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2016 October 19 - 25 [POLITICS]

How we can break the stalemate in the Japan-Russia territorial negotiations

On the occasion of the 60th anniversary of the Japan-Soviet Joint Declaration

Kazuo Shii

Chair, Executive Committee, Japanese Communist Party
Member of the House of Representatives of Japan

October 18, 2016

Russian President Vladimir Putin is scheduled to visit Japan to meet with Prime Minister Shinzo Abe for a planned summit meeting of the two leaders on December 15 which will reportedly focus on the prolonged territorial dispute between the two nations.

The prime minister has said he would embrace a “new approach” to the issue, though the content of the “newness” is unclear. I worry that Japan will be likely to fail to make a breakthrough in the negotiations, and even worse, will fall back into a serious deadlock unless the Japanese government makes a clear and well-prepared case on the issue, with regard to, among other things, relevant international legal grounds.
How can we break this six-decade-long stalemate in existence since the Japan-Soviet Joint Declaration was issued in 1956? It is a good time for us to revisit several important aspects in the past negotiations process and draw a lesson from it for the future.

The Japanese Communist Party has proposed a two-phased resolution to the issue. The first stage is the early return of the islands of Habomai and Shikotan, which are part of Hokkaido, by concluding an interim friendship treaty. The second stage is for the two nations to conclude a peace treaty which ensures the return of the Chishima (Kurile) Islands to Japan.

Here, I emphasize three important points as basic premises for future negotiations with Russia.

1. Japan should conclude a peace treaty with Russia only after the territorial dispute reaches a final resolution while the early return of the islands of Habomai and Shikotan, which we think is desirable, should be addressed in an interim treaty.

It is reported that within the Abe administration the idea to conclude a peace treaty with Russia in exchange for the early return of Habomai and Shikotan is under consideration.

Whether the media report is substantiated or not, if the Japanese government changes its old stance of treating the four islands of Habomai, Shikotan, Kunashiri and Etorofu as one package and now demands the early return of Habomai and Shikotan, it is desirable.

What alarms us, however, is that the administration is reported to be overly eager to conclude a peace treaty with Russia even at this stage. If a nation concludes a peace treaty with another, it essentially means that the two nations formally agree on the border demarcation, no matter what reservations or conditions the one side attaches. If Japan concludes a peace treaty with Russia at an initial, two-islands-return stage, it will mean a de facto closure of any additional substantive negotiations for further reclamation of our territory.

When the 1956 Japan-Soviet Joint Declaration was issued, the Soviets insisted on ending territorial negotiations by hastily concluding a peace treaty, though they had agreed to return Habomai and Shikotan. If Japan agrees to conclude a peace treaty with the return of only the two islands now, it will be a complete surrender to what the Soviets demanded in 1956 as well as a self-negation of the stance Japan has taken for the past six decades.

2. One of the reasons for the sixty-year stalemate of the Japan-Russia territorial negotiations lies in Japan’s misguided position: the islands of Kunashiri and Etorofu are not part of the Chishima (Kurile) Islands so the two should be returned. This argument is not consistent either with historical facts or with relevant treaties. The Japanese government needs to acknowledge the infeasibility of this argument and conduct a fundamental review of its policy toward future negotiations.

The 1951 San Francisco Peace Treaty stipulates in Article 2 (c), “Japan renounces all right, title and claim to the Kurile Islands.” Taking this clause as indisputable and to avoid any clash with this premise, the Japanese government came up with the argument that the islands of Kunashiri and Etorofu are not part of the Chishima (Kurile) Islands so the two should be returned.

Besides abstaining from reclaiming the North Kuriles north of Uruppu, which we think is a fundamental flaw, this argument also fails to have adequate international legal grounds to demand the return of the South Kuriles of Kunashiri and Etorofu.

Prime Minister Shigeru Yoshida, representing the Japanese government in the 1951 San Francisco Conference, clearly called Kunashiri and Etorofu “the two islands of the South Kuriles” in his acceptance speech and viewed the Kurile Islands as composed of “the South Kuriles” and “the North Kuriles north of Uruppu.” U.S. Secretary of State John Foster Dulles who represented the U.S. government in the San Francisco Conference also mentioned “the Kurile Islands” in his speech where he used the term to signify the territory including both the North and South Kuriles.

In the 1951 Diet session which ratified the treaty, the Japanese government consistently stated its formal understanding that “the Chishima Islands comprise the Northern and Southern Chishimas” (Kumao Nishimura, Director of Treaty Bureau of Ministry of Foreign Affairs).

The argument that Kunashiri and Etorofu are not part of the Kurile Islands was suddenly introduced in 1955 with a suggestion by the U.S. In 1955, the Japanese government asked the governments of the U.S., the U.K., and France if their governments understood that the definition of “the Kurile Islands” in the San Francisco Treaty did not include the islands of Kunashiri and Etorofu. The U.S. government replied that the U.S. would not oppose Japan requesting the Soviets to return the two islands based on the argument that they were not part of the Kurile Islands. However, the U.K. objected to the U.S. stance. The French government pointed out that the minutes of the 1951 San Francisco Conference mentioned the definition of the Kuriles and reminded the Japanese government of its own stance on Kunashiri and Etorofu expressed by its own representative in the San Francisco Conference. The international community would not buy Japan’s sudden reversal in the stance it once clearly expressed at the San Francisco Conference as well as in the Diet session which ratified the treaty.

The entire six-decade history of the negotiations has revealed the failure of the argument to exclude Kunashiri and Etorofu from the Chishima Islands just to make a semblance of a legal stand to reclaim the two islands. The Japanese government should confront this fact and conduct a fundamental review of its policy towards future negotiations.

3. The root cause of the territorial dispute between Japan and Russia lies in the 1945 Yalta Agreement which arranged the “handover” of the Chishima Islands to the Soviets and the following 1951 San Francisco Peace Treaty which formally declared Japan would renounce the Chishima Islands. Those were flagrant violations of the principle of “territorial non-expansion” in the post-WWII disposition. Now is the time to rectify this unjust post-war disposition forced upon Japan.

During World War II, the Allied Powers repeatedly expressed territorial non-expansion as the main principle in a post-war disposition. Among others, the 1943 Cairo Declaration states, “[The Allied Powers] covet no gain for themselves and have no thought of territorial expansion.” It also states, “Japan will also be expelled from all other territories which she has taken by violence and greed.” This was consistent with the international justice including the “non-expansion” principle.

In the 1945 Yalta Conference, however, Joseph Stalin demanded the “handover” of the Chishima Islands to the Soviets as a condition for the Soviet entry into war against Japan, and the U.S. and Britain accepted this demand to be included in the Yalta Secret Agreement. This was a gross injustice and a flagrant violation of the non-expansion principle as a major pillar in a post-war disposition. Then, the inclusion of the “renounce-Chishima” clause in the 1951 San Francisco Peace Treaty, which was done by accommodating the U.S. demand, was along with the same line of injustice and a violation of the non-expansion principle.

The core issue in resolving the Japan-Russia territorial dispute lies in rectifying this unjust post-war disposition by getting back to international justice and the principle of “non-expansion of territory.”

The Japanese government has insisted that “the Chishima Islands” as well as “Kunashiri and Etorofu” are not part of what the 1943 Cairo Declaration called the territories taken by Japan “by violence and greed.” If so, why did the government concede to renounce all rights to the Chishima Islands in the San Francisco Peace Treaty? Was such renouncement a violation of the non-expansion principle which the Cairo Declaration itself embodied? The government has not yet delivered any convincing explanation on these important questions over the past sixty years.

The Japanese government has denied the legal effect of the Yalta Agreement which arranged the “handover” of the Chishima Islands to the Soviets. It explained that the Yalta Agreement was not an agreement which finalized the post-war disposition on the Japan-related territorial issues and did not have any legal effect to transfer territory. The government has clearly stated that Japan is not bound by the Yalta Agreement. However, it has never criticized the agreement as an unjust arrangement which violates the non-expansion principle in the post-war disposition.

The Japanese government should change its stance of looking away from the injustice of the violation of the non-expansion principle committed to in the Yalta Agreement as well as the San Francisco Peace Treaty, and take a firm stance to rectify this injustice by turning to the international principle of democracy.

As long as we stand firmly upon the non-expansion principle, it is logical and proper to consider a peacefully-conducted border demarcation between Japan and Russia in the past without resorting to war as the foundation upon which the bilateral negotiations must be based. Historically, by the 1855 Treaty of Commerce, Navigation and Delimitation between Japan and Russia and the 1875 Treaty for the Exchange of Sakhalin for the Kurile Islands, the whole of the Chishima Islands came under the territory of Japan. This fact must be the foundation for the territorial negotiations between Japan and Russia.

The Japanese government must squarely recognize that the “handover” of the Chishima Islands to the Soviets by the Yalta Agreement and the renouncement of the islands in the San Francisco Peace Treaty were unjustly forced upon Japan by violating the principle of non-expansion of territory in the post-war disposition. The Japanese government should implement a well prepared international legal position to reclaim the whole of the Chishima Islands including by demanding to abrogate or invalidate the Chishima-related clause in the San Francisco Peace Treaty before negotiating with Russia to conclude a peace treaty which should ensure the full return of the Kuriles. Standing firmly on this position will eventually help us realize an early return of the islands of Kunashiri and Etorofu.

It is not impossible to abrogate or nullify and void a treaty or partial clauses in a treaty even after a nation ratified it. Regarding the San Francisco Peace Treaty itself, Okinawa has already been returned to Japan even though Japanese sovereignty over Okinawa is denied by Article 3 of the treaty without it undergoing official procedures of abrogation. A nation can correct a serious flaw in a treaty in regard to the international principle of democracy even after its ratification.

The hegemonisitc expansion of territory committed by Stalin has been largely settled, including the annexations of the three Baltic states as well as part of Poland. Among Stalin’s unjust annexations of territory, only the Chishima Islands question remains unsettled today despite the demand for its rectification by the affected country, Japan.
The Japanese government should stand firm on the right stance to rectify the injustice of the post-war disposition forced upon Japan. How long it may seem, this is the only path leading to a final resolution of the territorial dispute between Japan and Russia. This is the very lesson we should learn from the sixty-year history since the Japan-Soviet Joint Declaration was issued.