竹島問題の歴史

23.5.13

Agreement Respecting the Disposition of Former Japanese Territories Part II


I.Documents concerned with “Agreement Respecting the Disposition of Former Japanese Territories”

1) U.S. Draft dated November 2, 1949(original source is here)

The Bureau of Far Eastern Affairs of US Dos assumed that Japan cedes a part of her territory to China and Soviet directly.
Article 4
1. Japan hereby cedes to China in full sovereignty the island of Taiwan (Fomasa) and ……….
Article 5
1. Japan hereby cedes to the Union of Soviet Socialist Republics in full sovereignty the portion of the island of Sakhalin (Karafuto) …….
Article 6
1. Japan hereby renounces in favor of Korea all rights and titles to the Korean mainland territory……..

2) Sebald’s proposal about the method of the disposition, November 19, 1949(original source is here)

Sebald recommended a subsidiary document which define disposition than the direct cession by the treaty.
Article 4 through 12. We suggest that in the treaty Article 4 through 12 of the November 2 draft be omitted, and that in a document subsidiary to the treaty among the signatories other than Japan the disposition of the treaties formerly under Japanese jurisdiction be agreed upon. The necessity of direct cession would thereby be removed from the treaty proper and Japan would not rest under the necessity of being a party to it.

3) Boggs's proposal about the territorial clauses on Dec 8 , 1949 (original source is here)

Boggs drafted territorial clauses according to the Sebald's suggestion and sent to the Bureau of Far Eastern Affairs.
Article 4
Japan hereby [cedes and] renounces all territory <, all territorial claims ???????> and all mandate, and concession rights, titles and claims outside the territorial area described in Article 3, and accepts the disposition of these territories that has been made or that may be made by the parties concerned, or by the United Nations in accordance with the trusteeship provisions of Articles 77, 79, and 85 of the Charter of the United Nations.

4) Territorial Clauses & Agreement Respecting the Disposition of Former Japanese Territories, Dec 15, 1949(original source is here)



The Bureau of Far Eastern Affairs modified the Boggs's territorial clauses and drafted the "Agreement Respecting the Disposition of Former Japanese Territories". The draft of the agreement was incomplete with many mistakes. "Territorial Clauses" and "Agreement Respecting the Disposition of Former Japanese Territories" contradicts in the point of Takeshima. The Bureau of Far Eastern Affairs sent those documents to the Legal Adviser of Dos on Dec 15, 1949.

Territorial Clauses of Peace Treaty
Article4
1. Japan hereby renounces on behalf of itself and its nationals all territorial and mandate rights, titles and claims outside the territorial area described in Article 3.
2. The Allied and Associated Powers retain their rights in respect to disposition of the territories referred to in the preceding paragraph which were under Japanese sovereignty, pending conclusion of an agreement or agreements among them providing for disposition of such territories.
Agreement Respecting the Disposition of Former Japanese Territories
Article3
The Allied and Associated Powers agree that there shall be transferred in full sovereignty to the Republic of Korea all rights and titles to the Korean Mainland territory and all offshore Korean islands, including Quelpart (Saishu To), the Nan how group (San To, or Komun Do) which forms port Hamilton (Tonaikai), Dagelet Island (Utsuryo To, or Matsu Shima), Liancourt Rocks (Takeshima),.... 

5) The Legal Adviser responded to the Bureau of Far Eastern Affairs on Dec 19, 1949(original source is here)

 The Legal Adviser was negative for making a two ducument plan. This is last record about the draft of the agreement. Dos did not correct even mistakes of the draft.
Since territorial dispositions are generally matters of considerable importance to the various nations concerned, most nations would doubtless desire that the disposing document be of the same dignity, namely, a treaty. Hence, two documents would need to be ratified. Where the intended recipient is agreed upon, and no important matters call for outside action, it would be a matter of some difficulty to explain to other nations the necessity for the departure from practice, unless a substantial reason appeared. It is our understanding that the reason advanced for separate documents in the case of cession of Japanese territory is that the absence of “cession to” clauses in the Treaty of Peace will be of psychological benefit to Japan.

6) U.S. Draft dated December 29, 1949(original source is here)

The Bureau of EA gave up two documents plan and rolled back to the direct cession plan.
Article 5
2. Japan hereby cedes to the Union of Soviet Socialist Republics in full sovereignty the portion of the Kurile islands.
Article 6
1. Japan hereby renounces in favor of Korea all rights and titles to the Korean mainland territory……..

7) S.F. treaty on September 8, 1951

Finally, Allies gave up direct cession and Japan simply renounced her territory by the treaty.
(a) Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.
(b) Japan renounces all right, title and claim to Formosa and the Pescadores.
(c) Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of September 5, 1905.

However Allies did not determine the disposition of the renounced territory. Then the disposition became indefinite.

PRINCIPLES OF PUBLIC INTERNATIONAL LAW, Ian Brownlie
Sovereignty may also be indeterminate so far as the process of secession may not be seen to be complete at any precise point in time. [...] For example, in a peace treaty Japan renounced all right to Fomasa. However, Fomasa has not been the subject of any act of disposition; it has not been transferred to any state.

II. Analysys of “Agreement Respecting the Disposition of Former Japanese Territories”

1)FACT

  • This draft of the agreement is the primitive draft which has many mistakes and blanks.  US Dos swiftly abandoned this draft after receiving the Legal adviser's suggestion.
  • This draft of the agreement is internal document of the US Dos. Allies didn't know this draft of the agreement, because US Dos didn't distribute to Allies. Allies neither  signed or ratify at this document, too.
  • This draft of the agreement is contradictory to the San Francisco treaty about Takeshima. The Allies don't have authority to dispose a territory without an agreement of Japan. Because Japan didn't renounce Takeshima at the SF treaty, Allies don't have the power of disposition about Takeshima. 

2)The difference from the Rusk note

  • Rusk note was made based on the treaty draft dated June 14. The sentence of the Article2 of this draft is same as the S.F. treaty. Then Rusk note is adjusted with S.F. treaty. But this draft of the agreement contradicts the S.F. treaty
  • While Rusk note was a formal bilateral diplomatic document issued by drafter of the Treaty and sent to ROK government, this draft in concern was just an internal primitive document which has no trace of distribution to any other countries outside.

Which is more important between the San Francisco treaty with signatures by Allies and Japan, and this draft of the agreement without signatures?  Of course, priority is given to the S.F. treaty. Supplementary means of interpretation of the treaty can't use in order to deny the treaty.

3) Korean interpretation

Dokdo Research and Preservation Association & Dokdo Institute
"Agreement Respecting the Disposition of Former Japanese Territories"(1950) drafted in preparation for the San Francisco Treaty in 1951 stated Dokdo as a"Korean territory' in substantive enactment. Therefor although Dokdo was not mentioned in San Francisco Peace Treaty, Dokdo was recognized as a Korean territory in "Agreement Respecting the Disposition of Former Japanese Territories" and "SCAPIN No. 677".
 "Agreement Respecting the Disposition of Former Japanese Territories" is internal primitive draft. Because Japan and Allies didn't agree, this draft of the agreement is legally invalid. Moreover the their interpretation about SF treaty violates the "Principle of Completeness of Boundary Treaties" of the international law.

Advisory Opinion of the Permanent Court on the Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (1925)
It is . . . natural that any article designed to fix a frontier should, if possible, be so interpreted that the result of the application of its provisions in their entirety should be the establishment of a precise, complete and definitive frontier.



Special thanks to Matsu and Kaneganese