WOCIT HP 2002-3-10
THE WOCIC MENTIONED
IN A PAPER IN THE UN UNIVERSITY
Rikio Kaneko
28-31 August, 2000, Global Seminar of the UN University was held in Sapporo
in Japan. I read a paper on territorial problem and rule by law, not by
self-righteousness and force. To my audience, I distributed some materials
in advance including in it an extract on the WOCIC. This was the first
happy and unhappy WOCIC member's contact with the UN system.
When I was appointed as one of reporters by the UN University committee
composed of scholars in Hokkaido, I was very thankful for selecting me
as an informer, but I was greatly surprised at the request of the promotor
of the UN University. He asked me to withdraw the extracts on the WOCIC
from circulation in spite that the WOCIC was born in Sapporo because of
interested states' inability to settle the territorial problems of long
standing and because of defects of the international judicial system in
20th century!
It was the first time for me in my life to be requested to withdraw such
kind of the important materials from an audience. I can not help thinking
that in the UN University there are some elements which hinder the freedom
of science and the progress of humankind.
It seems not to be by chance that according to Hakkaido Shinbun (newspaper)
dated 16 June, 2001, this summer Chairperson of UN University committee
for Global Seminar in Otaru Prof. Aiuchi criticized the attitude of the
UN University because of its lack of a sense of respect of human rights:
the UN University did not like content of intended presentation of one
of reporters Mr. Arudo Debido from America who was going to read a paper
on public bath's closed door for fereigners in Otaru city in Japan. Chairperson
Toshikazu Aiuch did not agree with the UN University, and preparation of
the second Global Seminar in Hokkaido did not succeed.
Anyway the resume and the full text of my paper which I read last summer
are as follow:
Resume on settlement of boundary disputes
Boundary disputes may arise in relation to five modes of acquiring territory, namely: cession（譲渡）, occupation（先占）, accretion(添付), subjugation（征服）, and prescription（時効）.
When a boundary dispute takes place, the parties must seek a solution by negotiation（交渉）, enquiry（審査）, mediation（仲介）, conciliation（調停）, arbitration（仲裁裁判）, judicial settlement（司法的解決）, resort to regional agencies or arrangements（地域的機関または地域的取極）, or other peaceful means of their own choice. (cf. Charter of the United Nation, Article 33. Paragraph1)
It is true that many boundary disputes have been settled by such peaceful means and the UN has been playing a great role in settling boundary disputes. It is noteworthy that even in 20th century about 50 territorial problems have been resolved by arbitration and judicial settlement because of the failure of diplomatic negotiation.
There remain some fundamental problems in the system of peaceful settlement of boundary disputes: 1) The UN Security Council is sometimes not able to play a decisive role by the veto right. 2) Unlike in national legal orders, there is no international court of justice in the world at present time which has universally compulsory jurisdiction.
As a result, states have been many times acting subjectively or self-righteously, and even now there remain several territorial problems of long standing. It is with such situations for background that civil international courts of justice continued to appear here and there in the world.
One of recent courts is a universal and permanent “World Citizens’ Court”(neutral international NGO) which was born in Sapporo in May, 2000 and to which has been already submitted a territorial problem by citizens.
There are other territorial problems which are still unsettled. According to the judgement by the ICJ in the North Sea Continental Shelf Cases of 1969, conflicting parties should begin to negotiate for the purpose to reach to agreement and if they can not reach an accord, the contentious area should be divided equally. This judgement is remarkable in the sense that the rule seems to be of general character. International courts developed other important principles and rules on territorial problem.
Unsettled territorial problems lead often to armed conflicts. In the 21th century, will not be established an Earth Society ruled by law, not by force?
A Full text of the report for the UNU Global Seminar
Peaceful Means of Settlement of Territorial Disputes
From Japanese-Russian Territorial Problem to the World Citizens’ Court
1. Introduction
Ladies and gentlemen!
First of all I would like to express my gratitude to the UN University and the Preparatory Committee of UNU Global Seminar for giving me a chance to report on territorial disputes and the peaceful means of the settlement. At the same time I am pleased that today I can talk on this theme with young participators in this Global Seminar because the 21st century depends upon young generations.
Today I want to give a short lecture on the above-mentioned problem in general form mainly from the viewpoint of international law, citing sometimes Russian-Japanese territorial problem and other territorial cases of the 20th century. Lastly as a fact I would like to mention a little why an epoch-making universal and permanent World Citizens’ Court was born this spring in Sapporo.
Spring is a good season for all things to be born, and summer is the time when living things grow rapidly. One day in summer I found in my garden a grapevine invading my neighbor’s garden. I said to my neighbor, ”Sorry, my grape seems to be already drunk before turning to be wine.” Then I made an arch to be tangled with my vines and set up the arch within an area which seemed be mine.
But according to my neighbor, the section where some legs of the my arch were set might his earth. Both of us were not sure of our exact boundary because the boundary stones were somewhere hidden under the earth. Anyway we agreed with each other and drew a boundary line concretely, quickly and friendly without any difficulties. I am still not sure whether our boundary line was exact or not, but I thought that the friendship and border by consent are more valuable than inaccurate delimitation.
Let us suppose that it has been difficult for conflicting citizens to reach an agreement on their boundary for a long time because of the each party's continual insistence that he is right and the other party is wrong. It would be extremely disagreeable for such neighbors to live together. It is probable that one of the parties will bring an action to a court of justice in his country if he wants to settle the boundary problem finally. It is natural and reasonable because courts of justice are ultimate guardian of law.
But unlike in national legal
order, there is no international court of justice in the world at present which
has universally compulsory jurisdiction. So remain legal problems unsettled.
2. Acquisition and Loss of territories causing
disputes
Boundary disputes may
arise not only in relation to such modes of acquiring territory, namely:
cession, occupation, accretion, subjugation, and prescription, but also through
such modes of losing territory, namely: dereliction, operations of nature,
revolt and so on.
1)
Cession Alaskan boundary case of 1903 relates to the cession of Alaska to
the US. The form in which a cession can be effected is an agreement embodied in
a treaty that may be the outcome of peaceable negotiations or of war.
San-Francisco Treaty of
Peace stipulates that "Japan
renounces all right, title
and claim to the Kurile Islands". This renouncement is not
unilateral act but it is based on the agreement of the contracting parties of
the treaty.
2) Occupation Occupation is the
act of appropriation by a State by which it intentionally acquires sovereignty
over such a territory as is at the time not under the sovereignty of another
State. Relating to occupation, disputes often take place as for the first
discoverer of the contentious section and effective occupation.
3) Accretion Accretion is the
name for the increase of land through new formations. El Chamizal caseof 1911
is a very interesting example.
4) Subjugation A territorial
dispute may arise from subjugation, but in so far as war is prohibited by
modern international law, the conquest by a State will be invalid which acts
contrary to international law.
5)
Prescription. According to one of the definitions of prescription, it is the
acquisition of sovereignty over a territory through continuous and undisturbed
exercise of sovereignty over it during such a period as is necessary to create
under the influence of historical development the general conviction that the
present condition of things is in conformity with international order.
6)
Dereliction Dereliction frees a territory
from the sovereignty of the present owner-State. Very often, when such
occupation of derelict territory occurs, the former owner protests, and tries
to prevent the new occupier from acquiring it (cf. an alleged abandonment by
Great Britain of the Falkland Islands;
Eastern Greenland case; Island of Santa Lucia case; and Delagoa Bay case; and
the North Atlantic Coast Fisheries Arbitration of 1910)
7)
Operations of nature Operation
of nature as a mode of losing territory correspond to accretion as a mode of
acquiring it.
8)
Revolt Thus the former Spanish
South American States fell away from Spain in 1810, Asian and African States
became independent through the course of decolonisation from the Powers in the
20th century, entailing many territorial problems.
3．Ambiguous Elements around Territorial Disputes
An example of the dispute
among Japan, Russia and Ainu
“All the things change.” So change territories and the lawful modes of acquiring and losing
territory: principles and rules of international law are subject to alterations
as those of internal law are. In the course of changing circumstances, there
appear many colorful and ambiguous legal elements on which it is difficult for
even a jurist to declare which one is in accordance with international law,
though there may remain some principles and several rules which are too hard to
change their contents fast and distinctly.
How do you and jurists consider, for example, about the
following legal aspects in the Japanese-Russian territorial problem?
1) Occupation To
what extent do principles and rules on occupation should be applied to the said
problem? Does such a historical fact has any or decisive meaning that Russia or Japan found the contentious islands first and occupied them effectively?
It seems to
me that these facts before 19th century have neither legal nor
decisive meaning because since then international treaties have been concluded,
and sovereignty over the islands depends upon the right interpretation of the
existing treaties and the present legal norms resulting from international
custom.
2) Indigenous right Does Ainu race have indigenous rights to the contentious islands?
If so, to what extent?
From the viewpoint of modern international law, maybe, the historical and legal fact that Ainu is indigenous people is comparatively far more important than an above-mentioned fact of occupation of the islands: because whereas the rules on occupation is not applied to the contentious islands, international society is recognizing more clearly than before indigenous rights in general form. At the beginning of the 21th century will be adopted a declaration on the indigenous
race by the United Nations.
3) Aggression (1)Admitting that Japan was an aggressive State before and during the World
WarⅡ, was it not a
kind of aggression of the USSR which declared and waged war against Japan in
violation of the neutral treaty of 1941?; or
(2) Was neutrality of the USSR rather contrary to the obligation to stop the Japanese aggression?
(3) Supposing that the USSR
committed also aggressive acts in the above-mentioned sense, do the Charter of
the United Nations, Article 107 and the Vienna convention on treaties, Article
75 justify all the acts of the USSR?
Charter of the United Nations, Article 107 stipulates
that "Nothing in the present
Charter shall
invalidate or preclude action, in relation to any state which during the Second
World War has been an enemy of any signatory to the present Charter, taken or
authorized as a result of that war by the Governments having responsibility for
such action." Essentially in that
way the said Vienna convention of 1969 provides.
4)
Sphere of “Kurile islands” Are
Kunashiri i. and Shikotan included
in the “Kurile islands” which Japan renounced by the San-Francisco
peace treaty of 1951 concluded with 48 States?
At the time of the conclusion of the treaty, the Governments of Japan and the USA thoughtin that way, afterwards changing their interpretation otherwise. However, the opinions of authoritative jurists and overwhelming majority of cases in the world show that the intentions of the contracting parties at the time of ratification is more important than unilateral interpretations adopted afterwards by some parties.
In 1909 in the judgement of the North
Atlantic Fishery Case between England and the USA, the arbitration
court held that legal conception “all the bays” (associate "Kurile
Islands" ---author) had to be
interpreted as general meaning which might be reasonably imagined to be thought
by the negotiators of the treaty in the general circumstances at that time.
The Eastern
Greenland case of 1931 between Denmark and Norway is also interesting.
Permanent Court of International Justice held , "the geographical meaning
of the word "Greenland" ,i.e. the name which is habitually used in
the maps to denominate the whole island, must be regarded as the ordinary
meaning of the word."
According to the said judgement, not only in the course of diplomatic negotiation but also by the treaty of 1819 (associate San-Francisco peace treaty 1951), Norway recognized to renounce the sovereignty over the whole of Greenland and consequently can not proceed to the occupation of any part thereof.
5)
Binding Force of the Russian Joint Declaration of 1956 Does the said Declaration have a legally binding force upon Russia? It is a
treaty, and a treaty has a binding force. But in 1960 the Government of the
USSR presented unilaterally a condition to which the Japan could not agree.
Since then the policy of non-recognition or implicit approval of its validity
turned to be a kind of political game. In the Kutana Arica case of 1925 between Peru and Chili the court did not recognize the claim of Peru which wanted to be freed from the obligation resulting from the treaty of 1883.
There are the other points
of contention in the Japanese-Russian territorial problems. Some of these
points are ambiguous, and the others are comparatively clear. No individual nor
a State can be exclusively a omnipotent God. It is international courts of
justice that are most suitable and competent to clarify the existing rights and
duties of the subjects of international law.
4. Peaceful Means of Settling Territorial Disputes
Boundaries are so important
that disputes relating thereto are frequent and have often led to irritating
emotion, armed conflicts and even wars. During the 19th century,
however, a tendency began to prevail to settle such disputes peaceably.
Spanish-American States adopted the doctrine uti pssidetisfor the
purpose of avoiding and solving boundary disputes. According to one of the
dictionary of international law, the principle of uti possidetis is called the principle of recognition of status
quo, which means to recognize former administrative divisions of ex-colonies
when they become independent States:
According to modern
international law, war is prohibited. Therefore, when a boundary dispute takes place, the parties must seek a
solution by peaceful means, namely: negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements,
or other peaceful means of their own choice. (cf. Charter of the United
Nation, Article 33. Paragraph1)
It is true that many
boundary disputes have been settled by negotiation and other peaceful means and
the UN has been playing a great role also in settling boundary disputes.
In the case of diplomatic failure judicial settlement is one of fair, cultural, reasonable and certain systems of settling international conflicts for many reasons. It is noteworthy that even in 20th century
about 50 territorial problems have been submitted to international courts of justice (including arbitration) when politicians and diplomats could not settle
them.
On the other hand, there remain some fundamental problems in the
system of peaceful settlement of boundary disputes:
1) The UN Security Council is sometimes not able to play a decisive role owing
to the veto right.
2) Unlike in national legal orders, there
is no international court of justice in the world at present which has
universally compulsory jurisdiction.
As a result, States have
been many times acting subjectively or self-righteously, and even now there
remain several territorial problems of long standing. In addition to these
facts, conflicting parties are sometimes too egoistic and nationalistic, some
of them may turn to be aggressive, causing armed conflicts or wars.
5. Toward the
World ruled by Law
The
World Citizens' Court by Citizens and for Citizens
There are other territorial
problems which are still unsettled and which may lead to aggravation of
national emotion or to armed conflicts. States have to resolve the problems in
accordance with international law. According to the judgement by the ICJ in the
North Sea Continental Shelf Cases of
1969,
1)conflicting parties should begin to negotiate for the purpose to reach agreement; and
2)if
they can not reach an accord, the contentious area should be divided equally.
This judgement is
remarkable in the sense that the Court showed a reasonable way of settling
territorial disputes. International courts developed other important principles
and rules on territorial problems. But at present there is neither universally
obligatory treaty nor universally compulsory court of justice on territorial
disputes. So negotiations may be nominal, may be dancing, may turn to be a
political game.
There is preliminary result of a questionnaire which suggests that majority of citizens in the world prefer “the rule by law” to “the rule by force”. Some existing systems are convenient for States to behave self-righteously, and it is possible that such systems will become further separate from the aspirations of the world citizensof the new century.
It is with such situations
for background that civil international courts of justice continued to appear
here and there in the world.(For
examples, the Bertrand Russel court which dealt with Vietnam war; the
international court for judging the Chernobuil case which was composed of seven
judges; the "World Citizens' Court" for settling Israel problems; and
the womens' international court dealing with criminals; and the other recent
"World Citizens' Court". It
is said that other examples exist, too.)
One of recent examples is a universal and
permanent “World Citizens’ Court”(WOCIC) which was born in Sapporo in May, 2000
and to which has been already submitted two territorial problems by common citizens
of the world, 1) the first is a case concerning the territorial problem among
Japan,
Russia and Ainu; and
2) the second is a Kashmir
case in which India, Pakistan and China
are conflicting
parties.
The WOCIC is an epoch-making internet court of justice. Every citizen of the world can bring an action to it. And in one case not only 15 specialists in international law will participate, but also may take part many Citizen Judges whom every Top State Leader, Governor, Mayor, Head of a town and Head of a village all over the world may recommend.
However, it is clear that the creation of a
weak court is not sufficient in order to establish the World ruled by law, and
that internationally authoritative judicial organ is necessary which is
stronger than those of 20th century and has universally compulsory
jurisdiction as courts of justice in internal legal order. We must do something
new. For me it is to strengthen the World Citizens' Court as an its initiator.
It is not only my romance, but also what overwhelming majority of citizens in
the world whishes.
I thank you for your kind
attention, express my gratitude to the UN University and to my colleagues of
the Preparatory Committee. Thank you.