What were these “Secret Pacts” with Japan?

by Duncan Hollis

Yesterday, the Japanese Government (now led by the Democratic Party after nearly five-plus decades of rule by the Liberal Democratic Party) confirmed that in the 1960s Japan and the United States entered into a series of secret defense pacts.  Specifically, a committee of scholars has identified various tacit agreements allowing U.S. warships to carry nuclear weapons into Japanese ports, granting unrestricted use of U.S bases in Japan in the event of a renewed Korean conflict, and requiring Japan to fund the clean-up of U.S. bases in Okinawa after it regained control over that territory in 1972.  For years, the Japanese government had denied these agreements existed, notwithstanding widespread suspicions that they did.  Thus, most of the media attention has focused on how yesterday’s disclosures will play out under the Japanese legal system (especially given the Constitution’s renunciation of war).  Others have asked if the admission signals some new shift in U.S.-Japanese foreign relations.

I’m curious, however, about two other issues.  First, what status, if any, did these pacts have under international law?  Although colloquially referred to as “secret treaties” in Japan, it’s not clear to me whether there were any actual treaties involved.  For starters, at least some of these pacts appear to have been the result of “unspoken agreement.”  Now, the Vienna Convention on the Law of Treaties did not rule out the possibility of oral treaties (see Article 3)  And scholars are quick to point out the existence of a few ”oral treaties” made over the years; many regard the Ihlen Declaration as an oral treaty rather than a unilateral declaration; and the Danes also reportedly settled their Great Belt bridge dispute with Finland via an oral agreement.   On the other hand, as I’ve noted previously, given how limited state practice is when it comes to oral treaties, I wonder whether international law really continues to treat these instruments as equivalent to those written treaties that do fall within the VCLT definition?

At the same time, some of the media reports have chosen to emphasize the fact that certain documents are missing from the archives, implying that there were written U.S.-Japanese agreements at one time, which have now gone missing.  Even if the United States and Japan concluded these pacts as written instruments, however, that does not necessarily accord them treaty status.  The United States has a long history of doing political commitments with foreign states that it denies impose any international legal obligations, even if they have significant political or moral force.  Moreover, the Untied States and Japan have a well-established record of concluding such political deals, most notably the Root-Takahira Agreement or the Lansing-Ishii Agreement.  Ultimately, therefore, the status of these newly disclosed secret pacts depends on U.S. and Japanese intentions.  Did they intend these deals would give rise to international legal rights and obligations?  Or, was the expectation that permitting nuclear warships in Japanese ports or accessing U.S. bases in the event of a Korean conflict represented a political policy decision that would not trigger international legal rules, but allow significant political ramifications to provide sufficient impetus for compliance by both sides.  

Even assuming, however, these pacts were (a) written, and (b) intended to have legal force, some might challenge their treaty status given that they were by all accounts secret deals.  I’m not sure, however,that this argument has much modern salience.  Of course, Woodrow Wilson’s first of his famous fourteen points insisted that we have “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.”  And Article 102 of the U.N. Charter requires Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations.  However, as D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to have agreed with him based on its holdings in the jurisdictional phase of Qatar v. Bahrain).  Thus, I’m not sure the fact that these instruments were “secret” will deny them treaty status. The real problems lie, I think, with whether they were reduced to writing and the intentions of the parties.

Second, apart from the international legal status of these instruments, there’s the question of their status under U.S. law.  Under what authority did the United States conclude these deals?  If they were intended to be legally binding, were they done as executive agreements pursuant to the President’s foreign affairs or commander-in-chief powers? Or, was there some congressional authority that warrants considering them as congressional-executive agreements?  And even if they were not intended to be legally binding, I still think there are some interesting questions about the President’s constitutional authority to do these sorts of political commitments? 

The 1972 Case-Zablocki Act might provide some answers to these questions (at least as a matter of U.S. law).  It states in relevant part:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed.

Thus, the statute appears to accept (and regulate) both unwritten and secret international agreements.  The problem here, however, is that the relevant statutory provisions of the Case-Zablocki Act most likely post-date the secret deals with Japan.  The statute was not enacted until 1972 (and it has been amended several times since).  As a result, it probably does little to illuminate the contemporaneous views of either the Executive branch or Congress (if Congress even new about these deals at all).  But even without a statutorily required disclosure, I hope we still might get more information on the U.S. position.  Indeed, now that the Japanese have come clean, will the Executive branch clarify either how it concluded these secret pacts under U.S. law or what status, if any, they believed them to have under international law?

http://opiniojuris.org/2010/03/10/what-were-these-secret-pacts-with-japan/

7 Responses

  1. “allowing U.S. warships to carry nuclear weapons into Japanese ports”

    So there is a nuclear “don’t ask, don’t tell” arrangement with Japan. A treaty may require the US or Japan to do something. This, however, is an agreement to not do something (we don’t tell, they don’t ask, and we don’t unload the ships before they enter Japanese waters). It presumably can be canceled at any time, so it isn’t binding in any long term sense. Doesn’t an executive agreement to not do something obviously fall within the Commander in Chief and the Foreign Policy roles?

    Under what authority does the President not do something? Every day there must be a billion things he doesn’t do. Where is there a requirement that he get the approval of other branches for not doing all the things he doesn’t do. Is an agreement in writing not to do something somehow more official than an oral agreement, or a decision not to do it, or maybe even not doing it without even thinking about doing or not doing it.

    The US has an implied agreement with the UK that we will not go to war with them. It is not written down anywhere, but both sides understand this as clearly as any other unwritten agreement. It is, however, also an unspoken agreement as to be distinguished from the spoken but (maybe unwritten) agreement with Japan. Does speaking out loud what everyone knows to be true anyway generate the requirement for Congressional review, or just writing it down?

    Because if anyone did not know that those ships had nuclear weapons on them, well he would have been probably the last person on earth to not know it. Everyone in Japan knew it, but they were happy as long as it was not explicit. They knew the weapons were there. They knew we were not saying they were there. They knew the Japanese government was not asking. The only thing that is new is that there was an agreement of some sort to do and not do what everyone in the world knew was and was not being done.

    So exactly how secret were these agreements anyway? One is reminded of the quote from Lion in Winter: “I know. You know I know. I know you know I know. We know Henry knows, and Henry knows we know it.
    We’re a knowledgeable family.”

  2. Howard — I’m not sure I agree that U.S. agreements not to do something obviously fall within the purview of Executive Power.  The Genocide Convention contains a promise not to do something–genocide–but no one ever suggested that meant it fell solely within Executive Power (on the contrary it took the Senate four decades to give its advice and consent to that agreement).   Unlike you, I do think the existence of a writing and confidentiality are relevant criteria in evaluating both the international legal status of an agreement and the sources of its domestic authority.  You assume, for example, not only that everyone knew there was a deal in place for nuclear-armed ships’ access to Japanese ports, but also that it was terminable at will.  I’m not sure the two have to go together; just because we know of the existence of a confidential agreement does not mean we know its contents.   And, it’s the contents that will likely determine the extent of Congress’s interest.  Indeed, Congress enacted the Case-Zablocki Act in 1972 precisely because it wanted to know more about the nature and types of confidential agreements Kissinger had been making with other countries; agreements that involved both U.S. promises to do AND not do certain things.  

    Like you, however, I do agree that form may be overvalued when it comes to U.S. foreign affairs law.  I’ve argued elsewhere that it does not make sense to require such an extensive Congressional role for all international legal agreements no matter how insignificant, while at the same time suggesting Congress has no say in U.S. political commitments that may be tremendously significant (e.g, the creation of the Allies via the Atlantic Charter or the beginning of the end of the Cold War in the Helsinki Accords).  

    That said, the point of my post was to try and map these Japanese pacts onto existing categories of international and U.S. instruments.  As you know, international law does still impose key distinctions in terms of both the formation and effects of treaties vs. political agreements.  Similar categorization has occurred among Article II treaties, congressional-executive agreements, sole executive agreements and political commitments (your “implied agreement with the UK” in contrast represents an additional category that has garnered little study other than Charles Lipson’s seminal piece on why states conclude informal agreements and begs the question of whether it would qualify as an agreement at all).  Moreover, the relevance of a writing, confidentiality, and intent to these categorizations have all been (and continue to be) debated.  To the extent, therefore, that we may learn more about the nature and scope of these Japanese pacts, I do believe that they will have something useful to add to these on-going debates.   

  3. What about the Russian German Non-Aggression Pact in 1939?  That was an agreement not to do something (with of course the secret annex dividing up Poland which WAS to do something).  I would think the pact would have been considered a treaty in international law with binding obligations but I am sure there is literature calling this merely a political understanding.

    Why can’t a treaty be oral – granted VCLT does not apply but an exchange of understandings that are commitments on both sides could be oral and there is no reason the treaty has not to be secret if it is a Sole Executive Agreement.  One would expect that there would be some informal consultation with the relevant Senate and House committees and in a classified annex the authorizations might say something to speak to “assurances” without letting out the secret.  No biggie here in my opinion.
    Best,
    Ben

  4. Everyone knows, although the US will neither confirm nor deny it, that Predator UAVs are killing militants in Pakistan. Pakistan issues press releases against the strikes, but it is clear from their behavior and the lack of any formal protest that they acquiesce and may even be complicit in the attacks. There have even been some informal slip ups to suggest that the Predators are actually based inside Pakistan at a military base.

    Clearly there is some sort of an agreement here, but as with the Japanese agreements an essential element is that it remain unacknowledged. That doesn’t make it a secret. The world knows that some arrangement exists between the US and Pakistan on UAVs, just as the world knew in the ’70s that US nuclear armed ships docked in Japanese ports. However, for domestic political reasons the Pakistanis cannot formally admit to the Predator arrangement, just as the Japanese government could not formally allow what everyone knew it was implicitly condoning.

    Everyone knows what is happening.
    Everyone knows that there is some sort of agreement.
    It is impossible for the parties to admit formally what everyone knows to be the case.
    It is possible (politically) to continue the arrangement as long as it is not formally admitted.
    There is no particular reason to assume that there are any secret details. What you don’t see is exactly what you get.

    The destruction of the entire world was averted by the agreement that ended the Cuban Missile crisis. The key item that saved the peace was the informal agreement that the US would remove its obsolete missiles from Turkey provided that nobody ever had to admit that this was part of the deal. If it had been necessary to formally acknowledge every element of every agreement, well I guess we would have had to go to nuclear war and then we would all be dead. So this type of arrangement is not necessarily a bad thing.

  5. Agree with you Howard.  This is the grease that helps peace in relations between some states some times – even in war.
    Best,
    Ben

  6. To be clear, I’m not suggesting that you can’t have truly secret treaties or those that Howard describes where the existence of an agreement is known if not its details.  Similarly, there are plenty of examples of secret political commitments.  And, of course, we can all produce examples where any one of these categories produced a deal with significant implications. 

    None of that gets us very far, however, in trying to figure out which instruments fit within which category for both descriptive and predictive purposes.  Nor does it tell us the authority on which U.S. conclusion of such instruments rests.  I reject the idea that just because an agreement is unacknowledged (ala the UAV example Howard posits), we should dispense with any questions about the authority to conclude such an agreement under international or U.S. law.  Indeed, whether or not it’s part of the public record, I assume that U.S. lawyers asked those very questions in doing any deals with Japan or Pakistan.  And I’d like to think it’s equally appropriate for scholars to consider and assess possible authorities and rationales as well. 

  7. The subjects of the three “secret” agreements with Japan:
      – access to Japanese ports by warships carrying nuclear weapons;
      – use of bases in Japan in event of renewed Korean hostilities; and,
      – clean-up agreements for Okinawa bases
    all seem to me to fall fairly within the scope of being executory details of the U.S.-Japan Mutual Defense Treaty.  So doesn’t it make sense to consider these to fairly be “Article II Treaty Agreements?”  As a fallback they could logically also be described as “sole executive agreements” since the actual movement of U.S. military forces and the settlement of claims with foreign nations both fall within even a very conservative assessment of recognized presidential powers.  So I don’t see any real difficulty in locating constitutional authority for them. 

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