.
3. Chapter on Security
7 Though Japan was not yet a member of the UN, the UN Charter served as a basis for this chapter on security. Japan accepted the obligations stipulated in Art. 2 UN Charter (Art. 5 (a) Peace Treaty with Japan). The Allied Powers would also be guided by the principles of the same article in their relations with Japan (Art. 5 (b) Peace Treaty with Japan), and recognized Japan’s right of self-defence referred to in Art. 51 UN Charter (Art. 5 (c) Peace Treaty with Japan). Given this, and the absence of any demilitarization clause in the Peace Treaty with Japan, Japan’s gradual rearmament in the years to follow did not violate the Peace Treaty. The sole legal problem it raised was within its own Constitution, drawn up under the occupation regime, and whose Art. 9 (2) declared that ‘land, sea and air forces, as well as other war potential, will never be maintained’. Successive Japanese governments took the position that the forces maintained for the sole purpose of self-defence were constitutional.
8 While the Peace Treaty with Japan ended the occupation by the Allied forces, the US secured a right to disperse its forces in and about Japan under a bilateral security treaty ([signed 8 September 1951, entered into force 28 April 1952] 136 UNTS 45) consisting of five articles, signed on the same day as the Peace Treaty with Japan. Such stationing of foreign armed forces in Japan under an agreement with Allied Powers was explicitly allowed by Art. 6 (a) Peace Treaty with Japan.
4. Political and Economic Clauses
9 a) Concerning the validity of the pre-war treaties with Japan (Treaties, Validity), each of the Allied Powers would notify Japan which ones it wished to continue in force or revive (Art. 7 (a) Peace Treaty with Japan). Certain treaties under which Japan was to renounce its rights and interests were (in Art. 8 Peace Treaty with Japan) specifically named, such as the Conventions of St Germain (1919), the Straits Agreements of Montreux (1936), and the Lausanne Peace Treaty (1923).
10 b) Japan was to conclude agreements on fisheries (Art. 9 Peace Treaty with Japan), commerce (Art. 12 Peace Treaty with Japan), and aviation (Art. 13 Peace Treaty with Japan) with the Allied Powers. Prior to the conclusion of such agreements, provisional arrangements including most-favoured-nation treatment and national treatment in some of these areas were promised.
5. Claims and Property
12 The fifth chapter on claims and property had to balance the two conflicting considerations concerning reparation (Reparations after World War II): the demand that Japan should pay reparation and the recognition that Japan’s resources were not sufficient to make complete reparation (Chapeau Art. 14 (a) Peace Treaty with Japan). Thus, no concrete amount for reparation was named in the Peace Treaty with Japan. On one hand, it placed Japan under an obligation to enter into negotiations with the Allied Powers ‘whose territories had been occupied and damaged by Japan’ (Art. 14 (a) 1 Peace Treaty with Japan). Japan later confirmed that the Philippines, Vietnam, Laos, Cambodia, Indonesia, Australia, the Netherlands, the UK (for Hong Kong and Singapore), and the US (for Guam and other islands) would qualify as such Allied Powers. Accordingly, some of them reached reparation agreements with Japan, while others waived the right conferred upon them by this provision.
13 On the other hand, except otherwise provided for in the Peace Treaty with Japan, the Allied Powers waived ‘all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war’ (Art. 14 (b) Peace Treaty with Japan). Similarly, Japan also waived ‘all claims of Japan and its nationals arising out of the war or out of actions taken because of the existence of a state of war’ (Art. 19 (a) Peace Treaty with Japan).
14 Other arrangements in this chapter include the right of the Allied Powers to dispose of Japanese property under their jurisdiction (Enemy Property), with certain exceptions (Art. 14 (a) (2) Peace Treaty with Japan); the return of the Allied property which was in Japan during the war to the original owners (Art. 15 Peace Treaty with Japan; Property Commissions Established pursuant to Art. 15 Peace Treaty with Japan ); the transfer of certain Japanese assets, such as those in neutral countries, to the International Committee of the Red Cross (ICRC), to be used as indemnization of the prisoners of war (Art. 16 Peace Treaty with Japan); and Japan’s obligation to review the decisions of the Japanese prize courts involving rights of the nationals of Allied Powers (Art. 17 Peace Treaty with Japan; Prize Law).
6. Settlement of Disputes and Final Clauses
15 According to Art. 22 Peace Treaty with Japan any party could refer a dispute concerning the interpretation or execution of this treaty to the International Court of Justice (ICJ). The clause has never been resorted to. The last chapter on final clauses included provisions on ratification and entry into force of the Peace Treaty with Japan (Art. 23 Peace Treaty with Japan), its depositary (Art. 24 Peace Treaty with Japan), which was the US (see Art. 27 Peace Treaty with Japan), and the definition of the ‘Allied Powers’ in the treaty (Art. 25 Peace Treaty with Japan). Japan would also conclude a peace treaty on the same—or substantially the same—terms as included in this peace treaty with those countries that were at war with Japan but did not adhere to the Peace Treaty with Japan, as well as the newly independent countries that had previously formed a part of the territory of the major Allied Powers (Art. 26 Peace Treaty with Japan). The same article also provided for the most-favoured-nation treatment for the Allied Powers in case subsequent peace treaties included greater advantages.
1. Short-Term Consequences
16 The Treaty left Japan and some countries without a peace treaty. Therefore, in the 1950s, Japan gradually made bilateral arrangements with these countries. It concluded the Indo-Japanese Treaty of Peace ([signed 9 June 1952, entered into force 27 August 1952] in Foreign Policy of India 1947–59 (2nd ed Lok Sabha Secretariat New Delhi 1959 (69–75) and the Treaty of Peace between the Union of Burma and Japan ([signed 5 November 1954, entered into force 16 April 1955] 251 UNTS 201), neither of which had signed the Peace Treaty with Japan. Japan also concluded the Treaty of Peace between Japan and the Republic of Indonesia ([signed 20 January 1958, entered into force 15 April 1958] 324 UNTS 227), for Indonesia had signed but not ratified the Peace Treaty with Japan. The diplomatic relations with Poland, Czechoslovakia, and Yugoslavia were also gradually restored.
17 Some bilateral arrangements were difficult to negotiate and only reached in the 1960s and 1970s. The negotiations with China and Korea presented such cases. The special positions of China and Korea, who were not signatories to the Peace Treaty, were recognized in Art. 21 Peace Treaty with Japan. Concerning China, given the problem of government recognition, Japan eventually concluded the Treaty of Peace between the Republic of China and Japan ([signed 28 April 1952, entered into force 5 August 1952] 138 UNTS 3) with the government in Taiwan. When Japan decided to recognize the government in Beijing instead of Taiwan, this led to the Joint Communiqué between Japan and the People’s Republic of China in 1972, and the two governments proceeded to conclude the Treaty of Peace and Friendship between Japan and the People’s Republic of China ([signed 12 August 1978, entered into force 23 October 1978] 1225 UNTS 257). Concerning Korea, Japan recognized its independence in Art. 2 Peace Treaty with Japan. Between the Republic of Korea and Japan, negotiations started in 1951 but it was not until 1965 that the Agreement on the Settlement of Problems concerning Property and Claims and on Economic Cooperation between Japan and the Republic of Korea ([signed 22 June 1965, came into force 18 December 1965] 583 UNTS 173) was finally reached, together with the Treaty on the Basic Relations between Japan and the Republic of Korea ([signed 22 June 1965, entered into force 18 December 1965] 583 UNTS 33). No agreement has been separately reached between the Democratic People’s Republic of Korea and Japan. Intermittent negotiations have been taking place between the two since 1991.
2. Longer-Term Consequences: Territorial Dispute between Russia and Japan
18 Unlike the rest of the Japanese territory which was mainly occupied by US forces in 1945, the Kuril Islands were occupied by Soviet forces. As explained above, the USSR did not sign the Peace Treaty with Japan. The Treaty with Japan under which Japan renounced right, title, and claim for the Kuril Islands did not explicitly name their recipient. The subsequent dispute between the USSR and Japan concerning the Kuril Islands prevented the two countries from concluding a bilateral peace treaty in spite of the negotiations to this end throughout 1955 and 1956. In October 1956, Japan and the USSR signed the Joint Declaration by the Union of Soviet Socialist Republics and Japan ([signed 19 October 1956, entered into force 12 December 1956] 263 UNTS 99) which stipulated the termination of the state of war between them and the resumption of their diplomatic relations. Successive governments have tried to settle these differences, but to no avail. As a result, the two countries are left without a formal peace treaty to date.
3. Lasting Consequences: Lawsuits by Individuals and the Waiver Clauses
19 Various types of lawsuits related to the Peace Treaty with Japan were brought before Japanese courts (Compensation for Personal Damages Suffered during World War II). In many of these cases, a question regarding the Peace Treaty with Japan was whether or not its waiver clauses extinguished the rights of the individuals to compensation, or at least bar the individuals from presenting such claims in courts. First, in some cases, the Japanese plaintiffs tried to argue that the Japanese government should compensate their losses and damages arising out of the actions of the Allied Powers, which they could no longer claim vis-à-vis the Allied Powers: the Japanese government waived not only its own claims but also that of its nationals in Art. 19 (a) Peace Treaty with Japan. The Japanese government argued that the article in question was not meant to waive the individuals’ right to claims, but only the right of the government to represent the claims of individuals. Court decisions generally accepted the government’s view. Second, in other cases, the nationals of the Allied Powers tried to sue the Japanese government, in which a similar waiver clause formulated for the Allied Powers (Art. 14 (b) Peace Treaty with Japan) was examined. Japanese courts tend to interpret this waiver clause as a waiver of the individuals’ right to claims in these cases (eg, X v the Government of Japan [11 October 2001] Tokyo High Court). Third, there have also been lawsuits brought against the Japanese government by Koreans, Taiwanese, and Chinese. Since they are not nationals of any signatory of the Peace Treaty with Japan, these lawsuits are not directly governed by the Peace Treaty with Japan. Instead, they are regulated by bilateral arrangements made subsequently by Japan with the Republic of Korea, Taiwan, and the People’s Republic of China, as explained above (see para. 17). Nevertheless, because of a similar waiver clause or a reference to the Peace Treaty with Japan in these bilateral arrangements, their lawsuits are also affected by the aforementioned interpretation of the waiver clause in the Peace Treaty with Japan. For example, the Japanese supreme court ruled in a case brought by former Chinese workers against their former employer, Nishimatsu Construction, that although the waiver clause of the Peace Treaty did not apply to claims by persons from the People’s Republic of China, their right to claims was waived by the 1972 Japan-China Joint Communiqué (X v Y [27 April 2007] Supreme Court of Japan).
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