Тэкс.
Ohene, Judith
Studiengang: MES, 2. Semester
10. August 2004
The Kurile Island Conflict
Europa-Universität Viadrina
Seminar: International Judicial Systems
SS 2004
Abstract
In this paper the Kurile Islands Conflict between the Union of Soviet Socialist Republics and Japan dating from the 1950s is referred to the Permanent Court of Arbitration (PCA), thus representing a virtual case.
Background information to the conflict is presented in the first part of the paper, followed by the arguments supporting the cases for the USSR and Japan respectively. Both sides are described in the second chapter. The award of the tribunal of the PCA is dealt with in the third chapter, and a separate opinion of one of the judges in a short fourth chapter.
To avoid confusion the date of proceedings before the PCA is August 2004, therefore the Russian Federation is presenting the side of the former USSR.
The Kurile Island Conflict
Contents
1 Background Information 1
1.1 History of Agreements and Treaties. 2
1.2 Reason for Transferral of the Issue to the Permanent Court of Arbitration. 4
1.3 Procedural aspects 4
2 Arguments to the Dispute over the Kurile Islands Conflict 5
2.1 Japan 5
2.2 USSR 8
3 Award of Tribunal 11
4 Separate opinion of Judge Dr. Nisuke Ando, LL. M. 13
Sources a
1 Background Information
Since the Russian Federation is the accessor to the former Union of Soviet Socialist Republics (USSR) and thereby inheriting all state`s contracts, the USSR is party to the Kurile Islands Conflict. The history of the Kurile Island conflict concerns the territorial right to admininister and claim as national territory the South Kurile Islands, and more exactly the four islands of Etorofu (in Russian named Iturup), Kunashiri, Shikotan and Habomai. These four islands are referred to by Japanese official language as part of the Northern Territory. To clarify, the (Japanese) Northern Territory consists of the islands of Sakhalin plus adjacent islands, and Etorofu, Kunashiri, Shikotan and Habomai Islands.
The islands of Broutona, Chirpoi, Brat Chitpoev, Urupu, Etorofu, Kunashiri, Shikotan and Habomai form the Southern Kurile Islands.The islands of Lovushki, Raikoke, Matua, Rasshua, Ushishir, Ketoi and Simushir form the Central Kurile Islands. The islands of Alaid, Shumshu, Paramushir, Antsiferova, Makanrushi, Onekotan, Kharimkotan, Chirinkotan, Ekarma and Shiashkotan form the Northern Kurile Islands.
Subsequently the Northern, Central and part of the Southern Kurile Islands are referred to as Northern Kurile Islands throughout this text, as the distinction between Northern and Central is of geological interest only and does not influence the political issue of the Kurile Island Conflict. In this context, the Northern Kurile Islands include the islands of Urupu up to Alaid.)
1.1 History of Agreements and Treaties
The historical context dates back to the 17th century, culminating in the 1950s, since when endeavours to normalise relations between the two states have been carried out. According to historical data, in 1644 the “central government of Tokyo asked each lord to send a map of their own lands in order to make up the complete map of Japan. Lord Matsumae sent a map including the whole Sakhalin, Kuril Islands and Kamchatka peninsula. This map, called Shoho-okuni-ezu is the oldest existing map that draws this part of the world” (see Time Table of Sakhalin Island).
In 1855, the Treaty on Commerce, Navigation and Delimination (referred to as the Shimoda Treaty), providing for national boundaries between Russia and Japan was signed. Shimoda Treaty, Article 2 assigns the Southern Kurile Islands to Japan and the Northern Kurile Islands to Russia. The treaty also provides for historical precedent regarding the island of Sakhalin. The latter means joint administration by Japan and Russia.
In 1875, the Treaty of Exchange of Sakhalin for the Kurile Islands (also referred to as St. Petersburg Treaty) provided for the Kurile Islands` assignation to Japan and Sakhalin`s to Russia.
In 1905, the Treaty of Portsmouth, Article 9 and Annex to Article 9 provided for a split of the island of Sakhalin along the 50th degree latitude with the Northern part of Sakhalin belonging to Russia and the Southern part to Japan. The Treaty of Portsmouth did not involve the Kurile Islands.
The Potsdam Declaration on July 26th, 1945 was agreed on by the Allied Forces Great Britain, the USA and the USSR. It organised the occupation of territories through Allied Forces, thus Sakhalin and the Northern Kurile Islands being occupied by the USSR. Three weeks later, on August 14th, 1945, the Potsdam Declaration was accepted by Japan when admitting defeat. Between August 18th and 27th, 1945 the USSR moved occupation forces from Shimushu to Urupu which was in accord with the Potsdam Declaration.
On September 3rd, 1945, the USSR also occupied Shikotan, Habomai, Etorofu and Kunashiri forming the Southern Kurile Islands when exploiting the absence of military forces of the occupying Allied Forces represented by the US.
The San Francisco Peace Treaty (also referred to as the Treaty of Peace with Japan) of August 9th, 1951, Article 2 (in force since April 28th, 1952) stipulates Japan`s renunciation of sovereignty for Sakhalin Island South of the 50th degree latitude and the Kurile Islands as held consequently to the Treaty of Portsmouth.
The issue is thus arising with interpretation of the San Francisco Peace Treaty as firstly, the USSR did neither sign nor ratify the Treaty, leaving the USSR unable to claim the Northern part of Sakhalin and the Kurile Islands on this basis. Secondly the Treaty of Portsmouth did not concern the Kurile Islands, yet refers to a state of affairs in 1875 when the Treaty of Exchange of Sakhalin for the Kurile Islands provided for the Kurile Islands` assignation to Japan.
The Soviet-Japan Joint Declaration of 1956, Article 9 assigns the following territory to the USSR and Japan respectively: Shikotan and Habomai belong to Japan, Etorufu and Kunashiri to the USSR. This arrangement will come into force with the signing of a peace treaty between Japan and the then USSR. The question of the Northern Kurile Islands does not arise, as Japan does not intend to lay claim to any of the territory renounced as stated in the Peace Treaty of San Francisco. Consequently, this limits the Kurile Islands Conflict to Etorofu, Kunashiri, Shikotan and Habomai Islands, four islands in the South Kuriles and referred to as part of the Northern Territory by Japan.
1.2 Reason for Transferral of the Issue to the Permanent Court of Arbitration
The reason for transferring the case of the Kurile Islands, an issue between the then Union of Soviet Socialist Republics and Japan are the following:
Japan and the USSR both signed the Hague Conventions on the Establishment of a Permanent Court of Arbitration, respectively Japan in 1900 and 1912, and USSR in 1955.
Furthermore, both accept the UN Charter, Articles 55 and 56 as stated in the opening paragraphs of the Treaty of San Francisco of 1951 (and in force since April 28th, 1952). Although the USSR did not sign the Treaty of San Francisco, both parties respect the cited UN Charter, Articles 55 and 56.
Additionally, as stated in the San Francisco Peace Treaty, Article 22, any disputes concerning the interpretation of the execution of the Treaty of San Francisco can – at request of any party thereto - be referred to the international Court of Justice. The spirit of this Article is present in the future handling of territorial conflicts between these two states, although the USSR never signed the Treaty of San Francisco.
Japan as well as the USSR wish for an expeditious resolution of the issue, to further their mutual agreement on a process of normalisation between the two states, thereby opening the dialogue on joint efforts for economic development and joint political action in the South Pacific Area.
1.3 Procedural aspects
The Russian Federation and Japan mutually agree to choose the judges Mr. Miguel J. Moreno acting as President, Dr. Nisuke Ando, LL. M. from Japan and Dr. Kamil Abdulovich Bekiashev from the Russian Federation.
Both states also settle on the proffered documentation supporting each party`s line of argument respectively which is listed according to its relevance for arguments as found in the text and the sources.
2 Arguments to the Dispute over the Kurile Islands Conflict
The following chapter presents arguments for the rightful claim of the Southern Kurile Islands of Etorufu, Kunashiri, Shikotan and Habomai by Japan and the USSR respectively. As indicated in the previous chapter, the conflict concerns the issue of the four islands mentioned above, and both parties are interested in a swift settlement of the dispute.
2.1 Japan
Up to 1905 the disputed Northern Territory remained in Japanese sovereignty with the exception of the Northern part of Sakhalin. The latter was jointly administrated in 1855, later the Southern part of the island was exchanged against the Northern Kuriles and reclaimed in 1905 as provided for in the Treaty of Portsmouth. At no time until 1945 has the Northern Territory been disputed and claimed as Russian.
Violating the Neutrality Pact of 1941 valid for five years between Japan and USSR, the USSR invaded Japan on August 9th, 1945. Three weeks later, on August 14th, 1945, the Potsdam Declaration was accepted by Japan when admitting defeat. The Potsdam Declaration organised the occupation of territories through Allied Forces, thus Sakhalin and the Kurile Islands were occupied by the USSR. Between August 18th and 27th, 1945 the USSR moved occupation forces from Shimushu to Urupu which was in accord with the Potsdam Declaration. The Potsdam Declaration, Annex II states that the “terms of the Cairo Declaration shall be carried out”. The latter proclaims that “They [the Three Great Allies of USA, USSR and Great Britain] covet no gain for themselves and have no thought of territorial expansion”.
On September 3rd, 1945, the USSR also occupied Shikotan, Habomai, Etorofu and Kunashiri which form part of the Southern Kurile Islands when exploiting the absence of military forces of the occupying Allied Forces represented by the US which constituted a breach of regulations layed down in the Potsdam Declaration and runs counter the proclamation mentioned above in the Cairo Declaration. In violation of the Hague Convention on Laws and Customs of War on Land (1907), the USSR furthermore tried to produce legal norms when issuing the Decree of the Presidium of the Supreme Soviet on February 2nd, 1946 to “create on the territory of South Sakhalin and the Kurile Islands the South Sakhalin province ...”. Although this legal act on behalf of Stalin never achieved international recognition, it claimed the Southern Kurile Islands as part of the USSR`s sovereignty. Furthermore, this legal act also constitutes a breach of international law on the part of the USSR, thereby committing an international delict: According to international law, each international wrongful act must be punished if organs of state act against international law. Organs of a state perpetrated a crime, in this case military forces as official organs of the USSR violating another state`s interests, namely Japanese interests, by invading the Southern Kuriles and the Presidium of the Supreme Soviet as official organ laying legal claim to the Kurile Islands.
The forcible deportation of 17000 Japanese residents on the Southern Kurile Islands and the subsequent settlement of Soviet citizens, executed by the USSR between 1947 and 1949 violated another international regulation, namely to deport indigenous population in absence of military requirements and to form settlements on occupied territories.
The San Francisco Peace Treaty, Article 2c holds the renunciation clause of Japanese territory, that is” all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of 5 September 1905”. However, this did not apply to the four islands of Etorofu, Kunashiri, Shikotan, Habomai.
The Allied Forces were aware of this, as can be seen in the Declaration of the United States Senate included with the Ratification of the Treaty of Peace with Japan, issued April 28th, 1952: “As part of such advice and consent the Senate states that nothing the treaty [San Francisco Peace Treaty] contains is deemed to diminish or prejudice, in favor of the Soviet Union, the right, title, and interest of Japan, or the Allied Powers as defined in said treaty, in and to South Sakhalin and its adjacent islands, the Kurile Islands, the Habomai Islands, the Island of Shikotan, or any other territory, rights, or interests possessed by Japan on December 7, 1941, or to confer any right, title, or benefit therein or thereto on the Soviet Union”. El Salvadore even went so far as openly neither accepting nor ratifying “the commitments which the other nations may have contracted with respect to the transference or final disposition of those territories enumerated in Article 2 of the Treaty of Peace with Japan, in all those cases in which the freely expressed will of the affected populations was not consulted and respected. This reservation applies to the transference of the Kurile Islands, a part of the island of Sakhalin”.
The San Francisco Peace Treaty, Article 25 defines the Allied Forces as “the States at war with Japan, […] provided that in each case the State concerned has signed and ratified the Treaty. […] the present Treaty shall not confer any rights, titles or benefits on any State which is not an Allied Power as herein defined; nor shall any right, title or interest of Japan be deemed to be diminished or prejudiced by any provision of the Treaty in favour of a State which is not an Allied Power as so defined”. As the USSR did neither sign nor ratify the treaty, there arises another issue as they lay claim to the Southern Kurile Islands which would constitute a benefit as cited in Article 25.
According to the Soviet-Japan Joint Declaration of 1956, Article 9, although the islands of Shikotan and Habomai would become Japanese sovereignty, this would not resolve the issue of Etorufu and Kunashiri. This regulation would take force with the conclusion of a peace treaty with the USSR. However, the matter of a future peace treaty is likely to be deferred to the future, thus pending the issue of the four islands.
To conclude, Japan transfers this issue to the Permanent Court of Arbitration, hoping to have succinctly stated the views and opinions held by Japan, and further hoping to have argued for Japanese sovereignty over the islands of Etorufu, Kunashiri, Shikotan and Habomai.
2.2 USSR
The USSR entered into the war against Japan due to the Yalta Agreement of February 11th , 1945. The Announcement from the Soviet Government on the Denunciation of the Neutrality Pact (1945) was communicated and provided the reason to the end of the Neutrality Pact with Japan form 1941: “The Neutrality Pact between Japan and the Soviet Union was signed on April 13, 1941, that is before the German attack on the USSR and before the war between Japan on one hand, and Great Britain and the United States of America on the other. The situation has drastically changed since then. Japan, an ally of Germany, helps Germany with its war against the USSR. Moreover, Japan is at war with the USA and Great Britain who are allies of the USSR. Under these circumstances, the Neutrality Pact between Japan and the USSR has lost its significance, and the extension of the Pact has become impossible. As a result, according to Article 3 of the said Pact that provides for the right of denunciation one year before the end of the five-year period of the validity of the Pact, the Soviet Government hereby announces to the Government of Japan its desire not to extend the Pact from April next year.” Insofar the pre-termination of the Neutrality Pact with Japan from 1941 does not constitute a violation of the same.
The occupation of the North Kurile Islands and Sakhalin through the USSR was in accord with the Potsdam Declaration. Between August 18th and 27th, 1945 the USSR moved military forces from Shimushu to Urupu. Furthermore, the Protocol of the Yalta Conference of February 11th, 1945 under 2a very clearly states that “The southern part of Sakhalin as well as the islands adjacent to it shall be returned to the Soviet Union”; also under 3 “The Kurile Islands shall be handed over to the Soviet Union”. In the absence of military presence of USA forces on the Central and South Kuriles, the USSR moved to fulfil the aim of occupying Japanese territory which was in the spirit of the Potsdam Declaration. According to the Potsdam Declaration, Annex II, 8 „the terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine”. In further concordance, the Cairo Declaration states that Japan will also be expelled from all other territories which she has taken by violence and greed. The USSR did not act contrary to the proclamation to be found in the same Cairo Declaration: “They [The Three Great Allies USA, Great Britain and the USSR] covet no gain for themselves and have no thought of territorial expansion”. Indeed had Japan with the Treaty of Portsmouth sealed the forceful occupation of South Sakhalin, thus ending the Russian-Japanese war as the victorious power.
The Decree of the Presidium of the Supreme Soviet on February 2nd, 1946 constituted a legal norm at least within the USSR. The Russian Federation as accessor to the rights and regulations of the former USSR still abides by this Decree. This is supported by the San Francisco Peace Treaty of 1951, Article 2c: “Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of 5 September 1905”. This provides another basis for the claim of Sakhalin and all the Kurile Islands.
The USSR were conscious that the USA changed their minds concerning this regulation of the territory in the South Pacific, the political sway in the 1950s hardening relations between the Western powers and the USSR. Insofar the Declaration of the United States Senate included with the Ratification of the Treaty of Peace with Japan, issued April 28th, 1952 can be considered a political opinion rather than a valid adjustment to the San Francisco Peace Treaty. The Declarations by the Government of El Salvador included with the Ratification of the Treaty of Peace with Japan, issued May 6th,1952 are regarded in the same light.
Additionally, in the Cairo Declaration which has not become invalid with the San Francisco Peace Treaty, can be found that the “Heads of the three Great Powers have agreed that these claims of the Union of Soviet Socialist Republics shall be unquestionably fulfilled after Japan has been defeated”, meaning the claiming of the island of Sakhalin and the Kurile Islands.
In 1956 another effort to normalise relations between Japan and the USSR resulted in the Joint Declaration of Japan and the USSR. Paragraph 9 states that “Japan and the Union of Soviet Socialist Republics agree to continue, after the restoration of normal diplomatic relations between Japan and the Union of Soviet Socialist Republics, negotiations for the conclusion of a peace treaty. The Union of Soviet Socialist Republics, desiring to meet the wishes of Japan and taking into consideration the interests of Japan, agrees to hand over to Japan the Habomai Islands and the island of Shikotan. However, the actual handing over the these islands to Japan shall take place after the conclusion of a peace treaty between Japan and the Union of Soviet Socialist Republics”. This has been the intention of the USSR which is still pursued by the Russian Federation. The question of transferring sovereignty of the islands of Etorufu and Kunashiri does not arise.
An official apology is offered on behalf of the former USSR for the deportation of the 17000 residents on the Southern Kurile Islands. It is obvious that this crime perpetrated by the USSR violated international norms as provided for in the Hague Convention on Laws and Customs of War on Land (1899), and is sincerely regretted by the Russian Federation.
The Russian Federation as successor of the USSR hopes to have proven the case that the sovereignty of the four disputed islands of Etorofu, Kunashiri, Shikotan and Habomai lies with the Russian Federation. The inclination to conclude a Peace Treaty with Japan and then relinquishing the islands of Shikotan and Habomai is herewith officially proclaimed once again.
3 Award of Tribunal
The Permanent Court of Arbitration is acting as Registry in an arbitration between Japan and the Russian Federation, relating to the Kurile Island Conflict.
The arbitral tribunal is composed of:
Mr. Miguel J. Moreno, (President)
Dr. Nisuke Ando, LL. M.
Dr. Kamil Abdulovich Bekiashev
In view of the conciliatory tendencies between the disputing states, culminating in the Joint Declaration of Japan and the USSR of 1956, the tribunal regards this as the guiding spirit when considering the claims and supporting documents of the Kurile Islands Conflict. When attempting an evaluation of the changing sovereignty of the four disputed islands of Etorufu, Kunashiri, Shikotan and Habomai and Sakhalin, the following chart has been worked out (see Chart of Sovereignty and legal Basis for Kurile Islands Conflict). The Decree of the Presidium of the USSR Supreme Soviet on the Creation of the South-Sakhalin Province of 1946 has not been taken into account as it does not constitute a treaty or contract between states, yet merely has the character of a unilateral proclamation.
As can be seen in the Chart, the sovereignty over the four islands of Etorufu, Kunashiri, Shikotan and Habomai changed terminally with the Yalta Declaration of 1945. The arguments of the USSR benefiting from the San Francisco Peace Treaty in 1951 are not valid on both sides, as they never signed the Peace Treaty. This leaves us with the Joint Declaration of Japan and the USSR, paragraph 9 which has the advantage of constituting a legal basis which both disputing states intended to serve as conciliatory instrument. Regarding this document as the central piece of information, the Tribunal resolves to assign the islands exactly as suggested:
The Russian Federation is assigned the Northern and Central Kuriles, Sakhalin and the islands of Etorofu and Kunashiri, Japan is assigned the islands of Shikotan and Habomai, thereby gaining territory in expansion of the stipulations of the Potsdam Declaration, Annex II, 8 (“the terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku” which means a limitation of Japan to its four main islands) and the San Francisco Peace Treaty of 1951, Article 2c which holds the renunciation clause of Japan.
The Tribunal welcomes the offer of the Russian Federation of an official apology regarding the deportation of 17000 residents on the Southern Kurile Islands. The deportation did in fact create a breach of international law as pointed out in the Japanese arguments, violating the Hague Convention on Laws and Customs of War on Land (1905). The deported residents were not to be regarded as Prisoners of War. However, the Permanent Court of Arbitration deals with the resolution of international torts and disputes, not the pursuit and punishment of international crimes. Nevertheless, an official apology from the Russian Federation to Japan on behalf of the former USSR forms part of the award.
The Tribunal is aware of the award representing a challenge to both states in the matter of communication to their respective citizens. However, the Tribunal remains confident that the Peace Treaty between the Russian Federation and Japan will be concluded in the very near future, as the Kurile Island Conflict does not create an obstacle any more on the path to mutual agreement and understanding.
4 Separate opinion of Judge Dr. Nisuke Ando, LL. M.
Wishing it to be understood that I share and abide by the views vented in the deliberations preceding the adoption of the award, and also respect the final award, I wish, however, to register a different opinion on the Kurile Island Conflict.
The documents supporting the respective cases lead to a different reading when the principle stated in the Cairo Declaration to “covet no gain for themselves [the Great Allies] and have no thought of territorial expansion” is applied. The USSR substantially gained in the various treaties, benefiting from the weak Japanese position in the aftermath of World War II. Yet it also very clear that the possession of the Kurile Islands and Sakhalin were regarded as a prerequisite to the USSR entering the war against Japan, consequently the Allied States did not actively refuse the takeover of Japanese territory. Placing this principle alongside the official intention of the Russian Federation and Japan to resolve the conflict and create a Peace Treaty, another option for the four disputed islands of Etorufu, Kunashiri, Shikotan and Habomai suggests joint administration of these islands by both states, thus furthering peaceful development and mutual economic interests.
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