WOCIT HP E-JRA-PROPOSAL(2)
25 January 2007 (29 December 2006)

The second PROPOSAL to Japanese and Russian sides
concerning contentious islands

25 January 2007

My Dear Mr. President of Russia Vladimir Putin
My Dear Mr. Prime Minister Shinzoh Abe
Dear Persons Interested

　　　The World Citizens' Tribunal (WOCIT)
　　　　　　　　　　　　　　　　President of the WOCIT, Prof. of Sapporo University Rikio Kaneko
　　　　　　　　　　　　　 President of the General Assembly of the WOCIT, Dr. Klaus Schlichtmann
Vice-President of the General Assembly of the WOCIT, Ph.D. William Carter
Chairperson of the Russian PC of the WOCIT, Dr.Kirill Cherevko
Vice-Chairperson of the Russian PC of the WOCIT, Alexey Kirichenko
Member of the PC of the WOCIT, Prof. of Sapporo Gakuin University Shohji Matsumoto
Member of the PC of the WOCIT, Prof. of Waseda University Hidetoshi Taga
Secretary of the Japanese PC of the WOCIT, Prof. of Sapporo University Noriaki Suzuki

The Supporters of the present PROPOSAL
Actor of the contested islands case presented to the WOCIT, Former islands Yayoi Ono
Member of the Board of directors of the Association of the former islanders
on Kurile islands and Habomai islands Koh'ichi Iwata
Former Sectional chief of the Hospital Nemuro Rinpo In Kashiwabara Sakae

1. Introduction

　　　1. We have the honor to inform you that for the purpose of contributing to the establishment of world peace and community ruled by law the World Citizens' Tribunal (WOCIT) has been functioning since the year 2000, using Internet and taking into account the multilateral interests of all human-beings as well as national interests. We should feel greatly rewarded for our effort, if the WOCIT would be of a help toward construction of the peaceful world, cooperating with the United Nations, world-wide or regional unions of deputies, organizations for promoting the World federation and so on.

　　　2. The World Citizens' Tribunal (WOCIT) has, as principal organs, not only a Central Court, but also a General Assembly. Taking into account that the WOCIT, which is of judicial character, can not remain indifferent to a recent case of poaching and shooting a vessel (which happened 16 October of last year) as well as the territorial problem, and earnestly hoping betterment of relations between Russia and Japan, the WOCIT General Assembly decided to send the present document to both of the Russian and Japanese Governments and the persons concerning the present case and territorial problems.

2. The second proposal of judicial settlement

3. 14 October 2005, the WOCIT proposed that the Japanese and Russian Governments would broaden their outlook on judicial settlement, not adhering to only diplomatic negotiation. Present document is the second Proposal to Russian and Japanese Leaders, in addition to the first Proposal, the spirit of which is still valid now (P.S.1) The most important proposal in the second document is as follows:

   　　　　　If Japan and Russia can not conclude a Russo-Japanese peace treaty
　　　　by diplomatic negotiation by the end of 2009 year, including in it a territorial
　　　　problem, then, by the end of 2010 year they will entrust International Court
　　　　of Justice with the settlement of the following legal problems concerning
　　　　contentious islands:

　　   4. The reason why the WOCIT, earnestly hoping the amicable settlement by negotiation, propose to use negotiation in combination with judicial settlement is that at present also we are ‘apprehensive, in the light of history of the diplomatic negotiation and present situation, that a only single track of diplomatic negotiation may be thrown on a rock again or be lost in a maze, consequently, could not break the dead lock, the settlement becoming far off,’ (preamble of the preceding Proposal) 

　3. Request to control oneself in case of gunshot

5. 16 August 2006 around a middle line between Japan and Russia a Japanese vessel Kisshin Maru, on suspicion of poaching, did not stop in spite of stoppage order of a Russian border patrol, and the patrol boat shot Kisshin Maru, killing a Japanese fisherman Mitsuhiro Morita. Consequently relations between Russian and Japanese sides went wrong around problems of delivery of fishermen, international responsibility (an apology) as well as the question of the title to the contentious islands, and it exerted a bad influence on other fields.

     6. As the General Assembly of the WOCIT is not a organ to declare law on a given case, the General Assembly of the WOCIT will only introduce some treaties and a judicial precedent concerning present case in the P.S. 2. Our WOCIT, however, requests Japanese and Russian sides to control oneself in such a case in the future, not speaking with an emotional bias, and to devise and decide the measures immediately which would prevent recurrence of such a case.

4. Russo-Japanese Joint Inquiry Committee

　　7. The WOCIT rather wishes that both of the Governments show a generous spirit of more mutual benefits and friendship concerning the contentious islands, and contribute not only to betterment of Russo-Japanese relations, but also to institutionalization of amicable settlement of conflict and establishment of peace in eastern Asia. The WOCIT’s concrete proposal is, firstly, the above-mentioned use of negotiation in combination with judicial settlement.    　
　
     8. Secondly, for the purpose of contributing to settlement of gunshot case which may happen again in future, the WOCIT proposes to set up a Russo-Japanese joint inquiry committee (a tentative name) . When the committee is established, it will open not only the possibility to investigate important proofs internationally, but also can lay the foundation stone for finding facts more fairly, so that in general, a case (a compromise or a judicial decision etc.) will be settled more fairly, and there will be rare, if any, such a case which took place this time, where the defendant, after returning to Japan, denied the facts which he recognized in a Russian court.

9.　It is very important that the establishment of the committee becoming an elementary institution model of settling conflicts, will be of great use also for preventing uprush of doubts and bad animosities concerning a given case, and the committee may be of the following organ mentioned in P.S.3

5. Request to interested persons

10. We will send the present document also to the bellow-mentioned persons interested directly or indirectly in the said case and the territorial problems, adding to it WOCIT's requests.　
　   1) UN General-Secretary
　　　　　In respect to the important external activities of the WOCIT, we have sent our reports sometimes to the United Nations. This time we will send our present document, adding the PROPOSAL which the WOCIT addressed to Russian President Mr. Putin V.V. and Japanese Prime-Minister Jun'ichiro Koizumi. It will be a great pleasure for us if you, dear Mr. Ban Ki-moon, will contribute to further development of Asian communities ruled by law and system of settling disputes.

　   2) Mass media
     The WOCIT would like to arouse attention of mass media to the request mentioned in above-mentioned document dated 14 November 2005: 'Mass media in Russia and Japan take up rarely the above-mentioned subject of joint use of diplomatic negotiation and judicial settlement. We wish mass media to focus on this problem and take a public-opinion poll on it'. (paragraph 17)

　　  3) Russian and Japanese authorities patrolling the sea and judicial organs
　　　　　The WOCIT would like to ask these organs mentioned for the followings:
　a. For the purpose of preventing Japanese ship's poaching, Japanese side will make the Japanese ships obligatory to equip themselves a GPS (Global Position System), to record their tracks electronically, will give further conclusive guidance to the fishing vessels, strengthen patrol over the sea around the contentious islands. On the hand, Russian authorities patrolling the sea shall use every discretion in order to evade a gunshot to a seaman.
　 b. Russian and Japanese authorities will furnish information immediately to each other on a given poaching or gunshot case.
　 ｃ. At least so far as a gunshot case is concerned, the authorities will send the important information measures not only to the Government of the other party, but also the self-governing communities concerned.

　　In 2007 after the celebration of the fiftieth anniversary of Japanese-Russian Joint Declaration of 1956, we expect that the second curtain will be opened for the further betterment and development of Japanese-Russian relations, and that it would be an model for start of Asian community ruled by law.

----------------------------------------------------

P.S.1． Judicial settlement of territorial problems
　　 The document dated 14 November 2005, in which the WOCIT requested Russian President Putin V.V. and former Japanese Prime-minister Jun'ichiro Koizumi, reads, among others, as follows:

　　　　13. Because no sure method to settle the territorial problem could not be found by diplomatic negotiation for a long time, we propose that both of Russian and Japanese
　　　　Governments will agree to a document (printed in italics) to this effect:
　　　　　14. If Japan and Russia can not conclude a Russo-Japanese peace treaty by diplomatic negotiation by the end of 2007 year, including in it a territorial problem, then, by the end of 2008 year they will entrust International Court of Justice with the settlement of the following legal problems concerning contentious islands:
　　　　　1) What territories are included in geographical concept of " Kurile islands ", which Japan renounced in San Francisco Peace Treaty of 1951?
　　　　　2) The islands, which Japan has renounced , are no man' land (terrae nullius) or Russian?
　　　　　3) If the answer to the second question is "No Man's land", then is the Russian occupation of these islands is lawful or unlawful?
　　　　　4) Does the Japanese-Soviet Joint Declaration of 1956, which stipulates that Habomai and Shikotan islands will be transferred to Japan after the conclusion of Peace Treaty between USSR and Japan, have binding legal force?
　　　　　5) Do Ainu peoples have indigenous rights concerning the contended islands? If they have, to what extent?   

At the closing stage of the Mr. Koizumi's cabinet, Russo-Japanese breach had so widened that Japanese and Russian Top Leaders could not announce a joint statement even if a top level meeting was held. Such a meeting was unprecedented. Here in the light of the limit of the politico-diplomatic means, the WOCIT's proposal has its validity all the more. Taking into account, however, that Abe Shinzoh's cabinet was formed recently (26 September ), the WOCIT propose again, revising the above-mentioned paragraph 14 in the bellow-mentioned way:
　　　　　　　If Japan and Russia can not conclude a Russo-Japanese peace treaty
　　　　by diplomatic negotiation by the end of 2009 year, including in it a territorial
　　　　problem, then, by the end of 2010 year they will entrust International Court
　　　　of Justice with the settlement of the following legal problems concerning
　　　　contentious islands:

　　　　　　　　P.S.２ Judicial settlement of territorial problems

　　The case of the I'm Alone is famous among cases concerning firing at a poaching vessel:

The US Coast Guard cutter Wolcott, operating off the Louisiana coast, hailed a Canadian schooner I'm Alone, suspected of smuggling liquor, on March 20, 1929. Although the I'm Alone was outside the three-miles limit, it was within one hour's sailing distance of the shore when first sighted. The I'm Alone refused to stop, and the captain of the Wolcott ordered blank shells to be fired in the direction of the I'm Alone, which began to head for the open sea. Wolcott pursued the I'm Alone, fired another shots across its bow and then continued to fire upon the ship until its gun jammed. On March 22 the Wolcott was joined by another cutter Dexter, which sank the I'm Alone 200 miles from the coast. Its crew jumped overboard, the boatswain was drowned. The master and the crew were convoyed to New Orleans, where they were kept in custody for 48 hours.
　
     Arbitration between the US and Canada went forward under Article �Wof a Convention of 1924. Canadian authorities said that sinking the I'm Alone was not justified in any case. But the United States maintained that sinking would not have taken place if the master of the I'm alone had ordered his ship to stop, that the sinking was therefore owing to the unlawful act of her master in refusing to heave to. In their Final Report the Commissioners stated:

     By their interim report the Commissioners found that the sinking of the vessel was not justified by anything in the convention. The Commissioners now add that it could not be justified by any principle of international law. The I'm Alone was employed for several years in rum running, was de facto owned, controlled by a group of persons who were entirely, or nearly so, citizens of the US. In view of the facts, no compensation ought to be paid in respect of the loss of the ship or the cargo. The sinking the ship, however, was an unlawful act, and the US ought formally to acknowledge its illegality, and to apologize to Canadian Government.

Among the cases of this kind the case of the I’m alone is known as a leading case, and is often cited. The treaty to be mentioned, first of al, is the Convention on the High Seas adopted by the United Nations in 1957.which, as for hot pursuit, stipulates almost the same content with the United Nations Convention on the Law of the Sea of 1982, which reads ‘The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State.’ (Article 111, 1.). ‘The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.’ (Article 111,4.) ‘The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State.’ (Article 111,3.)

　　　　　　　P.S.３．Russo-Japanese Inquiry Committee

　　 The WOCIT would like to propose to set up such a moderate and elementary organ as mentioned bellow, expecting that, if possible, Japan and Russia will work over the better mechanism in respect to a system of peaceful settlement of conflicts.

１．Name:
　　Russo-Japanese Inquiry Committee
２．Status:
　　１）The committee will be permanent
　　２）The committee will be independent from any Japanese and Russian organs.
３．　Composition
　　１）Japanese and Russian government will appoint one committeeman respectively,
　　　 a Chairperson will be appointed by the two members' agreement,
　　　 the Committee being composed of three members.
　　２）If especially agreed on a given case, composition of the committee may be
　　　 composed of in this way.
４．Function
　　１）The Committee has, in principle, a function to find facts on a gunshot case.
　　２）If agreed by both Governments of Japan and Russia, the Committee
　　　 may find facts of a poaching or other kind of a case.
　　　 　　　（Note: The function of the Committee is exclusively to find facts, so that the Committee
　　　　　　　　　　shall refrain not only from legal judgment concerning a given case, but also shall not
　　　　　　　　　　take up　the subject of belonging of the contentious islands.)　
　　3) Term of membership will be 5 years. Each member may be reelected.
５．The other investigating organs　
　　１） Not only State organs other than the Committee, but also organizations or individuals shall not be precluded from investigating facts independently as for a given case.
　　２） State organs may indicate evidence concerning facts by law.
　　　　（Note. This is a moderate proposal which would make it easy to reach
　　　　　　　　　　an agreement between Japan and Russia）