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    Posted February 6, 2014 by
    EricBrickman

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    Why Tokyo will never get the Northern Territories?

     
    The "Northern Territories Day" has been celebrated in Japan since January 6, 1981. Despite the relatively short history of the holiday for the last 30 years the idea to reclaim the islands had grown strongly in the minds of many Japanese people, and even became a "political" tradition. "Returning of the Northern Territories" is a serious prerequisite of any election program, regardless of the political orientation of the candidate.

    But during an international conference on the disputed territories in the Asia-Pacific region held in Vladivostok prior to the APEC summit 2012 a group of Russian and foreign researchers came to a sensational conclusion that Japan would never be able to get the "Northern Territories". ** This conclusion is based on a detailed study of a set of international law documents on the world reorganization after World War II. Exactly those political and legal decisions and agreements signed at the end of the hostilities and postwar period are the fundamental documents for the border line consideration between Russia and Japan. However, in the territorial claims Tokyo continues referring to the "Treaty of Shimoda" signed in the mid-19th century which force is repeatedly reversed by the later documents.

    Further distribution and consolidation of the territories seized from Japan was in accordance with the terms of the Peace Treaty between Japan and the coalition of 48 countries-winners signed on September 8, 1951 in San Francisco. According to clause "C" of Article 2 of the Treaty** "Japan renounced all rights, legal foundations and claims to the Kuril Islands, and to that portion of Sakhalin and adjacent islands, the sovereignty over which Japan acquired by the Treaty of Portsmouth of September 5, 1905."**

    The jurisdiction of the USSR over the Kuriles and Sakhalin detailed in the Article 8 of the Treaty, in which Japan "recognized the legitimacy of all treaties signed by the Allied Powers ... to end the state of war, or any other agreements of the Allied Powers made to restore peace." Thus, by signing the Article 8 of the Treaty, Japan tacitly agreed with the decisions of the Yalta and Potsdam conferences, which assigned Sakhalin and Kuril Islands to the USSR.

    However, today from the point of view of the modern Japanese such "not fully defined" legal status of the Kuril Islands does not satisfy the current Japanese government that seeks to score the political mileage by returning the territories.
    Let’s assume that the government of Japan reaches an agreement with Moscow, whose main condition for the islands transfer would certainly be the American troops withdrawal from the territory of Japan, but not a peace treaty, as Tokyo wants. However, as per the reasoned opinion of the reputed expert on territorial disputes B.I.Tkachenko, with Russian attempt to transfer the islands to the possession of Japan the Article 2 of the San Francisco Treaty comes to effect, according to which no part of the Kuril Islands can belong to Japan, as it refused "all rights, titles and claims" to them for the time of indefinite term treaty.

    Then, who may the Kuril Islands be transferred to? The answer is in the Article 26 of the Treaty, according to which "if Japan would negotiate a peaceful settlement or war claims settlement with any State ... the same benefits would be extended to the parties hereto." In this situation the islands transfer to Japan, legally waived the rights to them permanently, the islands shall automatically be placed under the joint jurisdiction of the 48 signatories to the Treaty. It is noteworthy that neither Russia (as we know, the Soviet Union did not sign the Treaty), nor Japan, which forever renounced the rights to the islands are among of them. The Article 22 of the Treaty also contains a similar provision, according to which all disputes relating to the implementation of this Treaty shall be settled by the International Court with the representatives of those 48 states.

    Based on the foregoing, we can make several conclusions. For the indefinite term of the San Francisco Peace Treaty Japan renounced all Kuril Islands. The islands transfer to Japan will lead to the fact that the international control of the Treaty signatories will be established over the islands. Japan government attempts to resolve the territorial claims in the short term could lead to the fact that both countries (Russia and Japan) would lose the subject of a dispute forever because it would be placed under international jurisdiction. The way to resolve the current situation does not exist because the San Francisco Peace Treaty is an international indefinite term act in force.

    Thus, at this stage, maintaining the status quo in the territorial dispute between Japan and Russia is in line with the national interest of both Russia and Japan. However, nothing impedes both countries to develop together the economy and infrastructure of the four islands, which finally will not be considered as the "apple of discord" and become one more link in the Russian-Japanese relations.
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