Foreign Relations of the United States, 1955–1957, Japan, Volume XXIII, Part 1

12. Memorandum From the Director of the Office of Northeast Asian Affairs (McClurkin) to the Assistant Legal Adviser for Far Eastern Affairs (Snow)¹

Washington, February 16, 1955.

SUBJECT

• Kuriles and South Sakhalin

The Japanese have informally stated (Department’s telegram 1560 to Tokyo)² they may request an indication of the United States position on the status of the Kurile Islands and South Sakhalin. I have read your memorandum of October 28, 1954³ to Mr. Phleger on the status of Formosa and would appreciate your comments on the following statements of what we understand the legal position to be.

1. Vis-à-vis the United States and the other Allied Powers which signed and brought into force the San Francisco Peace Treaty, Japan has renounced all claim to the Kuriles and South Sakhalin and has no power to affect sovereignty over them. The locus of sovereignty over these areas has not been determined and, in the view of the United States, should be left to future international solvents.

2. The Soviet Union has acquired no benefits from the San Francisco Peace Treaty, including benefits from Japan’s renunciation of claims to the Kuriles and South Sakhalin. After April 28, 1955 Japan will not be obligated to make a treaty with the Soviet Union on substantially the same terms as San Francisco, although of course it could do so.⁴

3. Japan’s only legal obligation vis-à-vis the Soviet Union after April 28 of this year is to abide by the Terms of Surrender of September 2, 1945,⁵ which incorporate by reference the Potsdam Proclamation of July 26, 1945.⁶ Potsdam in turn incorporates the statement issued at the Cairo Conference on December 1, 1943,⁷ which provides that Japan shall be expelled from all (other) territories which she has taken by violence and greed.

4. Japan argues that it did not obtain the Kurile Islands by violence but by peaceful means confirmed by international agreement. (The footnote on page 3 [4] of your memorandum of October 28, 1954 would appear to be an accurate statement, but the last part of the first full paragraph on page 3 [4] does not appear accurate where it is stated that South Sakhalin and the Kuriles were seized from Russia in 1905).⁸ Japan may claim that the Terms of Surrender provide no basis for renunciation of its claim to the Kuriles, and may seek to press this argument in negotiations with the Soviet Union and may in that case request United States support.

5. If the above arguments are tenable, the United States could take the position that Japan is not required, vis-à-vis the Soviet Union, to act as if it had renounced its claim to the Kuriles. The United States could even go farther and support Japan’s claim to the Kuriles as against the Soviet Union, although this might tend to throw the territorial provisions of the San Francisco Treaty into doubt. (The Yalta Agreement⁹ is not applicable since its terms were not incorporated in the San Francisco Treaty and since the Soviet Union has violated it—top of page 6 of your memorandum. The official position of the United States on the Yalta agreement is I presume as stated in the Senate Declaration of March 20, 1952,¹⁰ although strictly speaking this declaration applies only to the effect of the Japanese Peace Treaty.)

6. The United States supports Japan’s claim that the Habomais and Shikotan are not part of the Kuriles. Any action taken by Japan to establish this claim, such as presentation to the International Court of Justice, should not prejudice Japan’s claim vis-à-vis the Soviet Union that it has not renounced its claim to the Kuriles.

The political position the United States should take on this question is not clear, but it certainly will help to have a clear understanding of the legal limitations of our position. I should therefore appreciate your comments on the foregoing.

1. Source: Department of State, Central Files, 661.941/2–455. Confidential.
2. Dated February 4, not printed. (Ibid.)
3. Not printed. (Ibid., 611.94A/10–2854)
4. Article 26 of the Treaty obliged Japan to make a similar treaty for 3 years after its coming into effect (April 28, 1952) with any nation which had signed or adhered to the United Nations Declaration of January 1, 1942.
5. For text of the Instrument of Surrender, see Department of State Executive Agreement Series (EAS) No. 493, 59 Stat. (pt. 2) 1733, or Department of State Bulletin, September 9, 1945, p. 364.
6. Issued by the Heads of Government of China, the United Kingdom, and the United States. For text, see Foreign Relations, The Conference of Berlin (The Potsdam Conference), 1945, vol. II, p. 1474. The Head of Government of the Soviet Union adhered to the Proclamation on August 8.
7. See ibid., The Conferences at Cairo and Tehran, 1943, p. 448.
8. In the text of the memorandum, Snow spoke of Japan as having “seized” South Sakhalin and the Kuriles from Russia in 1905 as a result of the Russo-Japanese War. In the footnote, Snow pointed out that the North Kuriles became Japanese by an agreement of May 7, 1875, and that South Sakhalin became Japanese by the Treaty of Portsmouth, September 5, 1905. For Snow’s comment, see numbered paragraph 4, infra.
9. Apparent reference to the Agreement regarding entry of the Soviet Union into the war against Japan, signed at Yalta on February 11, 1945, by the Heads of Government of the United Kingdom, the United States, and the Soviet Union. For text, see EAS No. 498, or 59 Stat. 1823, or Foreign Relations, The Conferences at Malta and Yalta, 1945, p. 984.
10. For text of the Declaration made by the Senate on the occasion of the ratification of the Japanese Peace Treaty, see Department of State Bulletin, May 5, 1952, p. 689; see also Foreign Relations, 1952–1954, vol. XIV, Part 2, p. 1216.