The author analyzes the illegality of Japan’s territorial claims in relation to the Kuril Islands. The “Crimean Agreement of the Three Great Powers on Far Eastern Issues” and the “Potsdam Declaration” are integral elements of international law and cannot be interpreted in a vacuum and must be considered as part of a broader legal system.
In 1875, given the extremely important importance of the Sakhalin Island for Russia, a Treaty on the exchange of part of the Sakhalin Island for the Kuril Islands was signed in St. Petersburg. Article 2 of the Treaty states: “In return for the cession of rights to Russia on the island of Sakhalin… the All-Russian Emperor cedes… to the Japanese Emperor a group of islands called the Kuril Islands… This group includes the following 18 islands: 1) Shumshu, 2) Alaid. .. 18) Urup, so the border line between the Russian and Japanese empires in these waters will pass through the strait located between Cape Lopatka of the Kamchatka Peninsula and Shumshu Island.” (Collection of current treatises, conventions and agreements concluded by Russia with other states. T. 1. P. 393)
Significant changes to the issue of statehood of the Kuril Islands and Sakhalin were made by the Russo-Japanese War of 1904-1905, initiated by Japan, which violated a number of treaties with Russia that proclaimed “permanent peace and sincere friendship.” The war ended with the defeat of Russia and the annexation of South Sakhalin. On September 5, 1905, the enslaving Portsmouth Peace Treaty was signed, formalizing the aforementioned seizure (Collection of treaties of Russia with other states 1856 — 1917. M., 1952. pp. 338 — 341).
At the same time, Article 12 of the Treaty determined that the validity of all previously concluded treaties between Russia and Japan was “abolished… by the war” (Collection of treaties between Russia and other states 1856 — 1917, pp. 338 – 341). Treaties securing the ownership of the Kuril Islands by Japan were annulled — the Shimoda Treaty on Trade and Borders in 1855, the St. Petersburg Treaty on the exchange of part of Sakhalin Island for the Kuril Islands in 1875. The rejection of South Sakhalin led to the loss of the very meaning of the Treaty of 1875, according to which Japan owned the Kuril Islands in exchange for Sakhalin. The Soviet Union had grounds to demand the return of not only South Sakhalin, but also the Kuril Islands, which happened after the defeat of militaristic Japan and the end of World War II.
Further, having concluded a “Neutrality Pact” with the Soviet Union on April 13, 1941, Japan freed its hands in the Asia-Pacific region and, without declaring war, attacked the American naval base at Pearl Harbor on December 7, 1941, starting the Pacific War against the USSR’s allies in the anti-Hitler coalition, the USA and Great Britain. The question of the political conditions under which the USSR agreed to enter the war against Japan was resolved during the Crimean Conference of the leaders of the three allied powers, held on February 4-11, 1945 in Yalta. The “Crimean Agreement of the Three Great Powers on Far East Issues” was signed on February 11, 1945 by F. Roosevelt, W. Churchill and I. Stalin and states: “The leaders of the three great powers — the Soviet Union, the United States of America and Great Britain — agreed that , that two or three months after the surrender of Germany and the end of the war in Europe, the Soviet Union will enter the war against Japan on the side of the Allies, subject to… 2) restoration of the rights belonging to Russia violated by the treacherous attack of Japan in 1904, namely: a ) return to the Soviet Union the southern part of the island. Sakhalin and all the adjacent islands… 3) transfer of the Kuril Islands to the Soviet Union…”
The heads of government of the three great powers agreed that these claims of the Soviet Union should be unconditionally satisfied after the victory over Japan (The Soviet Union at international conferences during the Great Patriotic War of 1941 — 1945: Collection of documents. M., 1979. Vol. IV . Crimean conference of the leaders of the three allied powers — the USSR, the USA and Great Britain (February 4 — 11, 1945) P. 273.).
Thus, the Allies formulated the conditions under which the Soviet Union would enter the war with Japan, and officially confirmed that these conditions would be met “unconditionally.”
It is immediately necessary to note the legal force of this document in order to eliminate discrepancies.
The International Court of Justice has confirmed that an act called a declaration (agreement) can be an international treaty. In the South West Africa decision, the Court determined that the fact that the mandate agreement is referred to in the text as a declaration does not affect its legal nature (ICJ. Reports. 1962. P. 331.).
While encouraging Japan to make territorial claims, the United States formulated the necessary arguments for this. Thus, a note sent to the Japanese government on September 7, 1956 stated: “The United States views the “Crimean Agreement” simply as a declaration of the common goals of the countries participating in the Yalta Conference, and not as a final decision made by these powers, or a decision having any -legal force for the transfer of territory» (International relations in the Far East in the post-war years. M., 1987. T. 1. P. 226.).
Having fulfilled its allied obligations, the USSR had the right to receive the Kuril Islands without any additional consent of the allies.
This argument can be supported by the principle of “external consistency”, according to which “a treaty cannot be interpreted in a vacuum, but must be considered as part of a wider legal system” (ECtHR Judgment of 12/15/2016 in the case of Khlaifia and Others v. Italy. “Along with taken into account in context:… (c) any relevant rules of international law applicable in the relations between the participants”, and in particular those relating to the international protection of human rights (the collective guarantee of the three great powers against aggressor states), as well as the relevant principles of international law.
In addition, the European Court of Human Rights classifies such declarations and agreements, as well as codifying acts during the Second World War and immediately after it, as principles — constituent elements of international law (ECHR Ruling of 17.05.2010 in the case “Kononov v. Latvia”) .
In July-August 1945, the Potsdam Conference of the leaders of the three Allied powers took place in Berlin. On July 26, 1945, a statement was published by the heads of government of the United States, Great Britain and China (Potsdam Declaration), which contained the terms of Japan’s surrender. The Soviet Union did not participate in the adoption of the Declaration, since at that time it was not yet in a state of war with Japan. Paragraph 8 of the Potsdam Declaration stated: “The terms of the Cairo Declaration will be fulfilled and Japanese sovereignty will be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such smaller islands as we designate.” Paragraph 13 stated: “We call on the Government of Japan to proclaim now the unconditional surrender of all Japanese armed forces and to give due and sufficient assurances of their good intentions in this matter. Otherwise, Japan will face a quick and complete defeat.”
The Soviet Union’s adherence to the Potsdam Declaration meant its adherence to the Cairo Declaration of 1943, which noted that the Allied goal «is to dispossess Japan of all the islands in the Pacific that she has captured or occupied since the outbreak of World War I in 1914.» ..Japan will also be expelled from all other territories which she has seized by force and as a result of her greed.” It was the last thesis from the above quotation of the Cairo Declaration that was directly related to the return to the Soviet Union of Southern Sakhalin, seized from Russia in 1905 (Ilyinskaya O.I. Legal foundations of territorial demarcation between Russia and Japan // Journal of Russian Law. 2016. No. 5. pp. 129 — 141).
In the first post-war years, no one doubted that the entire Kuril archipelago belonged to the Soviet Union. All the Kuril Islands, as well as the southern part of Sakhalin, were removed from Japanese sovereignty. Taking into account the mentioned Memorandum and in accordance with the Potsdam Declaration by the Decree of the Presidium of the USSR Armed Forces of February 2, 1946, these territories were included in the newly formed South Sakhalin region of the Khabarovsk Territory of the RSFSR, and on January 2, 1947 — in the Sakhalin region of the RSFSR. Such actions were a fixation in the country’s domestic legislation of those international legal agreements that provided for the transfer of a number of territories from Japanese sovereignty to the USSR following the Second World War. This act logically followed from the international agreements of the allies discussed above.
For international legal recognition of the territories captured by Japan at different times, in favor of the states affected by its aggression, a peace conference was held in San Francisco on September 4–8, 1951, to which 52 states that were at war with Japan were invited. The peace treaty signed at the conference, in the opinion of the Soviet side, was separate, since the USSR was excluded by the United States and Great Britain from participating in its preparation, which was a violation of the rights of the Soviet Union (The head of the Soviet delegation A.A. Gromyko indicated that the Soviet Union was considering San -The Francis Treaty as a separate agreement between the US government and the Japanese government. See: Pravda 1951. September 10).
In paragraph “c” of Art. 2 of the San Francisco Treaty, which is of greatest interest to us, stated that Japan renounces all rights, title and claims to the Kuril Islands and that part of the island. Sakhalin and the adjacent islands, the sovereignty over which Japan acquired under the Portsmouth Peace Treaty of September 5, 1905. At the same time, the transfer of the Kuril Islands and South Sakhalin to the Soviet Union was not mentioned in the Treaty. This circumstance became one of the reasons for the refusal of the Soviet Union to sign the San Francisco Peace Treaty.
Japan’s renunciation of all rights to the Kuril Islands was confirmed during the ratification of the San Francisco Treaty in the Japanese Parliament in 1951. At a parliament meeting, Prime Minister S. Yoshida and the head of the Treaty Department of the Japanese Foreign Ministry K. Nishimura stated that “Japan has renounced its sovereignty and rights to the Kuril Islands, Sakhalin and other territories… regarding how to deal with them, Japan now has no right to interfere. The territorial limits of the Kuril Islands, which are referred to in the Treaty, include both the Northern Kuril Islands and the Southern Kuril Islands..” (Russian Pacific Epic. pp. 586 — 590; Minutes of a meeting of the Parliament of Japan. 12th session. Special Committee on peace treaty and security. Meeting on October 19, 1951 // Russia. 1993. No. 10-16 November).
The absence of official claims by Japan regarding the Kuril Islands in the first decade after the end of the war should be regarded as a tacit recognition of their belonging to the Soviet Union on the basis of the “Crimean Agreement,” which is confirmed by Art. 8 of the San Francisco Peace Treaty, which states: “Japan recognizes the full force and effect of all treaties concluded by the Allied Powers, now or hereafter, for ending the state of war begun on September 1, 1939, as well as any other agreements of the Allied Powers for the restoration of peace.” or in connection with the restoration of peace.»
Subsequently, during the unfolding Cold War, under pressure from the United States, Japan began to declare that the four islands of the Kuril ridge (Iturup, Kunashir, Shikotan and the Habomai ridge) were not included in the concept of the Kuril Islands, therefore they could not be considered seized under the San Francisco Peace Treaty.
Finally, arguing that the southern Kuril Islands were obtained peacefully after the conclusion of the Shimoda Treaty, Japan points out the illegality of their rejection, referring to the Cairo Declaration of December 1, 1943, which noted that “Japan will be expelled from all territories that it captured during the help of force and as a result of greed.» As noted by O.N. Khlestov, Japan capitulated not on the terms of the Cairo Declaration, but on the terms of the Potsdam Declaration, which, with a demand for Japan for unconditional surrender, clarified the Cairo Declaration and provided for the seizure from Japan of any territories that the allies would determine (Khlestov O.N. The South Kuril problem in the Russian-Japanese relations // International public and private law. 2010. No. 4. P. 4.).
The Japanese side also puts forward the argument that its abandonment of the Kuril Islands and South Sakhalin does not mean abandonment in favor of the USSR. It is necessary to recall here: by accepting unconditional surrender and signing the Treaty of San Francisco, Japan even lost the right to speak out regarding the ownership of these territories. In 1972, when signing the Japanese-Chinese agreement on the establishment of diplomatic relations, Japanese Foreign Minister M. Ohira, at the request of the Chinese side, recognized Fr. Taiwan, an integral part of China, stated: “Having abandoned Taiwan under the San Francisco Peace Treaty, our country does not have the right to independently speak out regarding the legal status of Taiwan” (Kunadze G., Sarkisov K. Reflections on Soviet-Japanese relations // World Economy and International Relations. 1989. No. 5. P. 86).
Let us note the legitimacy (legal grounds) of including the Kuril Islands into the USSR.
The legality of the inclusion of the islands into the USSR after their seizure from Japan follows not only from the “Crimean Agreement”, but also from the San Francisco Peace Treaty. As noted by I.I. Lukashuk, the Kuril Islands are mentioned in the same clause of the San Francisco Treaty “as part of Sakhalin. The Treaty of Portsmouth, to which Russia and Japan were parties, is also indicated. In this connection it is worth recalling the existence of a generally accepted position, which in the Harvard Project on the Law of Treaties of 1935 was stated as follows: it is hardly essential that the third State “for whose interests the benefits are established should be specifically named in the Treaty if from its terms or attendant circumstances… it is clear that the benefits are intended for a particular State and that no other State can expect or benefit from these benefits.” This once again confirms that all references to the fact that the USSR cannot lay claim to these territories, since it is not specified in the Treaty, have no legal basis» (Lukashuk I.I. Modern law of international treaties. M., 2004. T. 1. P. 213).
As noted above, the “Crimean Agreement” and the “Potsdam Declaration” are integral elements of international law (these international acts cannot be interpreted in a vacuum and must be considered as part of a broader legal system).
In the Instrument of Surrender dated September 2, 1945, Japan accepted the terms of the Potsdam Declaration.
The right to withdraw from the sovereignty of part of the territories of former enemy states — fascist Germany and Japan — as a measure of punishment for aggression and guarantees of security against the threat of repetition of aggression follows from the materials and decisions of the Nuremberg and Tokyo Tribunals, the Khabarovsk Trials, as well as from the UN Charter. Thus, according to paragraph 1 of Article 77 of the UN Charter, “territories that may be seized from enemy states as a result of the Second World War” can be included in the trusteeship system. At the same time, paragraph 1 of Article 80 emphasizes: “Nothing in this chapter should be interpreted as changing in any way… the terms of existing international agreements to which… members of the Organization may be parties.”
In other words, the terms of the “Crimean Agreement” contain a provision on the seizure from Japan and transfer to the USSR of part of its territory as from a state recognized as an aggressor. Article 107 of the UN Charter further provides that “this Charter shall in no way invalidate any action taken or authorized as a result of the Second World War by the Governments responsible for such action in relation to any State which, during the Second World War, was an enemy any of the states that have signed this Charter, and also does not interfere with such actions.”
Thus, such an international act as the “Crimean Agreement” on the restoration of the sovereignty of the USSR over South Sakhalin and the Kuril Islands still retains legal force. Therefore, Japan’s territorial claims are baseless.
Subsequently, having refused to sign the San Francisco Treaty, the Soviet Union sought good-neighborly peaceful relations with Japan. On his initiative, on October 19, 1956, a Joint Soviet-Japanese Declaration was signed in Moscow, which was ratified by the parties on December 8, 1956 (“Joint Declaration of the USSR and Japan” (Adopted in Moscow on October 19, 1956)). This was the legal basis for Soviet-Japanese relations in the post-war period. With its signing, the state of war was ended and diplomatic and consular relations between the two countries were restored (Articles 1 and 2). In accordance with Part 2, Clause 9 of the Joint Declaration, the Soviet Union, “meeting the wishes of Japan and taking into account the interests of the Japanese state, agrees to the transfer to Japan of the Habomai Islands and the Shikotan Islands, however, that the actual transfer of these islands to Japan will be made after the conclusion of a peaceful Treaty between the Union of Soviet Socialist Republics and Japan.» Thus, the article records the consent of the USSR to continue negotiations on a peace settlement and outlines the territorial limits of this settlement: the transfer of two islands after the conclusion of the Peace Treaty. However, Japan began to put forward territorial demands as a condition for concluding the Peace Treaty beyond what was stated in the Joint Declaration. In particular, the requirement to transfer, in addition to the indicated two more islands — Iturup and Kunashir, i.e. demand for unilateral concessions from the USSR. The Memorandum of the Government of Japan to the Government of the USSR dated February 5, 1960 states that Japan “will relentlessly seek the return of not only the Habomai Islands and Shikotan Islands, but also other ancestral Japanese territories” (Joint collection of documents on the history of territorial demarcation between Russia and Japan . P. 46.).
Thus, Japan announced a unilateral change in the original conditions of the Joint Declaration and violated its paragraph 6, which notes that “The USSR and Japan mutually renounce all claims, respectively, from their state, its organizations and citizens to another state, its organizations and citizens arising as a result of the war since August 9, 1945.»
Moreover, this Joint Declaration contradicts the foundations of international law and therefore has neither legal nor diplomatic force, although it was ratified on December 8, 1956 by the Chairman of the Supreme Soviet of the USSR K. Voroshilov and the Secretary of the Presidium of the Supreme Soviet of the USSR A. Gorkin, that is not by the highest legislative body of the country, the Supreme Council, but by its Presidium, thereby exceeding the rights and powers, which means that the ratification of this Declaration is an illegitimate decree, and even more so, such actions were carried out on the basis of a voluntaristic decision and without notifying society and government institutions.
The Second World War did not end with the defeat of Germany and its allies in Europe, it ended on September 2, 1945 with the defeat of Japan and the signing of the Act of Unconditional Surrender by the main victors and Japan, and the main victors of the USSR, USA and England ended the state of war and established a state of peace and peaceful time, which is equivalent to the conclusion of a peace treaty, and the peace treaty itself can be concluded and signed, or it may not be concluded and not signed, since the Act of the Unconditional Surrender of Japan in this case took on the functions of a peace treaty and is itself a peace treaty! (Article: “Consideration of Japan’s territorial claims to Russia from the point of view of international law”, Simkin V.S., Luxemburg A.V. “Public and private international law”, 2006, No. 3).
In turn, the Soviet government, in a Memorandum to the Government of Japan dated April 22, 1960, made a harsh statement, which stated: “Once again putting forward unfounded claims regarding territories belonging to the Soviet Union, the Japanese government claims that, according to the Joint Declaration, the parties allegedly agreed to consider that the territorial issue is left for further discussion. The Soviet government rejects this assertion, since in reality such an agreement did not and could not exist. The territorial issue between the USSR and Japan has been resolved and secured by relevant international agreements that must be respected” (Pravda. 1960. April 24).
Until the end of the 1980s. The USSR denied the existence of a territorial problem, stating that this issue was resolved following the results of World War II. Post-Soviet Russia not only declared recognition of the existence of the problem of the southern Kuril Islands, but also agreed to negotiate on the ownership of the islands in order to conclude a peace treaty (Joint Soviet-Japanese Declaration of 1991; Tokyo Declaration on Russian-Japanese Relations of 1993; Moscow Declaration on the Establishment of creative partnership between the Russian Federation and Japan 1998; Statement of the President of the Russian Federation and the Prime Minister of Japan on the issue of the peace treaty of 2000; Irkutsk statement of the President of the Russian Federation and the Prime Minister of Japan on the further continuation of negotiations on the issue of the peace treaty of 2001).
Japan’s goal in concluding a peace treaty is to obtain the South Kuril Islands. However, there are no legal grounds due to the above reasons.
Satisfying Japan’s claims would mean the possibility of revising the territorial results of World War II in relation to other countries, which is unacceptable. Moreover, this would mean not just the loss of a part of Russian territory with an area of more than 5,000 square meters. km, and taking into account the sea area — about 200 thousand square meters. km, within which large reserves of mineral resources have been discovered on the shelf, and in terms of productivity of biological resources this area is one of the richest in the World Ocean, but also the loss of the Sea of Okhotsk. If the islands are transferred to Japan, the Sea of Okhotsk will cease to be an internal sea of Russia with all the ensuing consequences for the security of our state (Ilyinskaya O.I. Legal foundations of territorial demarcation between Russia and Japan // Journal of Russian Law. 2016. No. 5. P. 129 – 141).
In turn, the Russian Federation, being the legal successor of the USSR, must recognize all agreements, treaties, and declarations adopted by the Soviet Union.
Today, as noted by O.N. Khlestov, it is more expedient to conclude an agreement on friendship, cooperation and good neighborliness between Russia and Japan, given that both the Soviet Union and today’s Russia are successfully developing trade, scientific, technical, cultural and other relations with Japan, and unpromising territorial negotiations should be stopped (Khlestov O .N. South Kuril problem in Russian-Japanese relations // International public and private law 2010. No. 4. P. 2 – 8).
Despite the fact that the decision on the ownership of all the Kuril Islands was made following the results of the Second World War and enshrined in the Crimea Agreement and the Potsdam Declaration, and also that, according to paragraph “C” of Article 2 of the San Francisco Peace Treaty, “Japan renounces all rights, title and claims to the Kuril Islands and that part of Sakhalin Island and the adjacent islands, over which Japan acquired sovereignty under the Treaty of Portsmouth of September 5, 1905, Japanese political circles have been intensively discussing this issue for decades for domestic and foreign policy reasons (Statement of the Federation Council of the Federal Assembly of the Russian Federation RF dated 07/07/2009 N 235-SF “In connection with the adoption by the Japanese Parliament of amendments to the “Law on Special Measures to Promote the Resolution of the Problem of the Northern Territories”),
It should be noted that Russia has the right to initiate legal proceedings for unfounded territorial claims against our country by Japan. Establishing justice and suppressing Japan’s territorial claims against Russia require the prompt, effective and rigorous intervention of the United Nations to restore and establish international legitimacy and global stability.
Sergey Lutsenko — Director of the Center for Economic Analysis of Law and Law Enforcement Problems of the Institute of Economic Strategies of the Russian Academy of Sciences, member of the Expert Council of the State Duma Committee of the Federal Assembly of the Russian Federation on Defense, co-author of the documents “National Security Strategy of the Russian Federation” and “Strategy for the Development of the Electric Grid Complex of the Russian Federation”, author project “Outlines of the Concept for the development of the financial cluster of the Russian Federation for the long term”
Der Friedensstifter 