10 Mar What were these “Secret Pacts” with Japan?
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?