Soviet Socialist Republics has not only failed to meet but has no intention of meeting the obligations which international law and practice impose on members of the family of nations. It is clear that this disregard for law, custom, and the opinion of mankind constitutes a further obstacle to the establishment of harmonious relations among nations and cannot be reconciled with the Soviet Government's continued protestations of its devotion to the cause of peace. It is clearly impossible to resolve this issue so long as the Soviet Government refuses to base its position upon the facts of the case. The Soviet Government must, however, bear the responsibility both for the action of its Air Force and for the manner with which it has dealt with this incident. The Government of the United States must warn the Government of the [Union of] Soviet Socialist Republics of the seriousness with which it regards the attitude of the Government of the Union of Soviet Socialist Republics in matters of such grave consequence. October 7, 1952 Incident (Habomai Islands) 17. APPLICATION BY THE UNITED STATES TO THE INTERNATIONAL COURT OF JUSTICE, MAY 26, 1955 1 SIR: 1 1. This is a written application, in accordance with the Statute2 and Rules of the Court, submitted by the Government of the United States of America instituting proceedings against the Government of the Union of Soviet Socialist Republics on account of certain willful acts committed by fighter aircraft of the Soviet Government against a United States Air Force B-29 aircraft and its crew off Hokkaido, Japan, on October 7, 1952. The subject of the dispute and a succinct statement of the facts and grounds upon which the claim of the Government of the United States of America is based are adequately set forth in a note delivered to the Soviet Government on September 25, 1954. A copy of the note is attached to this application as an annex. The Soviet Govern 3 1 Department of State Bulletin, July 11, 1955, pp. 65-67. See also the State Department's announcement of June 7, 1955 (ibid., p. 65); U.S. notes of Oct. 17, 1952 (ibid., Oct. 27, 1952, p. 650) and Dec. 16, 1952 (ibid., Jan. 5, 1953, p. 11); and Soviet notes of Oct. 12, 1952 (ibid., Oct. 27, 1952, pp. 649-650) and Nov. 24, 1952 (ibid., Jan. 5, 1953, pp. 11-12). In a communication of Aug. 26, 1955, to the Court, the Soviet Government refused to accept the Court's jurisdiction. On Mar. 15, 1956, the Court announced that the U.S. application had been removed from its docket. See statement of Mar. 16, 1956, by the Department of State (ibid., Mar. 26, 1956, pp. 513-514). 2 A Decade of American Foreign Policy, pp. 140-155. 3 Department of State Bulletin, Oct. 18, 1954, pp. 579–586. Not reprinted here. ment has asserted its contentions of fact and law with reference to the United States Government's claim in other diplomatic correspondence on this subject, most recently in a note dated December 30, 1954, a copy of which is also attached to this application as an annex.i 2. The United States Government notes that the present dispute concerns matters of the character specified in Article 36 (2) of the Statute of the Court, including subdivisions (a) through (d). As will be seen from the annexes,' the legal dispute of the United States Government with the Soviet Government involves serious questions of international law. Among them are the validity of the Soviet Government's claim to sovereignty over the Habomai Islands situated off Hokkaido, Japan, and in that connection the interpretation of the Treaty of Peace with Japan signed at San Francisco on September 8, 1951. In addition there are involved the scope and application of international obligations relating to the overflight of intruding and intercepting military aircraft, together with numerous issues of fact which if resolved in favor of the United States Government would constitute breaches of international obligation by the Soviet Government; and the nature and extent of reparations to be made by the Soviet Government to the United States Government for all these breaches. The United States Government, in filing this application with the Court, submits to the Court's jurisdiction for the purposes of this case. The Soviet Government appears not to have filed any declaration with the Court thus far, although it was invited to do so by the United States Government in the note annexed hereto. The Soviet Government is, however, qualified to submit to the jurisdiction of the Court in this matter and may upon notification of this application by the Registrar, in accordance with the Rules of the Court, take the necessary steps to enable the Court's jurisdiction over both parties to the dispute to be confirmed. The United States Government thus founds the jurisdiction of this Court on the foregoing considerations and on Article 36 (1) of the Statute. 3. The claim of the Government of the United States of America is briefly that the Government of the Union of Soviet Socialist Republics on October 7, 1952 willfully and unlawfully caused fighter aircraft to overfly the territory of Japan, to hover over and pace a United States Air Force B-29 aircraft lawfully flying over Japan, the Soviet aircraft doing so unbeknown to the crew of the United States Air Force B-29, and without any provocation to attack and destroy the United States Air Force B-29, causing it to crash into the sea at a point between Yuri Island and Akiyuri Island in territory rightfully belonging to Japan; that the crew of eight, all members of the United States Air Force and nationals of the United States, have failed to return; and that the Soviet Government has concealed from the 1 Not reprinted here. Not reprinted here. 1 Supra, pp. 425–440. United States Government information as to the fate of the crew and has not made provision for the prompt return of any crew members whom it may still be holding or of whose whereabouts it is informed. The damages suffered by the United States Government and for which the Soviet Government is liable to it are specified in the annexed note. The United States Government claims that in the circumstances described in the annex the actions chargeable to the Soviet Government constituted serious violations of international obligation for which the United States Government has demanded and demands monetary and other reparation. In diplomatic correspondence with reference to this matter, including the Soviet Government's note a copy of which is attached hereto as an annex, constituting negotiations which must now be determined to have been exhausted, the Soviet Government has asserted a version of the facts and of the law contrary to that asserted by the United States Government. A dispute is therefore presented appropriate for hearing and decision by this Court in accordance with the Statute and Rules. The United States Government, in further pleadings herein, will more fully set forth the issues of fact and the issues of law in this dispute. It will request that the Court find that the Soviet Government is liable to the United States Government for the damages caused; that the Court award damages in favor of the United States Government against the Soviet Government in the sum of $1,620,295.01 with interest and such other reparation and redress as the Court may deem to be fit and proper; and that the Court make all other necessary orders and awards, including an award of costs, to effectuate its determinations. 4. The undersigned has been appointed by the Government of the United States of America as its agent for the purpose of this application and all proceedings thereon. Very truly yours, THE REGISTRAR OF THE INTERNATIONAL COURT OF JUSTICE, The Hague, Netherlands. HERMAN PHLEGER of the Department of State March 15, 1953 Incident (Kamchatka Peninsula) 18. NOTE FROM THE AMERICAN EMBASSY AT MOSCOW TO THE SOVIET FOREIGN MINISTRY, MARCH 18, 1953 1 1 The Embassy of the United States of America presents its compliments to the Ministry of Foreign Affairs of the Union of Soviet Socialist Republics and has the honor to bring the following matter to the attention of the Ministry. On March 15, 1953, a United States Air Force plane of the RB-50 type was attacked by Soviet fighter aircraft over the open seas at Latitude 54:02 North and Longitude 161:04 East. After one of the Soviet planes of the MIG type opened fire on the RB-50 the latter was forced to return the fire. It is reported that no damage occurred to the American plane, and none was observed with regard to the Soviet plane. The Embassy has been instructed to protest vigorously this action on the part of the Soviet aircraft. The United States Government expects to be informed at an early date concerning the disciplinary action taken with regard to the Soviet personnel responsible and also concerning the measures adopted to prevent a recurrence of incidents of this kind. July 29, 1953 Incident (Cape Povorotny) 2 19. NOTE FROM THE AMERICAN EMBASSY AT MOSCOW TO THE SOVIET FOREIGN MINISTRY, OCTOBER 9, 1954 The Government of the United States of America refers again to the destruction on July 29, 1953 by Soviet military aircraft of a United States Air Force B-50 type aircraft off Cape Povorotny in the international air space over the Sea of Japan. On January 26, 1954, following an intensive investigation and study of the incident, the United States Government delivered to the Government of the Union of Soviet Socialist Republics a note requesting certain detailed information with respect to the incident and with respect to the various allegations made by the Soviet Government in prior notes of July 30, 1953, August 4, 1953 and August 26, 1953. The Soviet Govern 5 Department of State Bulletin, Apr. 20, 1953, p. 577. See also Soviet note of Mar. 22, 1953; ibid., pp. 577–578. 4 Ibid., Dec. 6, 1954, pp. 858-862. Ibid., Mar. 15, 1954, pp. 409-410. Ibid. • Not printed. 1 ment having failed to reply to the United States Government's note of January 26, 1954, the United States Government, through its Embassy at Moscow, transmitted another note on May 25, 1954 to the Soviet Ministry of Foreign Affairs inquiring when a reply might be expected to the note of January 26, 1954. The Soviet Government has made no reply or acknowledgement whatever to either note, although far more than sufficient time has elapsed to enable the Soviet Government to make a reply or to state its intentions with respect to such reply. The United States Government must conclude, therefore, that the Soviet Government is fully aware that it is not in a position to make a responsive or adequate reply to the United States Government's note of January 26, 1954. This circumstance, the United States Government concludes, reinforces and confirms the essential accuracy of the findings of fact resulting from the United States Government's own investigation and study, as well as of the statements made in the various communications of the United States Government to the Soviet Government on this subject, particularly the United States Government's note of August 4, 1953.2 The United States Government therefore takes this opportunity to place solemnly upon the record the facts relevant to the Soviet Government's liability and to prefer against the Soviet Government a formal international diplomatic claim for damages as set forth below. I The United States Government is prepared to prove by evidence in an appropriate forum, and it charges, the following: 1. Early in the morning of July 29, 1953 a four-engine aircraft of the United States Air Force, of the B-50 type, was duly dispatched from its base in Japan by United States Air Force authorities to perform a routine navigational mission in the air space over the international waters of the Sea of Japan, returning to base in Japan upon completion of the mission. The officers and crew were instructed prior to departure that under no circumstances was the aircraft to fly closer to the Soviet-held land mass than twelve nautical miles. Upon its departure the B-50 type aircraft had on board a crew of seventeen persons, all members of the United States Air Force and all nationals of the United States. They were, as the Soviet Government was informed in the United States Government's note of August 4, 1953, the following: Stanley Keith O'Kelley-Captain-Serial No. AO 776002 1 Not printed. 2 Department of State Bulletin, Aug. 17, 1953, pp. 206-207. |