Japan v Kulikov
| Jurisdiction | Japón |
| Date | 19 February 1954 |
| Court | District Court (Japan) |
(Yamaguchi, President; Hoshimiya and Kanda JJ.
Territorial Waters — Innocent Passage — Meaning of.
War — Effects of Treaty of Peace — Postliminium — Treaty of Peace with Japan, 1951.
Belligerent Occupation — Nature and Effects of — After Unconditional Surrender — Surrender of Japan at End of Second World War.
Jurisdiction — Exemptions from — Foreign Government-Owned Vessels — Territorial Waters — Innocent Passage — Conditions of — War — Effect of Treaty of Peace — Instrument of Surrender of Japan — Effect on Jurisdiction of Japanese Courts — Effect of Treaty of Peace, 1951 — Postliminium.
The Facts.—The accused, a Russian national, was the captain of a patrol boat belonging to the Sakhalin Fishing Board and under the control of the East Sakhalin State Trust of the U.S.S.R. On August 1, 1953, he was with a crew of three on board the said patrol-boat in the port of Atolasov (formerly Chishiya), Sakhalin County, without a valid passport or seaman's book. He took a Japanese national, Sanjiro Seki, on board the patrol-boat in order to land him secretly on Hokkaido, in Japanese territory, at a place which was not a port. He entered Japanese territorial waters on August 2. On August 8, in Japanese territorial waters, he secretly took the said Sanjiro Seki on board to take him back to Sakhalin County. The accused thus twice entered Japanese territorial waters.
The accused was charged with violation of the Immigration Control Order,1 Article 4 of the Law No. 126 of 1952, and Articles 3 (1) and 23 of the Law of Ships.2 For the defence, it was contended (a) that the Court had no jurisdiction over the accused, for two
reasons. First, the Potsdam Declaration and the Instrument of Surrender were still effective between the U.S.S.R. and Japan. According to paragraph 6 of the Instrument of Surrender,1 Japan was bound to carry out in good faith the directives of the Supreme Commander for the Allied Powers or of any other designated representative of the Allied Powers. As the U.S.S.R. was a designated representative of the Allied Powers, the Japanese Government was under an obligation to carry out any requirements of the representative of the U.S.S.R. In the present case, the Soviet Mission in Japan had twice, on August 19 and 31, 1953, given the Japanese Government notice to release the patrol-boat and crew at once, and the Japanese Government was bound to release them. Secondly, it was contended that the patrol-boat in question had exterritorial rights because it was a public vessel owned and operated by the Soviet Government. The Japanese Court, therefore, had no jurisdiction over the accused, (b) If the circumstances surrounding the said Sanjiro Seki [that he might have been a spy] were left out of consideration, the facts in the present case showed merely that the accused entered Japanese territorial waters, and the right of innocent passage is admitted in international law. Therefore, even if the above facts were true, they did not constitute an offenceHeld: that the Court had jurisdiction. The accused was found guilty. He had “disturbed the fair and just control of entry into Japan”. Confiscation under Article 78 of the Immigration Control Order2 of the patrol-boat with its accessories was not, however, ordered, because they were the property of the Soviet State, even though they were in the possession of the accused.
I. Belligerent Occupation. After Unconditional Surrender.—In regard to the jurisdiction of the Court over the accused, the Court said: “The authority of the Japanese Government to govern the State of Japan derives from the Instrument of Surrender of September 2, 1945, and was made provisionally subject to the supervision and control of the Supreme Commander for the Allied Powers, until such time as the irresponsible militarism of Japan was destroyed—in other words, until a new order of peace and justice was realized and Japan's war-making power...
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