Can Abe and Putin negotiate a draw in their territorial disputes?

The arc of Japan and Russia’s post-WWII ties can be traced to three foundational documents — the 1951 Treaty of Peace with Japan (San Francisco Treaty), the 1956 Japan–Soviet Union Joint Declaration, and the 1993 Tokyo Declaration. On 15 December 2016, Shinzo Abe will stand on the cusp of authoring a fourth document with Vladimir Putin that could deliver a bilateral peace treaty as well as substantially settle the long-festering territorial dispute between their two countries. Abe should not let the opportunity pass.

Japan and Russia disagree about the sovereignty of the islands of Etorofu (Iturup in Russian) and Kunashiri (Kunashir) and the sequencing of the repossession — by Tokyo — of Shikotan and Habomai islands.

For six decades and counting, Tokyo’s position on Etorofu, Kunashiri, Shikotan and Habomai has been steadfast.

These Northern Territories are Japanese but are illegally occupied by Russia. They were not acquired as a product of Russo–Japanese wars and so the 1943 Cairo Declaration’s injunction, which expelled Tokyo from territories acquired by ‘violence and greed’, does not apply to them.

The four islands were never part of Moscow’s territory until they were seized by Stalin during the dying days of the war — a seizure that violated the Japan–USSR Neutrality Treaty of 1941. Though the Soviet dictator would probably claim that the Agreement Regarding Japan at Yalta on 11 February 1945 was his license to seize the islands, Japan was not a party to this secret deal and is not bound by its provisions.

The ‘title and claim to the Kurile Islands’ that Japan renounced in San Francisco in 1951 did not cover these four Southern Kuril Islands. It pertained only to the Kuril Islands — the island chain Uruppu and northwards. Imperatives of ‘justice and law’ dictate that these islands should revert to Japan.

As Moscow’s power dimmed during the latter stages of the Cold War, Tokyo’s precondition hardened. A peace treaty could only follow once Russia acknowledged Japan’s sovereignty over the four islands. The government was prepared to be flexible on the timing and manner of their return.

Moscow’s position on the two largest islands in dispute, Kunashir and Iturup, has remained equally steadfast.

There is no sound legal reason for Tokyo to claim that these two islands are not part of the ’Kurile Islands’ that it renounced at the San Francisco Conference. Both the Russia–Japan Shimoda Treaty (1855) and St. Petersburg Treaty (1875) treated them as part of the Kuril chain and then Japanese prime minister Yoshida alluded as such in San Francisco when he noted that only the Habomai and Shikotan islands had constituted part of Hokkaido.

From an historical standpoint, Russia would never again jeopardise its far eastern security interests by ceding the two islands. Like the surprise attack on Pearl Harbour, which departed from Iturup, the first shots in the Russo–Japanese War of 1904 were treacherously fired before Tokyo’s declaration of war was received in St. Petersburg. ‘History and legalities’ firmly favour Russia’s case, although Moscow’s refusal to sign the San Francisco Peace Treaty means that the legal procedures concerning Kunashir and Iturup’s final sovereignty are yet to be settled.

Moscow has been more temperate in laying preconditions. With administrative rights over the two islands conferred by the Supreme Commander for the Allied Powers Order in September 1945, its solitary prerequisite is that a peace treaty is signed before Shikotan and Habomai are returned to Tokyo.

The essence of a solution between Abe and Putin in Nagato on 15 December will require a dexterous balance of two interrelated elements.

First, Abe and Putin must navigate between their respective ‘law and justice’ and ‘history and legalities’ based claims and delineate a set of non-sovereign, private rights that former Japanese residents of Kunashir and Iturup and current Russian residents on Shikotan can permanently enjoy across their administrative boundary once Habomai and Shikotan are transferred to Japan.

On Kunashir and Iturup, and in the Exclusive Economic Zone (EEZ) appurtenant to the islands, these non-sovereign rights should also extend to licensed Japanese business and fishing interests. Boris Yeltsin’s proposal at the November 1998 Kawana Summit to entrust a special legal status to the islands to pave the way for joint economic activities is an imaginative template.

Second, both Tokyo and Moscow should borrow a page from the territorial provisions of their 1956 Joint Declaration, which terminated their state of war and normalised relations. The Declaration envisaged the return of only Habomai and Shikotan after the conclusion of a peace treaty. But in their foreign ministers’ correspondence, which publicly accompanied the Declaration, the USSR agreed to continue negotiations ‘inclusive of territorial problems after the resumption of normal diplomatic relations’ — a reference to the unresolved status of Kunashir and Iturup.

In the forthcoming Nagato Declaration, Russia must similarly accept language that obliquely stresses the non-finality of the Kunashir and Iturup sovereignty question, while shelving the dispute for the time being. In exchange, Tokyo must stand down from its four island, two-stage-return precondition and revert to its willingness to conclude a peace treaty that is contingent only on the return of Shikotan and Habomai.

On 1 March 2012, just four days prior to returning to the Russian presidency, Vladimir Putin called for a hikiwake — the Japanese word for a draw — to the long-festering territorial dispute. In his territorial settlements with China and Norway, he has shown himself to be an expert practitioner of the concept. In Nagato, Abe must rise to the occasion and grapple Putin to a draw.

This article first appeared on East Asia Forum