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The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia

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The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia Washington International Law Journal Volume 11 Number 1 1-1-2002 The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia Seokwoo Lee Follow this and additional works at: https://digitalcommons.law.uw.edu/wilj Part of the International Law Commons Recommended Citation Seokwoo Lee, The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia, 11 Pac. Rim L & Pol'y J. 63 (2002). Available at: https://digitalcommons.law.uw.edu/wilj/vol11/iss1/3 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington International Law Journal by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. Copyright © 2002 Pacific Rim Law & Policy Journal Association THE 1951 SAN FRANCISCO PEACE TREATY WITH JAPAN AND THE TERRITORIAL DISPUTES IN EAST ASIA Seokwoo Leet Abstract: There are currently three territorial disputes over islands in East Asia in which Japan is a disputant: against Russia, over the Kurile Islands; against China and Taiwan, over the Senkaku Islands; and against Korea, over the Liancourt Rocks. Although all the claimants marshal support for their cases from historical sources, it cannot be denied that much of the uncertainty surrounding the territorial demarcation is a by-product of immediate post-World War II boundary decisions and territorial dispositions. The final disposition of territories tr East Asia at the end of World War II was effected by the San Francisco Peace Treaty of 1951. The San Francisco Peace Treaty failed to define the "Kurile Islands," and further to specify the entity in whose favor Japan had renounced sovereignty over the disputed islands. Additionally, specific mention of the Senkaku Islands and the Liancourt Rocks did not appear in the territorial clauses of the San Francisco Peace Treaty. Accordingly, there is a need for a careful examination of how a series of drafts of the Treaty defined the terms of the San Francisco Peace Treaty regarding these disputed islands in East Asia. The territorial clause of the San Francisco Peace Treaty regarding the Kurile Islands can be interpreted as follows: first, the Soviet Union is the only recipient of the Kurile Islands envisaged by the Allied Powers; second, there were no agreed definitions of the "Kurile Islands" among the Allied Powers; and third, there are strong indications that the Allied Powers preferred not to resolve the matter of the ultimate disposition of the Kurile Islands in the San Francisco Peace Treaty. The Senkaku Islands were not included as either Chinese and Taiwanese or Japanese territory by the drafters of the San Francisco Peace Treaty, and Article 3 of the San Francisco Peace Treaty did not, to the point of specificity, define the territories that were placed within the area of the United Nations trusteeship with the United States as the sole administering authority. The territorial clause on the Liancourt Rocks could indicate that the San Francisco Peace Treaty assigns the Liancourt Rocks to Japan. However, due to the contradictory nature of the various drafts of the treaty, Korea may still be free to establish that the "Korea" renounced in the San Francisco Peace Treaty included the Liancourt Rocks. t Visiting Scholar, East Asian Legal Studies Program (EALS), Harvard Law School; The Wai Seng Senior Research Scholar, Asian Studies Centre, St. Antony's College, University of Oxford; D.Phil. in Public International Law, Faculty of Law, University of Oxford; LL.B., LL.M. in Public International Law, Korea University Department of Law; LL.M., University of Minnesota Law School; LL.M. in International Legal Studies, New York University School of Law. The author is grateful to Catherine Redgwell (University of Oxford, UK) and Dakas C.J. Dakas (University of Jos, Nigeria) for their comments. The author also thanks the Asian Studies Centre, St. Antony's College, Oxford, for facilitating his research by generous financial support. The author would also greatly appreciate any comments and inquiries on this subject, preferably by e-mail: [email protected]. 64 PACIFIC RIM LAW & POLICY JOURNAL VOL. 11 No. 1 1. INTRO D U CTION ........................................................................................ 65 II. JAPAN'S TERRITORIAL DISPUTES ................................................................... 67 A. The Kurile Islands............................................................................. 72 1. Pre-1945 Boundaries....................................................................... 73 a. The Treaty of Shimoda and its 1875 amendment .................................... 73 b. The Treaty of Portsmouth............................................................. 74 2. The Status of the Kuriles During the Second World War ............................ 74 3. 1945 to the Present....................................................................... 76 4. W eighing the Claims ........................................................................ 77 a. Etorofu and Kunashiri................................................................. 79 b. Shikotan and the Habomais........................................................ 83 i. Shikotan ............................................................................ 85 ii. The H abomais ....................................................................... 86 B. The Senkaku Islands............................................................................ 87 1. TerritorialStatus of the Senkaku Islands Prior to 1945 ................................ 88 2. Postwar Dispositionof the Senkaku Islands............................................. 89 C. The Liancourt Rocks .......................................................................... 91 1. The Status of the Liancourt Rocks Prior to 1945.................................... 92 2. The PostwarStatus of the LiancourtRocks .............................................. 93 3. Competing Claims to the LiancourtRocks ............................................ 95 III. TERRITORIAL DISPOSITIONS AND THE SAN FRANCISCO PEACE TREATY W ITH JAPAN O F 1951 ..................................................................................96 A. The Wartime Declarations...................................................................... 96 1. The Cairo Declaration ..................................................................... 97 2. The Yalta Agreement ..................................................................... 97 3. The Potsdam Proclamation................................................................ 99 4. Competing InterpretationsRegarding the Legal Effect of the Wartime Resolutions..................................................................... 99 B. Interpretationof the Supreme Commanderfor the Allied Powers' Instructions (SCAPINs)........................................................................ 104 C. Draft Clauses Concerningthe Disposition of the Kurile Islands......................... 107 1. Draft Dated March 19, 1947 ........................ ................................. 110 2. Draft Dated August 5, 1947............................................................... 111 3. Draft Dated January8, 1948 ............................................................. 112 4. Draft Dated October 13, 1949 ............................................................ 112 5. Draft Dated November 2, 1949 .......................................................... 113 6. Draft Dated December 8, 1949 .......................................................... 115 7. Draft Dated December 19, 1949 ......................................................... 116 8. Drafts Dated December 29, 1949, and January3, 1950 .............................. 116 9. Drafts Dated August 7, 1950, and September 11, 1950 ............................... 117 10. Drafts Dated March 12, 1951, and March 17, 1951 .................................. 118 11. Draft Dated April 7, 1951 ................................................................. 119 12. Draft Dated May 3, 1951 .................................................................. 119 13. Drafts Dated June 14, 1951, July 3, 1951, and July 20, 1951 ....................... 121 14. The Implications of Drafts on the TerritorialDispositions of the Kurile Islands in the San FranciscoPeace Treaty ..................................... 122 D. Draft Clauses Regarding the Dispositionof the Senkaku Islands........................ 122 1. Draft Clauses Limiting Japanese Territory............................................. 123 2. Draft Clauses Defining Taiwan's TerritorialClaims ................................. 124 3. Draft Clauses Defining the Terms of the UnitedNations Trusteeship.............. 125 JANUARY 2002 SAN FRANCISCO PEACE TREATY 4. A ppraisal .................................................................................... 126 E. Draft Treaty Clauses Concerningthe Disposition of the LiancourtRocks .............. 127 1. Drafts Dated March 19, 1947, August 5, 1947, January 8, 1948, October 13, 1949, and November 2, 1949 .............................................. 129 2. Draft Dated December 8, 1949 .......................................................... 131 3. Draft D ated December 19, 1949 ......................................................... 132 4. Drafts Dated December 29, 1949, and January3, 1950 .............................. 133 5. Drafts Dated August 7,
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