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00166915.Pdf Kobe University Repository : Kernel Surrender, Occupation, and Private Property in International Law (1) : タイトル An Evaluation of Some United States Practices during the Occupation Title of Surrendered Japan 著者 Ando, Nisuke Author(s) 掲載誌・巻号・ページ Kobe University law review,20:1-60 Citation 刊行日 1986 Issue date 資源タイプ Departmental Bulletin Paper / 紀要論文 Resource Type 版区分 publisher Resource Version 権利 Rights DOI JaLCDOI 10.24546/00166915 URL http://www.lib.kobe-u.ac.jp/handle_kernel/00166915 PDF issue: 2021-10-09 SURRENDER, OCCUPATION, AND PRIVATE PROPERTY IN INTERNATIONAL LAW (1)* An Evaluation of Some United States Practices during the Occupation of Surrendered Japan Nisuke ANOO* CHAPTER 1: INTRODUCTION CHAPTER 2: THE JAPANESE SURRENDER, THE U. S. OCCUPATION MEASURES, AND THEIR IMPACT ON JAPANESE PRIVATE PROPERTY Section 1. The Japanese Surrender: The Potsdam Declaration and the Instrument of Surrender Section 2. The Initial Objectives and Implementation of the U. S. Occupation Measures Section 3. Some Measures Affecting Private Property of the Japanese i ) The Purge of Militarists and Ultranationalists ii) The Dissolution of Zaibatsu iii) The Land Reform Section 4. The Effects of These Measures and Subsequent Development CHAPTER 3: THE LEGAL BASIS OF THE MEASURES IN QUESTION CHAPTER 4: THE APPLICABILITY OF THE HAGUE REGULATIONS TO A POST-SURRENDER OCCUPATION Section 1. The Hague Regulations and Their Applicability to a Post-Hostilities Occupation i ) The Provisions of the Hague Regulations concerning Private Enemy Property ii) The Applicability of the Hague Regulations to a Post-Hostilities Occupation * Professor of International Law, Faculty of Law, Kobe University, Japan; Member, Human Rights Committee (International Covenant on Civil and Political Rights), 1987-1990. * This thesis was originally submitted to the Fletcher School of Law and Diplomacy (Medford, Mas~ sachusetts, U. S. A. ) in partial fulfilment of the requirements for the Degree of Doctor of Phi­ losophy. Since its submission some time has passed and the author tried to update materials where available and necessary. The author would like to express his hearty gratitude to Professor Leo Gross of the Fletcher School and the late Professor Richard R. Baxter of the Harvard Law School for their generous counsel in the preparation of the thesis. 2 Section 2. The Axis Surrender and the Ensuing Occupation In Practice i ) Italy ii) The East European States iii) Germany (in this VOLUME) Section 3. The Legal Nature of an Unconditional Surrender Section 4. The Applicability of the Hague Regulations to a Post- Surrender Occupation i ) Some Qualifications of the Problem ii) Italy and the East European States iii) Germany iv) Tentative Conclusions CHAPTER 5: THE U. S. PRACTICE IN JAPAN AND INTER­ NATIONAL LAW Section 1. The Similarity and Difference between the Japanese and the German Situations i ) The Legal Nature of the Japanese Surrender: The Similarity of the Japanese and the German Situations ii) The Potsdam Declaration and the Instrument of Surrender as the Allied Commitment regarding Post-Surrender Treatment of Japan: The Difference between the Japanese and the German Situations iii) The Legal Basis and Characteristics of the U. S. Occupation of Japan Section 2. The Applicability of the Hague Regulations to the U. S. Occupation of Japan Section 3. An Evaluation of the U. S. Practice in Japan i) The U. S. Practice in the Light of the Hague Regulations ii) The U. S. Practice in the Light of the Potsdam Declaration and the Instrument of Surrender iii) The Responsibility of the Occupant and the Japanese Government Section 4. A Settlement of the Problem by the Treaty of Peace with Japan and the Remedy for Damages to the Japanese Private Property CHAPTER 6: CONCLUSION APPENDIX I. The Potsdam Declaration APPENDIX II. The Instrument of Surrender of Japan 3 CHAPTER 1 INTRODUCTION The theme of the present thesis is an evaluation, from the standpoint of international law, of some of the Allied, particularly United States, treatment of Japanese private property during the occupation of Japan subsequent to the cessation of hostilities of the Second World War. The expression "the United States treatment" is preferred, because the Allied occupation of Japan was, in substance, an American undertaking. During the nearly seven years of occupation, the United States, as the occupant, took various occupation measures, mainly for the purpose of demilitarizing and democratizing the political, economic, and social system of the defeated state; and some of these measures caused extensive damage to private property of a number of Japanese. To what extent a military occupant of enemy territory may interfere with private property of the enemy civilians therein is a longstanding problem in international law. The present thesis will add to the study of this general problem. The present thesis, however, is designed to be not so much a comprehensive as a specific study of the subject. It does not cover all but only a few particular U. S. occupation measures. The main concern of the present thesis is to evaluate the international legality of those occupation measures which the occupant adopted to demilitarize and democratize the Japanese society and which, in the course of their implementation, greatly affected the private property of some Japanese people. These measures differed from the ordinary or classic case of an occupant's interference with private enemy property-the requisitioning or seizure of such property for the use of occupying forces-in that the property involved was not used by the occupant but was merely transferred from one group of Japanese to another. Whether and to what extent these particular occupation measures should be justified in international law is the main theme of the present thesis. The legality of the ordinary U. S. occupation measures will be dealt with only to the extent that their study will help the understanding of the main theme. Nevertheless, in evaluating the international legality of any of the U. S. treatment of Japanese private property, two specific factors must be taken into consideration; that is, the legal nature of the U. S. occupation of Japan and the provisions of Section m of the Hague Regulations of 1907. First, the U. S. occupation of Japan was certainly an occupation of enemy territory by armed forces. It took place when the formal state of war was still continuing between the two states. But the hostilities of the Second World War had been terminated by the Japanese surrender before the U. S. forces proceeded to occupy the main islands of Japan, and in this sense, the U. S. occupation of Japan was different from so-called "belligerent occupation" of enemy territory which occurs during hostilities when one belligerent invades and occupies part or whole of the territory of the other. 4 Furthermore, it must not be overlooked that the Japanese surrender was termed unconditional surrender. The U. S. occupation of Japan was, therefore, a post-hostilities occupation of enemy territory by military forces, resulting from an unconditional surrender. Whether and how the fact that the occupation had taken place after the cessation of hostilities and had resulted from an unconditional surrender affected the occupant's treatment of private enemy property must be thoroughly studied. Second, Section ill of the Hague Regulations of 1907 consists of fifteen articles, which deal with military occupation of enemy territory. The Regulations form an integral part of the Hague Convention respecting the Laws and Usages of War on Land, and their provisions are regarded as declaratory of rules of customary or general international law on the subject. On the one hand, it is admitted that, so far as a military occupant's treatment of private enemy property is concerned, there has come into existence in international law no set of rules other than those contained in the Hague Regulations. On the other hand, the type of occupation envisaged by the draftsmen of the Regulations is belligerent occupation. Thus, whether and to what extent the provisions of the Hague Regulations concerning an occupant's treatment of private enemy property are appliJble to or relevant to an occupant's treatment of private enemy prop~rty under other type of occupation requires careful examination. These consideratid~s lead to the central problems which the present thesis must resolve: Do the provisions of the Hague Regulations apply to and have any relevance to a post-hostilities occupation of enemy territory resulting from an unconditional surrender, in general, and the U. S. occupation of Japan, in particular? In order to solve these problems, the following topics will be dealt with in the present thesis. At the outset, in Chapter 2, facts bearing on the Japanese surrender, some of the U. S. occupation measures, and their impact on Japanese private property will be studied as th~ basic material on which the present thesis is to develop its analysis. Besides some of the ordinary U. S. occupation measures, which are to be reviewed summarily, the purge of militarists and ultranationalists, the Zaibatsu dissolution, and the land reform, representing the demilitarization and democratization measures adopted by the occupant, will be studied in detail. Next in Chapter 3, the legal basis of these occupation measures will be examined. What was the U. S. or occupant's view of this matter? Was there any contending view on the part of the Japanese? An appraisal of these views will require a clarification of general rules of international law concerning a surrender, an occupation, and an occupant's treatment of private enemy property. Therefore, in Chapter 4, the central problem of the present thesis will be analyzed - Whether and how an unconditional surrender affects an occupant's rights and duties with respect to private enemy property. Past practice, judicial precedents, and legal theories must be scrutinized. Then, in the light of the analysis of this general problem, the U.
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