The Kurile Island Conflict

Contents

Abstract

1. Background Information
1.1 History of Agreements and Treaties
1.2 Reason for Transferral of the Issue to the Permanent Court of Arbitration
1.3 Procedural aspects

2. Arguments to the Dispute over the Kurile Islands Conflict
2.1 Japan
2.2 USSR

3. Award of Tribunal

4. Separate opinion of Judge Dr. Nisuke Ando, LL. M.

Sources

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

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.

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