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Since the end of World War II, Japan and the Soviet Union, now Russia, have been at odds over the Russian occupation and annexation of four small islands just north of the northernmost Japanese island of Hokkaido. Japan disputes Russian sovereignty of the islands but hopes to resolve the territorial issue so that a formal peace treaty between them can be signed. (Ministry of Foreign Affairs, Public Information Beurau, Japan, Japan's Northern Territories 3 (1992) [hereinafter Ministry of Foreign Affairs]. For the last twenty years, the Soviet Union has largely ignored Japanese claims, often refusing to acknowledge that a dispute exists. (Fuji Kamiya, The Northern Territories: 130 Years of Japanese Talks with Czarist Russia and the Soviet Union. Soviet Policy in East Asia, 120, 150-151, D. S. Zagoria, 1982) Under the leadership of Presidents Gorbachev and Yeltsin, Russia has accepted that there is a territorial issue to be settled. 3 However, the dispute has become one of the bitterest diplomatic problems facing the world community and its resolution is imperative to the orderly incorporation of the new Russian Republic into the world economic order.
With the advent of a democratic government and the transition to a market economy, Russia is at a crossroads in its history. The success of democracy in Russia largely depends on the ability of the leadership to provide economic growth and a better standard of living for the Russian people. The vital ingredient to initiate and sustain that growth is economic assistance and capital investment from the industrialized nations of the West and the Far East. (INVESTMENT NEEDS FOR A NEW RUSSIA ARE MOSTLY UNMET, NY Times, December 14, 1992). With its large pool of investment capital and technical expertise, Japan must play a central role in the success of any comprehensive assistance package to Russia. (Ibid.) The leading industrial nations simply do not have the resources to meet Russian needs alone (Ibid.). The United States and Western Europe are struggling with domestic economic problems and German capital is tied up in the process of reunification and rebuilding of Eastern Europe (Ibid.). Despite some small amounts of aid, the Japanese have refused to make a major commitment of resources and investment until the Russian Government agrees to a settlement of the Kuril Island dispute as part of the long overdue conclusion of a treaty peace between two States (8 (SERGE SCHMEMANN Yeltsin Cancels a Visit to Japan As Dispute Over Islands Simmers.NY Times, September 10, 1992).
In September 1992, Japanese insistence on the return of the islands as a condition for aid appeared as if it was going to succeed. (Ibid). There were high expectations that president Yeltsin's September visit to Toky would yield an agreement or understanding concerning the disputed territory (Ibid). It came as a bombshell, therefore, when Yeltsin cancelled his trip to Tokyo and it deserves to be emphasized that the reason for the cancellation was Russian disapproval of Japanese ultimatums concerning the territorial issue. (FOOTNOTE). If the Japanese had been more aware of Russian public opinion, the cancellation may not have come as such a surprise. Weary from the tremendous changes that had shaken the former Soviet Union, nationalist politicians and members of the military were eager to find an issue on which to hald the complete dissolution of the Russian empire. ( Serge Schmemann, Little Isles, a Big Fight, NY Times, Sept. 11 1992). Unfortunately for Russia's economic failure, the disposition of four tiny islands with almost no strategic or economic value became that issue. Angered by what was seen as Japanese blackmail, the nationalists successfully fermented an outcry against what the public perceived as the selling out of sovereign Russian territory. (IBID). Faced with a public already angered over the hardships of the market reform proves and a power struggle with the Russian Parliament, Yeltsin decided that he could not risk giving in to Japanese demands. (BIBID).
The Japanese government responded angrily to the cancellation of president Yeltsin's trip to Tokyo and the government's position on the return of the islands has grown more rigid as a result (footn). During the months following the cancellation, the Japanese refused to budge on the issue, and the Russian position solidified as well (footn) A number of Russian developments have in fact sent the signal that an early settlement of the problem is unlikely. (footn) President Yeltsin has suggested up to a two-year moratorium on the issue unil Russia is in a less vulnerable position to negotiate (footn). The commende in Chief of Commonwelath Forces has suggested that the planned demilitarization of the Islands and withdrawal of troops might be suspended as well. (footn). Finally, Yeltsin has authorized a free-trade zone for the Islands which gives power to the local government to sell leases for up to 99 years. (footn)
Prior to the cancellation of Yeltsin's visit, Japan and Russia had pledged to solve the dispute relying on the "law and justice" and "respect for international agreements conclude in the past". (footn). However, since the cancellation, sensitive feelings of national pride have been placed on the line. As a result, high emotions and political pressures have threatened to overwhelm the ability of both states to settle the dispute based upon substantive issues of international law.
When Yeltsin finally made his long-delayed trip to Japan in October 1993, following his victory over the armed uprising of the conservative parliament, clear signals were sent in advance that the territorial issue should be avoided and was not in Yeltsin's agenda for talks with the Japanese government. (footn). Although the Japanese did broach the issue and made it clear that their position in the return of the islands had not changed, no substantive progress was made on the issue.
The resolution of this dispute is imperative for the industrialized community. Without hapanese resources, there will be a much heavier burden on the other western states that are capable of rendering assistance to Russia. Neither the United States, nor Germany is in a position to pick up the necessary slack. Yet assistance to Russia is vital not only to the Russian economy but to Russia's political stability and as a result, to global stability as well.
This comment will examine the basis in international law of the territorial dispute between japan and Russia and will analyze the effect of the treaties and agreements claimed or disputed by both states, and will conclude that the Japanese have a stronger legal claim to the disputed Kuril Islands. Considering the political significance of this dispute, the stronger legal claim must be coupled with a political solution that is attractive to both sides. A politically palatable solution must avoid admissions of faulty or aggression. Thus, one of the weakest legal theories, the theory that the islands in dispute should never have been classified as a part of the kurile chain, may be the basis for a possible compromise solution to the problem.
II Methods of Analysis
Both sides in this dispute have advanced various alternative theories supporting sovereignty over the disputed islands. These theories will be explored in relation to the relevant treaties and documents upon which they are based. However, this inquiry will not be limited to those theories and will address other relevant legal arguments. The basis of this inquiry will be guided by two sets of rules of international law, customary international treaty law and the 1969 Vienna Convention on the Law of Treaties (Vienna Convention). ( Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, 8 1.1.M. 679).
A. Customary International Treaty Law
In the absence of an express agreement by the parties to apply a particular set of laws, customary international treaty law would be used to govern this dispute of it were submitted to arbitration or the International Court of Justice (Charter of the United Nations, June 26, 1945) for resolution. Article 38 of the Statue of the International Court of Justice defines the sources of law that are applicable in such disputes as being:
International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
International custom, as evidence of a general practice accepted as law;
The general principles of law recognized by civilized nations;
Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (Ibid, art. 38, 59 Stat. at 1060)
Most of the law treaties, prior to the adoption of the Vienna Convention, is customary law that developed through the general practice of States (Malcolm Nathan Shaw. International Law. Cambridge university press, 2003) and the application and elucidation of that law in the cases decided by the Permanent court of International Justice, set up by the League of Nations. (Herbert Wolcott Bowen, International Law. W.S. Hein, 2003). This comment will rely on two primary sources as authority for the rules of customary lap prior to the Vienna Convention. The first source is the 1948 edition of Professor Lassa Oppenheim's treaties on International Law, which discusses the state of the customary law during and following World War II. The second source is Lord McNair's, The Law of Treaties, written in 1938 and expanded in 1961.
B. The 1969 Vienna Convention
The Vienna Convention does not apply to treaties entered into prior to the Convention (Ian McTaggart Sinclair. The Vienna Convention on the Law of Treaties. Manchester University Press ND, 1984). However, the Vienna Convention will be used to aid in the analysis because it codifies many of the prior rules of customary law and is instructive as to contemporary resolution of this dispute. (Vienna convention, supra note 26, art 31). Both Japan and Russia are signatories to the Vienna Convention and, although unlikely, both could stipulate to use the Vienna Convention as the governing law in an arbitration proceeding.
The analysis of this dispute will include a brief history of the dispute, from its origin to the present, to provide a conceptual framework. Under both customary treaty law and the Vienna Convention, subsequent treaties and agreements supersede older agreements on the same issue, unless the parties stipulate otherwise. (Vienna Con. Art 59). Therefore, this comment will examine the effects of the relevant major treaties and agreements in reverse chronological order, to determine the legal basis for sovereignty over the islands. Finally, this comment will analyze the current Japanese view, which is weak from a legal perspective, but may offer the best foundation for a compromise solution.
III. History of the Islands
The four islands at issue (Etorfu, Kunashiri, Shikotan and the Habomai group of islets( are located just north of the northernmost Japanese island of Hokkaido. (MAP). These islands are southernmost in a chain of islands stretching north to the Kamchatka Peninsula. This chain is commonly known as the Kuril Islands, although the Japanese currently claim that the disputed islands are not part of the Kuril chain. (Ministry of Forreign affairs supra note).
Both the Russians and the Japanese began exploring Sakhalin island and the smller islands in the area in the 17th century (Stephan 31 32). It was the larger Sakhalin island, not the Kuril Islands, which became the source of rivalry between the two powers as both rushed to exploit its resources and expand their frontiers. (Ibid, 43). The disputed Kuril Islands were not explored by Russia until the early 18th century, and historical evidence shows that the Japanese had been navigating and trading in the Kuril chain for some time. (FOOTNOTE). In the 1855 Treaty of Commerce, Navigation and Delimitation between Japan and Russia (Shimoda Treaty), japan and Russia established relations and made their first attempt to settle the Kuril chains' territorial boundaries. (FOOTNOTE) Article II of the Shimoda Treaty states that:
[Henceforth the boundaries between Russia and Japan will pass between the islands Etorfu and Uruppu. The whole island of Etorfu belongs to Japan and the whole island of Uruppu and the other Kuril islands to the north constitute possessions of Russia. As regards the island of Karafuto (Sakhalin), it remains unpartitioned between Russia and Japan, as has been the case up to this time.] (FOOTNOTE).
The Japanese government currently asserts that this statement of boundaries between Etorfu and Uruppu to the north is the legitimate boundary between Japan and Russia. (MFA, supranote 1, at 6). According to the Japanese Foreign Ministry, a document recently made public in Russia demonstrates that Russian leaders Czar Nicholas I and Commodore Putyatin recognized that the southernmost boundary of Russian territory was Uruppu and that everything below Etorfu was Japanese territory. (ibid). If this document is authentic, it undermines any historical rights that Russia might assert as alternatives to the boundaries set by the treaty.
In the 1875 Treaty for the Mutual Cession of Territory between Japan and Russia (St. Petersburg Treaty), the Japanese exchanged their claim to Sakhalin Island for the Russian claim to the remaining islands in the Kuril chain. (St. Peterbsrg treaty). The result as that Russia controlled Sakhalin and the Japanese controlled the entire Kuril chain. (Ibid). Thirty years later, the Japanese regained the southern half of Sakhalin Island in the 1905 Treaty of Peace between Japan and Russia (treaty of Portsmouth), which ended the Russo-Japanese War. (Treaty of Prmth). In 1925, the Soviet Union recognized the boundaries set between Japan and Russia by the Treaty of Portsmouth in the Soviet-Japanese Convention of Peking on Japanese Concessions in Northern Sakhalin (Peking Convention). (Leonard Shapiro. Soviet treaty series. Georgetown University Press, 1950. p 283). Furthermore, in 1941, the Soviet Union and Japan signed the Soviet-Japanese Neutrality Pact which was to last until 1946 (Stephan, 138).
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Scott Davidson The Law of Treaties, Ashgate/Dartmouth, 2004