The Case for Self-Determination: Kuril Islands and the Ainu People

Situated between Japan and Russia, the Kuril Islands continue to be a source of political and territorial discourse. The most recent dispute revolves around the islands of Iturup, Kunashir, Shikotan, and Habomai. Controversy first struck with the 1855 Treaty of Shimoda, which established the border between Russia and Japan to begin with the Iturup and Urup islands. During the time between the first Russo-Japanese agreement and the end of World War II, several treaties were drafted, foreshadowing a future of uncertainty. This perpetual state of change set the foundation for the Kuril Islands disputes alongside persistent colonization of the islands, fostering an environment of hostility. The fall of the Japanese Empire following World War II allowed the Soviet Union to annex the islands; however, Japan asserted ownership of the Southern Kuril Islands (Northern Territories), preserving the tension between the two countries. The lack of a formal peace treaty between Japan and Russia can be attributed to the decades-long dispute regarding the islands. 

Nations often turn to the International Court of Justice (ICJ) to settle territorial disputes. While numerous principles are utilized, this paper will examine the usage of self-determination. The notion of self-determination is deeply embedded within societal and political issues. The lack of cooperation between the two nations leads to the continual dismissal of the native inhabitants of the Kuril Islands, the Ainu people. Self-determination is critical in examining the autonomy and rights of the Ainu people. Self-determination appears in numerous international legislations, including the Charter of the United Nations (1945), the General Assembly Resolution, and the International Law Commission (2019), to name a few. The definition of self-determination has been developed through numerous iterations of international law and continues to be redefined. The first introduction released alongside the Charter of the United Nations (1945) states its desire for nations to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” The ambiguity surrounding the definition fails to enable self-determination as a legitimate and influential principle in international law. Without specific phrasing, the definition of self-determination is easily lost within the vagueness. Furthermore, the United Nations does not guarantee self-determination as a human right and fails to denote the separation between “nations” and “peoples.” The lack of separation between nations and peoples suggests that people are not rooted within a nation’s fabric, but instead a separate entity. A possible explanation for this is the lack of anti-colonial sentiment in the 1940s, as numerous founding nations were reluctant to relinquish autonomy to overseas territories. The United Nations General Assembly Resolution 2625 (1970) offers its most extensive definition of self-determination by granting the authority to “freely to determine, without external interference, their political status and to pursue their economic, social and cultural development.” This resolution serves as the most powerful piece of legislation for the Ainu people, as cultural and social development are attached to self-determination. For centuries, the Ainu people have born egregious violations to their land and people by the governments of Moscow and Tokyo. Under the Japanese Meiji government in 1868, forced assimilation and a systematic intolerance towards the Ainu people nearly eradicated their culture and language. The UN General Assembly Resolutions offer a legal framework and leverage for the Ainu people to argue for autonomy. As an officially adopted document, both Russia and Japan are legally bound to this legislation. Most recently, progressive movements to restore cultural identity and the lives of indigenous people are reflected with the finalization of the United Nations Declaration of Indigenous Rights (UNDRIP) in 2007. Although the declaration is not legally binding, Japan’s approval of the legislation reveals the potential for a bright future for the Ainu people. However, Russia, the legal owners of the islands, abstained from voting. This document defines the rights of indigenous populations and encourages nation-states to cooperate with native populations, which could offer a path for the Ainu People to declare some level of autonomy. Though nearly every article within the UNDRIP resonates with the Ainu people, Article 3 clearly stresses the importance of indigenous people to, “have the right to self-determination” and through self-determination, they can “freely pursue their economic, social and cultural development.” Despite Japan’s recognition of the Ainu people as a minority and indigenous population, Japan has hindered the Ainu’s ability to express their cultural development on the island of Hokkaido by prohibiting fishing on the Tokachi River. Similarly, Russia banned the Ainu from fishing around the south Kuril Islands - lands from which they originate. It is difficult to enforce rules upon countries, especially when considering the lack of historical treaties established between the Ainu people, Japan, and Russia. 

This parallels the case of Kaho’olawe, an island in Hawaii, and the United States. The United States annexed Hawaii under the controversial Newlands Resolution in 1898 and recognized Hawaii as an official state two years later. Similar to the Kuril Islands and Japan, the United States transformed the island of Kaho’olawe into a military base, resulting in significant cultural and environmental damage. Kaho’olawe continued to serve as an American military base until 1990 when President George Bush ceased Naval operations on the Island. 

Introduced in 1993, Title X of the 1994 Department of Defense Appropriations Act officially returned Kaho’olawe back to the State of Hawaii, recognizing the cultural significance attached to the island. The legislation required the Navy to clean up hazardous materials and substances surrounding and on the island. Kaho’olawe is a symbolic precedent of an indigenous group regaining sovereignty. While the island remains uninhabited, numerous religious ceremonies were hosted there, explaining its cultural and historical significance, and exemplifying elements of self-determination. The United States’ acknowledgment of cultural and social development and preservation contributed to the island’s sovereignty. 

The ability of Hawaiians to retrieve Kaho’olawe provides a beacon of possibility for the Ainu people. Much like Kaho’olawe, the Kuril Islands hold centuries of history and culture for the Ainu population. When comparing this case study to the Kuril Islands, a bilateral agreement between Japan and Russia could transpire. Russia’s current war with Ukraine has left the country to exhaust its Western alliances and ties. If Russia is to attempt to garner international approval, reconciliation with Japan through the Kuril Islands could be an option. The Kuril Islands have continually deteriorated Russo-Japanese ties, with the recent militarization of the islands only exacerbating the issue. While a complete transfer of power to the Ainu people is unlikely, Japan and Russia could offer one of the Southern Kuril Islands, under a joint administration, to the Ainu people, allowing them to facilitate cultural practices. This proposed solution would be the first step towards improved Russo-Japanese ties. A bilateral administration of one of the Kuril Islands under a mutual goal of benefitting the Ainu population could be Russia’s first step back onto the international stage. Under this hypothetical scenario, both Russia and Japan would contribute monetary aid to build infrastructure and secure the Ainu people for future generations. This symbiotic transaction would serve as reparation towards the Ainu people and would provide both countries with positive publicity. However, it is important to examine the significance of the Kuril Islands on a geographical level. The Kuril Islands offer direct access to warm waters for Russia. Historically, Russia’s desire to gain access to warm water ports has led to conflict. With this in mind, Russia would likely be reluctant to a complete handover and would likely require some type of authority over the island. Additionally, the Kuril Islands are rich in resources, with an abundance of sulfur and oil reserves surrounding the islands. To mitigate both issues, an alternative option would be to implement a joint development zone. This would allow Russia to extract resources around the island while providing land for the Ainu population to live.

 Another influential case is East Timor’s (Timor-Leste) utilization of self-determination. Portugal’s indifference towards its Asian colony allowed Indonesia to forcefully annex East Timor. The invasion of East Timor left thousands of citizens dead, leading to the United Nations releasing Resolution 384 (1975) granting the citizens of the island “the inalienable right of the people of East Timar to self-determination and independence.” After this resolution, the people of East Timor voted on a referendum separating themselves from Indonesia and solidifying their independence. While the case of East Timor offers a concrete example of the historical influence and success of self-determination, the way in which self-determination was interpreted carries significance and provides a far more interesting story. 

Despite self-determination status as jus cogens, questions still surround its legitimacy. The inherent open-endedness of self-determinations also serves as its downfall. Its ambiguity raises concerns over how self-determination should be applied and when. For example, if Japan and Russia have differing interpretations of the law, how would the Ainu people be affected, and how would a disagreement be resolved? The cases in which self-determination was successfully applied are case-specific and fail to provide a formula to be used in the future, only further breeding inconsistencies within the law. The paradoxical nature of self-determination is one rooted within the ethos of its meaning.

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1 Charter of the United Nations and Statute of the International Court of Justice, June 26, 1945

2 59 Stat. 1031; T.S. No. 993; 3 Bevans 1153. https://treaties.un.org/doc/publication/ctc/uncharter.pdf.

3 Dev Kumar Sunuwar, “Ainu People Reclaim Their Rights,” Cultural Survival (2020), https://www.culturalsurvival.org/publications/cultural-survival-quarterly/ainu-people-reclaim-their-rights.

4 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90. https://www.icj-cij.org/case/84.

5 Ike Barrash, “Russia’s Militarization of the Kuril Islands: New Perspectives on Asia,” CSIS (2022), www.csis.org/blogs/new-perspectives-asia/russias-militarization-kuril-islands. 

6 Jakob R. Avgustin “The United Nations and Self-Determination in the Case of East Timor,” E-International Relations (2020), www.e-ir.info/2020/02/27/the-united-nations-and-self-determination-in-the-case-of-east-timor/. 

7 “Kuril Islands Dispute between Russia and Japan,” BBC News (2013), www.bbc.com/news/world-asia-pacific-11664434. 

8 Newlands Resolution, July 7, 1898, Public Resolution 55-51, 30 Stat. 750. https://www.hawaii-nation.org/annexation.html.

9 Rich Motoko and Hikari Hida, “Japan’s Native Ainu Fight to Restore a Last Vestige of Their Identity,” The New York Times (2023), www.nytimes.com/2023/07/02/world/asia/japan-ainu-fishing.html. 

10 San Francisco Peace Treaty art. 2, Sept. 8, 1951, 3 U.S.T. 3169, 136 U.N.T.S. 243. https://treaties.un.org/doc/publication/unts/volume%20136/volume-136-i-1832-english.pdf. 

11 Sonya Fatah, “East Timor’s Struggle for Self-Determination,” Pakistan Horizon, vol. 51, no. 3 (1998), pp. 57–81 JSTOR, http://www.jstor.org/stable/41394448.

12 Title X, May 6, 1994, Public Law 103-139, 107 Stat. 1418. https://www.kahoolawe.hawaii.gov/rules/leg.htm#Title.

13 U.N. General Assembly, United Nations General Assembly Resolution 2625, A/RES/2625 (Oct. 24, 1970). https://digitallibrary.un.org/record/202170?ln=en.

14 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295, 46 ILM 1013 (2007). https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

15 “United Nations Declaration on the Rights of Indigenous Peoples,” (Voting Record), United Nations General Assembly (2007). https://digitallibrary.un.org/record/609197?ln=en.

16 U.N. Security Council, Resolution 384, S/RES/384 (Dec. 22, 1975). https://digitallibrary.un.org/record/93735?ln=en.