SECRET December 19, 1949
MEMORANDUM
| TO: | FE - Mr. Maxwell M. Hamilton |
| FROM: | L - Jack B. Tate |
| SUBJECT: | Territorial Clauses of Draft Japanese Peace Treaty. |
You have requested the view of this Office concerning the propriety of redrafting the territorial clauses of the draft Japanese Peace Treaty so that Japanese territory will be defined, Japan will renounce all rights to all other territory to the Allied and Associated Powers who will be made in a separate instrument to be executed simultaneously with the Japanese treaty.
There is no rule of international law prescribing any single manner for the transfer or or cession of territory. Since territorial questions are often a threat to peaceful international relations, methods which result in an unequivocal settlement recognized by the nations of the world are desirable. For this reason, the common manner of disposing of territories of a defeated enemy, when the recipient of the territory is agreed to by all concerned, is by cession in a treaty of peace (see, e.g., Italian Treaty of 1947, Arts. 6, 11, 14; Hungarian Treaty of 1947, Art. 1, Finnish Treaty of 1947, Art. 2).
Where the recipient is not agreed to by all concerned, a power of disposition, limited or unlimited depending on particular circumstances, is often given by the defeated enemy in the treaty. In those cases in which this method has been used, there are generally two circumstances present: 1) the disposition is not agreed to by all concerned at the peace conference, 2) something needs to be done outside the peace conference before definitive disposition can be agreed to by those concerned (a plebescite, a placing under mandate through a League of Nations, etc.) The Versailles Treaty is good example of this method; see, e.g., Arts. 87 (Polish frontier), 118 and 119 (German Colonies). Article 23 of the Italian Treaty of 1947 (Italian Colonies) is another.
In general, then, past practice reveals that actual disposition by cession or transfer by the defeated enemy to the recipient is appropriate where the recipient is agreed upon and no important further steps are needed, while a power of disposition is used when there is uncertainty. The Italian Treaty of 1947 illustrates
this:
