AERIAL INCIDENT OF 7 NOVEMBER 19~4
(UNITED STATES OAMERICA a.UNION OF
SOVIET SOCIALIST REPUBLICS)
INCIDENT AÉRIEN DU 7 NOVEMBRE 1914
(GTATS-UNID'AMÉRIQUE c. UNEONDES
R~?PUBLTQZTESOCIA1,ISTES SOVI$TIQUES) This voIume should be quoted as:
"I.C.J.Pleadings, AerialIncidant of7 November1954
(UrzitedStalesof America Y. Union ofSoviet Socialist RepzlbZicsJ"
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1sVC,eilt volume doit ktre ciik comme suit :
((C.1.J. Mémoires ,nciden at riedzl7 novembre 1954
(Éiats-unis d"Arnt+iq.uc. Union der Ré+ubligzlessocz'alzstes
so~iiLlaq%.kr.es)
Sales number
NO de vente : PART I
APPLICATION INSTITUTING
PROCEEDINGS AND PLEADINGS
SECTION A.-APPLICATION INSTITUTING PROCEEDINGS
I
1 PREMIÈRE PARTE
1
!!
REQUÊTE INTRODUCTIVE D'INSTANCE
11
1I ET MEMOIRES
i SECTION A. - RF,QU~?TEINTRODUCTIVE D'INSTANCE
l APPLICATION
INSTITUTING PROCEEDINGS '
THE AGENT OF THE GOVERNMENT OF THE UNITED
STATES OF AMERICA TO THE REGISTRAR OF THE
INTERNATIONAL COURT OF JUSTICE
Sir:
r. This isa written application, in accordance with the Statute
and Kdes of theCourt,çubmitted by the Government of theUnited
States ofAmerica Instituting proceedingsagainst the Gevernment
of the Union of Soviet Socialist Republics on account of certain
wilful actscommitted by fighter aircraft ofthe Union of Soviet
Socialist Republics. These fighters attacked and destroyed a United
States AirForce 13-29 airplaneengagea in legitimate and peaceable
flightin the areaof the Japanese 'Island of Hokkaido and caused
thereby the death of one crew mernher of the 3-29, an Arnerican
national,and injury tothe rernaining rnernberof the B-29 aircraft,
dl Arnerican nationds. Ths incident occurred on November 7, 1354.
The subject of the dispute and a succinct statement of the facts
and grounds upon which the clairn of the Governmentofthe United
States of Arnericaiç based are adequately set forth in anote de-
livered to the SovietGovernment on May 23, 1957 . copy of the
note is attached to this application as an annex.
The SovietGovernment has asserted various contentionsof fact
and law with reference to the United States Government's clairn
in otker diplomatic correspondence on this subj ect, including nates
attached as annexes to this applicationamely the notes of Novem-
ber 7, 1954 and December rr, 1954, a note of August ~g,1957, in
reply to the United States Government's note ofMay23, 1357, and
a note of March4, 1959,in reply to the United States Government's
note of 'June19, 2958,copies of which are also attached hereto as
annexes.
2. The United States Goverment observes that the dispute
between the United States Government and the Soviet Government
as set forth in the foregoing diplomatic correspondence concerns
matters ofthe nature specified in Artic36 (2)of theStatute of the
Court, including subdivisions (a) through(d).As wiii be seen from
1See PartIV, CorrespondenNo. 1,p. 38.9 APPLICATION INSTITUTING PROCEEDINGS (8VI 59)
the annexes, the legal dispute of the United States Government
with the Soviet Government involves serious questions of inter-
national law. Some of these questions were also involved to some
extent in the case of the Aerial Incident of October 7, 1952, which
was described in the application filed with this Coud on June 2,
1955. These inclüde the legality in international law of the Soviet
daims to land, waters and air space in the area of the Habomai
Islands and Shikotan, and to Kunashiri and Etorofu, and their
territorial waters and air space.
The incident of November 7, 1954 thus represents an aggravation
of the conduct complained of by the United States in its earlies
application against the Soviet Govemrnent. In addition there are
involved the apparent Soviet claims to treat as hostile peaceable
aircraft of the United States over international waters and in the
air çpace in the Goyomai Strait and leading thereto, as we31as dl
Soviet claims of sovereignty in this area. In that connection, there
is involved the interpsetation of the Treaty of Peace with Japan
signed by the United States and other governments in San Francisco
on September 8, 1951. There are also involved the scope and
application of international obligations relating to the interception
by military aircraft, together with other issues of fact which if
resolved in favor of the United States Government would demon-
strate breaches of international obligation by the Soviet Govern-
ment; and the naturc and extent of repatations to be made by the
Soviet Government to the United States Governrnent for al1 these
bseaches.
The United States Gavernment, Ming this application with the
Court, has çubmitted to the Court's jurisdiction for the pusposes
of this caçe. The Soviet Government appears not to have filed any
declaration with the Court thus far. It was invited to do sa by the
United States Government as to the present dispute in the note
of June 19, 1958. The Soviet Government has sent a negative reply
thereto. The Soviet Government is, however, qualifred to subrnit
to the Court in this matter and may, vpon notification of this
application by the Registrar, in accordance with the Rules of the
Court, take the necessary steps to enable the Court's juriçdictinn
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 ofthe Governrnent of the United States of America
isbriefly that the Government of the Union of Soviet SocialistIO APPLICATION INSTITUTINE PAOCBEDlNGS (8VI 59)
Republics on Novernber 7, 1954 caused fighter aircraft of its Air
Force to overfiyinternational airspace and the tenitorid airspace
of Japan in the area of Hokkaido to intercept, attackand destroy
a United States Air Force 3-29 airplane engaged in legitimate and
peacefd Aigkt within Japan andthe international air space adaeent
thereto.
The United States Air Force, prior to and on Novernber 7,
1954~ had been duly authorized, by virtue of the Security Treaty
between the United States and Japan, signed September 8, 1951,
to conduct Aights by rnilitary aircraft over Japanese territory.
Pursuant to this authority, on the rnorning of Novernber 7, 1954,
a United States Air Force B-29, bearing serialnumber 42-94000,
and with the identificationcd sign "AF-470$"' waç duly dis-
patched with instructions to fly in specified areas evclusively
within the territorid confines of the Island of Hokkaido and the
adjacent international air space. The aircraft 's crew were eleven
men, allrnembers of the United States Air Force and nationalç
of the United States. The B-zg had flown dong the çoutheast
end of Hokkaido and had reached a point south of the town of
Nemuro. The pilot then made a tum with the purpose of flying
back along a paralle1 of latitude approximately 43 degrees, 18
minutes north, running through the Island of Tomoshiri in the
east and through the town of Shibecha in Hokkaido in the west.
The B-zg executed a left turn over the international waterç of
the Pacific toward a heading of approximately 360 degrees due
north, soiithwest of the tip of Nemuro Peninsula. Two fighter
type aircraft of the Soviet Government moved in on the B-zg
andwhile the B-29 was flyingdue weçt on a heading of 270 degrees
in the Japanese territorial air çpace, the two Soviet fighters opened
Eire with successive bursts without any wârning of an intention
to fire and without any provocation by the B-zg justifying or
reasonably calling for such hostile action. The firing of the Soviet
fighterscontinued, directed to the destruction of the R-zg,to the
point where it had passed completelp over the land mass of
Hokkaido, so that the csew were forced to abandon the aircraft
by parachute, The airplane crashed on Japanese soi1 near the
viliage of Karniçhunbetçu in Hokkaido and one crew member
who had parachuted was serioudy injured and died. Damage wu
also caused to the house of a Japanese national and to cultivated
fields and crops of another Japanese national.
The facts are more fully set forth in the United States Govern-
ment note of May z3, 1957. The damages suffered by the United
States Governrnent, for which the Soviet Government is Iiable,
are specified in the annexed note of June 19,2358 as welt. The
United States Govemrnent claims that in the circumscmceç
described in the annex the actions chargeable to the Soviet Gov-
ernrnent constituted serious violationsof international obligationfor which the United States Government has demanded and
demands monetary and other reparation.
In diplornatic correspondence with reference to this matter,
including that which is attached hereto, the Soviet Government
has asserted a version of the facts and of the law contrary to
that asserted by the United States Government. The United States
Government believes that in the circumstances recited the diplo-
matic channel of negotiations must be determined to have been
exhausted. A dispute is therefore presented appropriate for heanng
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. Itill 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
amount of $756,604.09, and such other reparation and redress as
the Court may deem fitand proper; and that the Court make al1
other necessary awards and orders, 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 purposes of
this application and al1 proceedings thereon.
Very truly yours,
(Szgned)Loftus E. BECKER,
The Agent for the Government
of the United States of America.12 LIST OF ANNEXES TO APPLICATION
Annexes
I. Note from the United States Government to the Soviet
Government of November 7, 1954.
z. Note from the Soviet Government to thUnited StatesGovern-
ment of Novernber 7,1954.
3. Note from the United States Government to the Soviet
Government ofNovember 17, 1954.
4. Note from the SovieGovernment tothe United StatesGovern-
ment of December II,1954.
5. Note from the United States Government to the Soviet
Government of May 23, 1957.
6. Note from the Soviet Governrnent to the United States
Governent of August rg, 1957.
7. Note from the United States Government to the Soviet
Government of June 19,1958.
8. Note from the Soviet Government to the United States
Government of March 4, 1959. ANNEXES TO APPLICATION (NOS. 1-2) 13
Annex r
NOTE FROM THE UNITED STATES GOVERNMENT TO THE
SOVIET GOVERNMENT OF NOVEMBER 7, 1954
No. 205.
The United States Government bas been informed that a United
States B-zg type airçtaft was shot down over Japanese territory
in the Hokkaido area on Novernber 7 by two Soviet MIG-type
airçraft.
The United States Government strongly protests this action.
It dl expect the Soviet Government tû make dl such moral and
material reparations as lieswithin its power.
The United StatesGovernment wilI comrnunicate further with
the Soviet Governrnent when the facts regarding hurnan and
materid losses are more fully known.
NOTE FKOMTHE SOVIET GOVERNMENTTO THE UNITED
STATES GOVERNMENT OF NOVEMBEK 7, 1954
No. g3losa.
The Government of the Union of Soviet Socialist Republics
considers it necessal-yto state thefollowing ta the Government
of the United States of America.
In accordance with established façts on Novernbes 7 this year
at 1320 hours local time (rzqr:houtç Vladivostok tirne) a four-
motored rnilitary airplane of thB-zg type with identifying marks
of the ditary air forces of theUSA violated the state boundary
of the Soviet Union in the region ofthe island of Tanfilev(Kuri1e
Islands) and continued to penetrate inta the air space of the
USSR in the direction of this içland.
At the time of itsflight over the island TanfiIev the American
sirplane was met by two Soviet fighters with the purpose of
indicating to it that it was within the limits of the boundaries
of the USSR and of proposing that itimmediately leave the air
space of the Soviet Union. Upon the approach of the Soviet
fighters the mentioned American airplane opened fire on them.
In connection with this unprovoked action by the American
violating aiviane the Soviet airplanes were iorced to upenI4 ANNEXES TO APPLICATION (NO.3)
answering fire, after which the American airpIane left the air
space of the Soviet Union in a southwesterly direction.
The Soviet Government decisively protests to the Governrnent
of the USA this groçs violation by an Arnerican military airplane
of the Soviet boundary.
This is a new instance of the violationby American military
airplanes of thestate boundav of the Soviet Union. The Soviet
Governnient has brought the attention of the Government of the
USA to simiiar instancesoi violation, in particular in its notes of
Septernber 5 and 8 of this year.
The Soviet Government notes with regret that instances of
violation of the Soviet boundary by Arnerican military airplanes
which occurred earlier involved in no way juçtified losses as was
indicated in relevantnotes ofthe Government of the USA.
The Soviet Government considers that the taking of rneasures
for the prevention in the future of violations by American air-
planes of the Soviet state boundary would be in the interestç both
of the Soviet Union and of the United States of America and
expects that to this end appropriate instructions will be given
by the Government of the USA to the comrnand of the American
military air forces.
Annex 3
NOTE FROM THE UNITED STATES GOVERNMENT TO
THE SOVIET GOVERNMENT OF NOVEMBEK 17, 1954
No. 390.
The United States Government refers to its note of Navember 7
to the Soviet Government concerning the shooting downof aUnited
States B-29 type aiscraft in the Hokkaido area of Japan by two
Soviet MIG type arrcrafton November 7 (local time) and to the
Soviet Government's note of the same date on this subject.
The United States Government rejectç as unfounded the account
of the incident contained in the Soviet noteof November y. The
attack was initiateby Soviet aircrltft without warning and wjthaut
any atternpt to signal the pilot of the American aircraft. The
United States aircraft did not any time fire on the Soviet aircraft.
As aresultof the unwarranted and hostileact ofthe Sovietaircraft,
the United States aircrafwas destroyed, craçhing near the village
of Nokkegun on Hokkaido.
The United StatesGovernment again protests this latest incident
in along series of unprovoked Soviet attaçkç on American aircraft
on peacefd missions. In this connection, the UniteStatesGovern-
ment would observe that the Soviet Government has not yet replied
to the United States Government's note of September 25, 1954, ANNEXES TO APPLICATION (NO. 4) I5
regarding the destruction of another AmeBcan B-zg aircraft in
approximately the same area and under the same circumstances.
That note also reiterated that the United States Governrnent sup-
potts the Japaneçe Govemment's contention that the Habomai
group isan integral part of the national territory of Japan. The
United States Government further shares the deep concern of the
'Japanese Government t hat the Soviet Governmen t not only con-
tinues iilegally to occupy Sapanese territo nythe Habomai Islands
but also ~arries out unprovoked attacks on United States aircraft
lawfully in this regon.
The United States Government requests that appropriate dis-
ciplinary rneasures be taken with regard to those responsible for
this unprovoked attack and that dl other possible çtepsbe taken tci
prevent the recurrence ofsuch incidents which are in flagrant con-
tradiction of recent statements by high Soviet officials that the
Soviet Union seeks to abate international tensions. Such action by
the Soviets would be in the mutual interest of theGovernments of
the USSR and the USA. In the absence of appropriate action by the
Government of the USSR the United States Government wdi be
impelled O provide the necessary defençive protection for United
States aircraftengaging in these legitimate and peaceful missions
and full responsibility for any conçequences which ensue will devolve
upon the Government of the USSK,
The Soviet Government is also informed that the United States
Governrnent reasserts and reserves its rights with referenceto the
hurnan and materid lasses incurred as a result of the Soviet action
of November 7.
Annex 4
NOTE FROM THE SOVIET GOVERNMENT TO THE UNITED
STATES GOVERNMENT OF DECEMBEK II, 1954
In connection with the note of the Government of the United
States of Ametica No. 390 of November 17of this year the Soviet
Government considers it necessary tostate thefollowing :
The note of the Soviet Government of Novernber 7 contained
estahlished factç, accordingto whiçh on November 7 this yeâr at
1320 local tirne(1241 Vladivostok time) an American four-motored
rnrlitaryairplane of the B-zg type violated the state boundary of
the USSR in the repon of the islandofTanfilev (Kurile Islands)and
continued to penetrate into the air çpace of the Soviet Union in
the direction of this isiand.At the time. of the fligkt over the in-
dicated island the violating airplanewas met by two Soviet fighter
planes with the purposeof painting out that iwas inside the bound-
aries of the USSR, and to propose that it immediately leave the
air space ofthe Soviet Union. However, the American plane upon16 ANNEXES TO APPLICATION (NO. 4)
the approach O£ the Soviet fighters opened fire on them. In con-
nection with this unprovoked action of the American airplane, the
Soviet airplanes were forced to open answering fire. The American
violating airplane left the air space of USSI2 only after this and
departed in a soutkwesterly direction.
The façts set forth above accurately established by appropriate
verification refute assertions çontained in the reference notofthe
Government of the United States of America, to the effect that the
airplane of the United States was shot down on November 7 by
Soviet airplanes over Japaneçe territoryin the region of the Island
of Hokkaido and to the effect that the attack was begun by Soviet
airplaries.
From the note of the Governmeilt of the USA it follows that it
does not dispute the façt that the Aight of the American airplane
of the 33-29type toolr place dong the course indicated in the note
of the Soviet Government of November 7 and that the encounter
of the American airplane with the Soviet airplanes took place over
the içland of Tanfilev (Kurile Islands).
The Government of the USA deges, however, that the Arnerican
airplane did not open iîre01-the Soviet airplaneç. Nevertheless, the
fact that at the approach of the Soviet fighters the American air-
plane opened fire has been establiçhed by trustworthy means, in-
duding appropriate apparatus.
In this connection it is appropriate to cal1 to mind that in the
note of the Govesnrnent of the USA of Septernber 6 of this year
regarding an Ainerican mililary airplane of the Neptune type,
which had violated the state boiindary cifthe USSR in the region
of Cape Ostr~vnoi on September 4 of thisyear, the assertion was
also made that the American rnilitary airplane did not open fire
at al1on the Soviet fighters. However, later the Navy Department
of the USA, and also the Amencan representative in the UN in his
speech in the Security Council on September IO, rg54, admitted
that the American airplane açtually did fire on the Çoviet airplanes.
As regards the allegation of the Govrrnment of the USA to the
effectthat certain southern Kurile içlands, in the region of which
incidents with American airplaneç took place, are not Soviet terri-
tory, this staternentis without foundation and is in plain contra-
diction with provision.ofthe Yalta agreement on theKurile Islands,
in whch the USA also is a participant. As isPrnown, the Soviet
Union on the baçiçof agreements between the Allies concerning the
surrender of 'Japan accepted capitulation of the Japanese forces
011the territory ofal1the Kurile Islands, which by decision of the
Yalta conference were transferred to the Soviet Union. IR accord-
ance with the agreement rnentioned above and in the directive
of the staff of the Çupreme Commander of the Allied Powers,
MacArthur, of January z9, 1946,it is d~rectly pointed out thar theçe
islands are exduded from the sovereignty of Japan along with
other territories which were witlzdrawn from Japan.1
ANNEXES TO APPIJCATION (NO. 5) I7
I In view of the foregoing, the Soviet Government states tliat the
I protest of the Government of the USA does riot have basis.
The Soviet Government in its note of November 7 has already
expressed its regret witk reference to the fact that instances of
violations by Arnerican military airplanes othe state boundary of
the USSR which have takenplace, including the instance which
occurred on Novernber 7, involve, as indicated in correspoi~ding
notes of the Government of the USA, losses and casualties which are
in no way juçtified. In stating ths, the Soviet Government proceeds
oiz the aççumption that henceforth lneasures will be talren on the
part of theUSA excluding repetitions of sirnilar instances.
The taking of rneasures to prevent henceforth violations by
Arnerican airplanes of the Soviet state boundary would permit
similar incidents and losses connected with tllern to be avoided.
However, it cannot but be observed that the statement of the
Governrnent of the USA that in the future it will "insure neçessary
defense" of airplanes of the US can in 110 way contribute to tkis.
Such actions of the American military cornnland could only increase
the risk ofrepetition of similar Incidents]lottomention that these
actions would be contrary tothe interestsof lessening international
tension. The Soviet Governrnent confirms its note of November 7
of thiyear and expects that the Governrnent of the USA will give
appropriate instructions to the cornrnand of military airforces of
the USA to take neçessary rneasures to preveilt in the future viola-
tions by American airplailes of the state boundary of the Soviet
Union.
NOTE FROM THE UNITED STATES GOVERNMENT TO
THE SOVIET GOVERNMENT OF MAY 23, 1957
Ihave the honor to transmit to you herewith, upon the instruc-
tion of nly Government, the foiiowing comrnui~ication from my
Government to your Goverilnzent :
The Goverilment of the United States of Arnerica refers againto
the incident of November 7, 1954 n which fightcr aircraft ofthe
Governrnent of the Union of Sovlet Socialist Republics attacked
and destroyed a United States Air Force R-29airplane engaged in
legitiinateand peaceabie flight in the area of the Japanese Island of
Hokkaido. In its most recent note on this matter to the Soviet
Government , of Noverriber r7, 1954 h" United States Governrnent
inforrned the Soviet Government, inter dia,that it reserved its
rights with reference tothe human and niaterial loçseç incurred as
a result of the Soviet action of Novernber 7, 1954. It also stated18 ANNEXES TO APPLICATION (NO. 5)
that in the absence of action by the Soviet Government to prevent
a recurrence of such attacks, the United States Government would
be compelled to provide the necessary defensive protection for
United States aircraft engaged in these legitimate and peaceful
missions. The Soviet Government replied to this note OR December
II, 1954. It asserted that its allegations of fact, which are contrary
to the allegations of fact made by the United States Government,
had been "established and checked". It also placed upon the United
Stat. Government the blame not only for this incident but for the
risk of any other loss of life or property which might be occasioned
by Soviet fighters should the United States provide defensive pro-
tection to its aircraft inimilar circumstances in the future.
The incident of November 7, 1954 was not the first in which
innocent and peaceable American aircraft had been attacked by .
Soviet fighters without provocation. The United States Govern-
ment, therefore, having in mind the seriousness of the implications
to international peace raised by this further incident, then in-
stituted, with the active assistance and cooperation of Japanese
authorities, a thorough reinvestigation and review of the entire
incident of November 7, 1954. The reinvestigation and review
confirm that the material assertions of fact in the United States
Government's notes to the Soviet Government of November 7,
1954 and November 17, 1954 are correct; that the material
assertions of fact by the Soviet Government in its notes of
November 7, 1954 and December II, 1954 are untrue; and that
the Soviet Government is liable to make proper compensation to
the United States Government for the injuries caused and to
make such other amends as will deter it from any repetition of
its wrongful conduct.
The purpose of the present communication is to place upon the
record al1 the relevant facts and, based thereon, to prefer against
the Soviet Government a forma1 international claim as set forth
below. The United States Government still, as it has done with
respect to similar prior incidents and in accordance with the policy
announced by it in the Security Council of the United Nations
on September IO, 1954, calls upon the Soviet Govemment to
desist from acts of international violence, to respect international
law and to foilow the practices of international law for the peaceful
settlement of international disputes.
The United States Government asserts, and is prepared to prove
by evidence in an appropnate forum, the following:
I. Prior to and on November 7, 1954, the United States Air
Force was duly authonzed, by virtue of the Security Treaty
between the United States and Japan, signed September 8, 1951,
to conduct flights by military aircraft over Japanese territory. ANNEXES TO APPLICATION (ND. 5) I9
Pursuant to this authority,on the morning of Novernber 7, 1954,
a United States Air Force B-zg, bearing serial number 42-94000,
and with the identification cal1 sign "AF-4705"~wu duly dis-
patched with instructions to flyin specified areas exclusively
within the territonal confines of the Island of Hokkaido and the
adjacent international air space. The airplane was manned by a
crew of eleven, dl rnernbers of the United States Air Force and
nationals of the United States, and each of them competent to
perform the functions assigned to him with respect to the mission.
The R-zt) proceeded in due course to the Island of Hokkaido.
Cornrnencing at approximately 1123hours, the B-29 flew due east,
at an altitude of approximately 16,ooo feet, along a Rjght line
running Eromapproximately r# degrees 20 minutes east longitude
approximately dong the parallel of latitude of 43 degrees and
15 minutes north, ending off the coastline between the villages
of Konbumon and Nagafushi, çouth of the tawn of Nemuro and
of the island of Tomoshiri, north of the island of Moyururi and
west of Tatsumino Reef. The heading of the aircraft in this
operation was go degrees and the operation was accomplished at
approximately I139 hours.
Thereupon the pilot turned right to a heading of r80 degrees,
then fvrther right to a headlng of 240 degrees.The instructions
of the R-29 crew, given to them prierto their departure, required
thern to flyin the area of the Nemuro Peninsula along a parallel
of latitudeof approximately 43 degrees,18 minutes north, running
through the island of Tomoshiri in the east and through the town
of Shibecha in Hokkaido in the weçt, extending no flirtker east
than 145 degrees, 45 minutes eastlongtude. Noticing the favorable
weather conditions therefor, the Aircraft Commander determilied
to fly from east to west on an adjacent line running from approxi-
rnately 145 degrees 40 minutes east longitude approximately along
the parallel of latitudof 43 degrees 18 minutes north, and there-
fore then executed a turn to the left over the international waters
of the Pacific Ocean toward a heading of approximately 360 degrees
due no~th. While flying on thedue north heading, south of Tatsu-
mino Reef and southwest of the tip of Nemuro Peninçula, crew
rnembers of the B-29 noticed to the eastof the course of the B-zg
two fighter-type aitcraftflying toward the B-zg from its right
rear. The fighters were not immediately visible to the Aircraft
Commander or other officers in their positions in the noçe of the
B-zg, but upon the presence of the fighter âircraftbeing called
to their attention by the crew memberç the officerin the nose
of the B-zg succeeded in perceiving them at a distance which
appeared to be approximately eight to ten miles away to the
east rnoving in toward the R-zg on a relative bearing of approxi-
rnately r45 degrees €rom the B-zg. Immediately on sighting these
fighters, and concluding £rom their silhouettes that they were
probably of the MTG type, the Aircraft Commandes caused the 20 ANNEXES TO APPLICATIOiU' (NO. 5)
B-29 to tvrn left,by a 90 degree turn, to a heading of 270 degrees,
intending thereby to avoid any possible ericounter with the Soviet
aircra£t and, by flying farther inward and toward the Sapanese
land rnass, to emphasize the peaceable purpose and legitrmate
Aight of the 13-29T.he position of the B-zg's was lust south
of Latsumino Reef and two to three miles west of the tip of Nernuro
Yeninsula. As the B-zg was rolling out of its qo degree turn and
comrnencing a Ievel Aight due west on a headlng of 270 clegrees,
the tw.oMIG fighter aircraft closed inon the B-ag from the rear
and opened fire with successive bursts in ail attack deliberately
deçigned tu destroy the B-29 and its ctew. The B-zq was hit on
the tail and left wing and aileron. At the moment of the attack
the B-29 was passing from the international air space over the
waters of the Pacific Ocean, and was entering the territorial air
space of Holtkaido, and the tirnewas approximately 1148 hours.
No warning whatever had been given in any way l>y the MIG
fighter aircrafto the B-zg of intention to fire, nor had aily provo-
cation been given by the B-29 justifying or reasonably calling for
such hostile action.
The Aircraft Commander, continuii-igonthe same westerly head-
ing of270 degrees,promptly caminenced a desceilt in an attempt to
evaclefurther attark from the Soviet fighter aircraft and to reach
the Hokltaido land mass. But the attacking Soviet fighter aircraft
cloçedin from the rear in a hostile firing attitude and opened fire on
the B-zg asit descended and flew westward. Fucl whiçh hacl been
pouring out of the Ieft fuel tank was set afire. TheB-eg was, as a
result of the further daniage inflicted by the Soviet fighter aircraft,
becomlng difficultto controI and its pilotwas unable to make any
further evasive maneuvers. At the tiine of this second attack the
position of the B-zg was over Japanese territorial waters eaçt of
Muyururi Island. Nevertheless, at least one of the Sovret fighters -
again proçeeded to the rear of the B-29, again closed ii~and again
opened fire in Japanese territorial air space as tB-zg was reachii-ig
Moyururi Island and agaiil hit the B-zg. Unrelenting, at least one
of the Soviet fighters proceeded againto the rear ofthe descending,
burning 33-29and again reçurned a firing attitude,but apparently
seeing the hopelessness of the B-zg desisted from firing.At that
point,the B-zg, affame, had reached an altitude of 11,000 feet and
was close to orover the shorelineof Moyururi Island at approxi-
nlately latitude43 degrees 13 minutes north, loi-igitude145degrees
37 minutes eaçt, The Aircraft Commander was coinpelled to elect
to abandon the airplane in the air. He gave his crew the order to
bail out, which the crew obeyed, inthe air space of Hoklcaido west
of the village of Konbumori, The crew al1 landed on the ground
safely, except Lt. sigfredoAnguIo, who was seriously injured and
died. The B-29. unmanned and unable to maintain the course set
bJ' the pilot hiore abandonment becausc of the damage dorie it
b~ the attacking sovietfighters,crashed to the ground by the village ANNEXES TO APPLICATION (NO. 5) 2 1
of Kamishunbetsu in Notsukegun, completely deinolishing the house
of a Japanese national and destroying its contents and damaging
cultivated fields and crops belonging to another Japanese national.
2. The United States Government has concluded from its inves-
tigation that the actions of the Soviet fighters during the entire
encounter, including each of the attacks, were planned, initiated,
directed and continuously controlled by responsible authorities of
the Soviet Government for the purpose of accomplishing the
destruction of theB-29 and the death of its crew; that the attacks,
which were unprovoked, took place in the territorial air space of
Japan or in the contiguous international air space with knowledge
that no provocation legally justifyingsuch action had been offered
by the B-zg ; and that no prior opportunity had been afforded to the
B-29 to avoid attack and that no warning of intention to attack had
been given to it in any way by the Soviet fighter aircraft.
The Soviet Governrnent lias, in the two notes 011this incident
above inentioned, made statements of fact with respect to the
incident which, the United States Government has concluded, are
in material respects untrue. The United States Government is
buttressed in these conclusions by the fact that the Soviet Govern-
ment has again chosen to reiterate stereotype and demonstrably
uiltrue allegations such as it has heretofore asserted concerning
each of a nurnber of unprovoked attacks by Soviet fighters on
innocent United States military aircraft. Among these false state-
ments of fact, as the United States Government is prepared to
prove by evidence in an appropriate forum, are the following:
I. That the B-29, at 1320 hours local time, or1241 hours Vladi-
vostok time, flew over the Island of -îanfilev. This staternent,
contained in both the Soviet note of November 7, 1954 and the
Soviet note of December rr, 1954,is preceded by thestatement that
the B-29 "violated the state boundary of the USSR in the region of
the Island of TanfiIevJ'and that it "continued to penetrate into
the air space of the Soviet Union in the direction of this island".
Itis assuined that the Soviet Government is referring to the Habo-
mai island of Suisho which, on November 7, 1954,and for some time
prior thereto, Soviet authorities occupied. The fact is that tB-29
flew neitherover nor near Suisho Island nor did it cross any frontier
of the Soviet Government, or any kind of frontier knocvn to be
claimed by the Soviet Government. in this area. On the contrary,
the flight of the-zg, to the time of encounter by the Soviet fighters,
was, aç recounted above, performed entirely south of the Nemuro
Peninsula, in the territorial air space of the Japanese Island of
Hokkaido, or in the contiguous air space over the high seas of the
Pacific Ocean. Assuming that the time of the alleged overflieht.2.2 ANNEXES TO APPLICATION (NO. 5)
stated in the Soviet notes as1320 hours localtime, was 1x41 houss
Japan time, the United States Guvesnment has concluded that the
position of the B-zg atthat time was approximately 145 degrees
43 minutes east and 43 degrees II minutes norih, and not less than
sixteen nautical miles frothe nearest shoreline of Suisho Yçland. The
B-zg was then on a heading of çouth over the coastline and waters
south of the town of Nemuro, southwest of the eaçt tip of Nernuro
Peninsula and southwest of Tatsumino Reef, and it was headed still
farther $rom Suisho Island and it continued to Ayas far asapproxi-
rnately twent y-five nautical miles from the neareçt shoreline of
Suisho Island prior to making Itsturn to the left from its heading
of 240 degrees as has been descnbed above.
a. That the B-zg was met by two Soviet fighters while it was in
Aight above the Island of Suisho, osTanfilev. The fact is that the
two Soviet fighters which attacked the B-zg approached it from
the rear, and never in any other attitude, ata point due south of
the Nernuro Peninsula and over the contiguous international waters
of the Pacific Ocean.
3. That the Soviet fighters met the R-zg with the intention of
pointing out to it that it was within the boundaries of the Soviet
Union and of proposing that the B-zg imrnediately leave that air
space. As has unfortunately becorne usual In this çtereotppe de-
gatian, the Soviet Government does not state precisely what
maneuvers orconduct, if any, the Soviet fighters are claimetohave
performed in conveying oratternpting to convey any such communi-
cation or in preparing to do so. The United States Government
reiterateç that in truth the appsoach of neither of the two fighter
sirçraft in this case waçcompatible with any intelligible atternpt to
convey any peaceable communication. On the contrary. the United
States Government has concluded that the fighter aircraft ap-
proached the B-zg first, and only from the rear and at a consider-
able distance tci the east, for the purpose of identifying it as a
United States aircraft and then, having rcported that fact to the
responsible Soviet ground control authorities, the fighter aircraft
were directed to proceed immediatèly, and did so proceed, from the
irnmediate rear in excIusiveJyhostileattitude to attack and destroy
the B-zg, although the B-ZQ was then passingfrom the international
air space over the waters of the Pacific Ocean irnntediatelyconti-
guous toJapanese territoryin the Island of Hokkaido and entering
the tedorial air space of Hokkaido; and they then repeatedly
again so prriceededeven while the B-29 and the fighterswere within
the territorial air space of Hokkaido. The fightersclrdnot evince,
not did they have, any intention atany time to make any peaceable
communication, or to give any warning of any kind, as to their
purpose; the approack of the two fighter aircraft was totally
incompatible with any customary or recognized attempt tri convey
any peaceable communication, ANNEXES TO APPLICATION (NO. 5) 23
4. That the B-zg, on the approach of the Soviet fighters, opened
fire against thern. This stereotype allegation is false. At no tirne, .
l even after the initial attack by the Soviet fighters, &d the B-zg,
or any mernbes of its crew, fire upon the Soviet fighter aircraft.
l
5. That the Soviet fighters were forced to open fire in reply. This
is similarly false, particularly inasmuch as the B-zg, when the
Soviet fighter aircraft first approached it, prior to firing, and frorn
then on until the disengagement, was flying c~ntinuously in a
westerly direction and farther and farthcr away frorn Soviet-held
territory, a fact which was obvious to the pilots of the Soviet air-
craft and to their ground controllers; and the attacks of the fighters
upon the B-29 were accomplished by overtaking the R-zg fram a
safe distance to the rear of the B-zg,
6. That only after the Soviet fighter aircraft firedupon the B-zg
dtd the B-zg leave the air space of the USSR and that it flew off
in a southweçterly direction. The fact is that, on the contrary, the
B-zg had taken a turn to a westerly heading even before the Soviet
fighter aircraft, coming from the rear, appr~ached dose to the
13-29in hostile attitude. The mortal injuries were inflicted by the
Soviet fighters on the B-29, in successive attacks, after thB-zg had
made its left turnand was on its flighttothe westward, first passing
from the international air space over the waters of the PaciFic
Ocean, and entering the territorial air space of Hokkaido, Japan
and then within that territorial air space. At the moment of firçt
at tack the B-zg, the United States Government has concluded, was
no closer than fifteen nautical miles in a direct line from the shore-
line of Suiçho Island; the subsequent attacks were made by the
Soviet fighter aircraft, as has been çtated above, even farther from
Soviet-held territory and within the territorial air spaçe of Hok-
kaido, Japan.
7. That the United States Government doeç not hspute that the
flight ofthe B-zg took place as stated in the Soviet Government's
note of November7, 1954 ,nd it doeç not dispute that the encounter
of the B-zg with the Soviet aircraft occvrrecl over the Island of
Tanfilev. On the contrary, the United States Goverriment definitely
disputes these allegationç, and it characterizes them as false.
I
8. That the fact that the B-zg opened fire on the approach of the
Soviet fighters hasbeen establishedbv trustworthy meanç, including
appropriate instruments. The United States Govemrnernt must
express its doubt that the Soviet Government is in position to pro-
duce any instruments or evidence of reliable character establishing
any such fact; for its own part, it isprepared to prove by inçontro-
vertible evidence that none ofthe guns of the B-zg was ever fired
during itç Aight on November 7, 1954.24 ANNEXES 'TO APPLICATION (NO. 5)
III
The United States Governrnent has çoncluded, for the reasons
set forth below, that the Soviet Government in the foregoing facts
was guilty of deliberateand willful violationof applicable rules of
international law on açcount of which it bas becorne liable to the
United States Government for damages and other amends.
I.In the circumstaizces of factdescribed above, it was unlawful
for the Soviet aircraft to have attacked the B-zg at any tirneor
place.
2. The Soviet Government omits, significantly, to state that
the Soviet fighters made four concerted firingattacks on the B-29.
It is, therefore, not clear wkether the Soviet Government prefers
to disregard any of these attacks. The United States Government
assertç that had the B-zg, contrary to the fact, drected fireon
the Soviet fighterç aiter any attack by the Soviet fighters such
attack of the fighter aircraft and the subsequent obviously hostile
approach would constitute legal justification ffirefrom the B-zg
as an act of self-defense.
3. The Soviet Government stateç in its notes of November 7,
1954 and December 11, 1954, that thetwo Soviet fighters involved
in the incident approachecl the B-zg "with the purpose of pointing
out that it was inside the boundaries of the U.S.Ç.R. and to
propose that itimmediately leave the air space of the Soviet
Ui~ion". The United States of Arnerica denies that this was the
purpoçe of the approach of the Soviet aircraft. It notes that the
B-29 bad not entered Soviet territory and was not engaging in
any activity which repreçented a clear and present danger to
the Soviet Union. The Soviet aircraft immediately upon its first
approaching tlie 13-29 opened fire rather than giving visual signals
or otherwise proposing that the B-29 alter its course. Since the
B-29, upon the appearançe. of the Soviet fighters, turned in a
westerly direction and proceeded farther away from the area
claimed to be territoryof the Soviet Governrnent, it was the duty
of the Soviet authoritieç to refrain from any action not neceçsary
for the defenseof the Soviet Union. In the facts and circumstanceç
described any fire fsom the Soviet aircraft was entireunwarranted.
The Soviet Government haç, in its notes on this incident,
adverted ta its territorial clairnto the Habomai Islands and to
adjacent water and air space. It has,by implication, saised question
as to the extent of such ciaims. Although as iç well known the
United States Government challenges the Soviet Government's
territorial clairns to these islands, it hanot çhosen to do so by
any overAights of any disputed area, and specifically not in cir-cumstances such as those involved in the incident of Navember 7,
1954~ or by any method other than the channelç of peaceful,
diplomatic negotiation and judicial deterinination. The United
States Government , therefore, takes this opportunity to make the
following declarationç :
A. With respect to the Soviet claim of sovereignty over the
Habomai Islands :
I. In its note of Novernber 17, rg54, the United States Gov-
ernrnent stated that the United States supports the Japanese
Government's contention that the Habornai group of islands is an
integral part of the national territory of Japan which the Soviet
Government continues illegally to occupy. The Soviet Govern-
ment's note of Decernber Ir, ~954, cornrnenting on thisstatement,
says this is "in plain contradiction to the provisions of the Yalta
Agreement on the Kurile Islands". The United States Government ,
rnaking tefererice for a fuller staternent of its position In this
regard to the note of September 25, 1954 w,hich is incorporatecl
in the records of the International Court of justice as an annex
to the United States Governrnent's application instituting pro-
ceedings against the Soviet Government on acçount of a similar
incident of Oçtober 7, rgjz, reiterates that the Yalta Agreement
regarcling Japan of Febniary II, 1945 was neither intended to
nor did it have the effect of conveying legal titlein any Japaneçe
territory to the Soviet Union; that in particular neitker the Yalta
Agreement regarding Japan nor the Sreaty of Peace with Japan,
signed in San Francisco on September 8, 1951, conveyed aily
title in the Habomsi Islands to the Soviet Union or diminished
the title ofJapan in those islands, and the phrase "Kurile Islarzdç"
in those documents cloes not and was not intended to inchde
the Habomai Islands, or Shikotan, or the islands of Kunaçhiri
and Etorofu which have always been part of Japan proper and
should, therefore, in justice be aclcnowledged as under Japanese
sovereignty. The action of the Soviet Government in purporting
to appropriate those islands and to exerçise sovereignty over them
is, therefore, wrongful and illegal and was wrongfu1 and illegal on
Novelnber 7, 1954. The United States Government notes again
tliat the Soviet Government has consiçtently failed and refused
to siibmit the validity ofitçcontentions in this regard to examina-
tion by established judicial proceçs in the interestof the peaceful
settleri~entof international disputes and of the maintenance of
international law and order.
2. In the note of December II, rg54, the Soviet Governinent
also cites as justification of itç daim of title to the Haboniai
Islands, whicl-i it now denorninates as "certain Southern KU&
Islands", that these islands were "exduded from the sovereignty
of Japan" by the Soviet Governmcnt's acceptance of the capitu-
lation ofsapanese forces "on the territory of al1the KurileIslancls"26 ANNEXES TO APPLICATION (NO. 5)
"on the basiç of agreements between the Allies", The United
States Government denies that any agreements between the Ahed
Powers in the war against Japan provided any justification for
the Soviet appropriation of any territory, particularlthe Habomai
Islands and Shikotan, and the islandç of Kunashiri and Etorofu,
The entry of Soviet troops on Japanese territory was authorized
only under the document known as General Order No. I, the
fitstof the general orders to the Imperial Japanese Government
l5y the Supreme Commander for the Allied Powers carrying out
tlieterms of surrender to him; it ernboched an agreement made
among the Allied Powers and was, and iç, binding upon the Soviet
Government as upon the other Allied Powers. That order provided
only for the detailed execution of the terms of military surrender
of Japanese forces. It provided that the "Kurile Islands" was
among various areas (including Manchuria, North Korea and
Karafuto) in whch Japanese armed forces should surrender to
"the Commander-in-Chief of Soviet Forces in the Far East".
Other Ahed cornmanders were designated to accept çurrender in
other specificareas. As the Soviet Govemment specifically agreed,
the order provided that on the main islandç of Japan, including
the Island of Hokkaido "and the minor islands adjacent theseto",
of which territory the Habomai Islands and Çkikotan and the
islands of Kunashiri and Etorofu were always, and still are,an
integral part, Japanese amed forces should surrender to "the
Cornmander-in-Chief, U.S. Army Forces, Pacifie". The entire
surrender to di Alliedforces, including the Soviet forces, and the
military occupation which ensued as a result thereof were specifi-
cally provided to be pursuant to the surrender to the "Supreme
Commander for the Allied Powers", who on behalf of al1 the
Allied Powerç accepted J apan's surrender.
General Order No. r contained no provision transferring sove-
reignty from Japan to the Soviet Union or to any other Government
in any Japanese tedtory.
The Soviet Government's action in occupying the Rabomai
Islands, and Shikotan, and Kunashin and Etorofu was not author-
ized by norin accordance with General Order No. Ior any agreement
of the Soviet Government with the United States Government and
other Allied Powerç. Its subsequent action of expelling the native
Japanese population from these islandç and purporting to incorporate
the islands aswell asother Japanese temitory into the Soviet Union
without the consent or approval of the Allied Powers and of the
Government of Japan constituted internationally illegal conduct as
weii as further violation of its agreements with the other All~ed
Powerç, particularly as the Soviet Government's claim oi title to
such territory and the continued presence therein of Soviet author-
itieswas invalidand illegal.
3. Inits note of December 11, rg54, the Soviet Government also
citesin support of its daim of title "directive of the staffof the ANNEXES TO APFLICATION (NO. 5) 27
Svprerne Commander for the Ahed Powers, MacArthur, of January
29,1946" by whick it içclaimed the Habornai Islands "are exduded
from the sovereignty of Jâpan". The United States Government
categorically denies that tius directive, or any oéherdirectiv had
any such intention or effect. The directive in question, aça reading
of if plainly aiscloseswas issued by the Supreme Commander for
the Allied Powers tcithe Imperia1 Japanese Government in per-
formance of the military occupation functions of the Supreme
Commander; it was specifically tentative in character and limited
in scope; and it contained the following çpecific provision which
the Soviet Government ignores-
"Nothing in this directive çhali be conçtmed as an indication
of Ailied poIicy relating to the ultimate determination of the
minor islands referred to in Articl8of the Potsdam Declaration."
l
B. With respect to the Soviet claim of littoralairspace:
As has unfortunately been the case in other diplornatic exchanges
conçerning the Soviet Government's claims of violations of its
boundaries, the Soviet Government ha failed to çtate precisely
where itclairns its boundary mnç. The United States Government
is compelled to concIude from these experiences that the Soviet
Government has deliberately chosen, as a matter of policy,to refuse
to make its territorialclaims çpecifically known to the world
othenvise than by arbitrary and violent actions such as have
charaçterizsd Soviet attacks without warning on innocent Arnerican
aircraft, and the seizwre andimprisonment of Japanese fishermen
and fisking vessels in the area in question. Lest there be anyun-
certainty as to the United States Governrnent's position on this
subject, thmefore, the United States Government takes this oppor-
tunity to declare the foiiowing:
I. Even if, contrary to the fact and applicable law, the Soviet
Government had any legal title, or other legal rights, to the Habo-
mai Islands, such rîghts could not, in any event, extend on the
surface or in the air beyond threenauticai miles from the coastlines,
following thelr sinuosities, of eachof the land masses. The United
States Govetnment refess in this regard to its note of October 9,
1954 on account of a similarincident ufSoviet attack on an innocent
United States military aircraft over the Sea of japan.
2. Even if,contrary to the fact and applicable law, the Soviet
Government had any legal territonal right whatever in airspace or
surface space outside the shores of the land masses in the Habomai
Islands, such right couId in no event be applied or exercised, and
such territorial space could not extend, so as to depriveJapan (and
the United States Government under the Security Treaty) of the
long-established Japaneçe territorial rightsin the waters and air
space adjacent to the Island ofHokkaido and other parts of Japan,
extending three nautical miles from these Japanese land masses.intangible injiiry deliberately and intentionally cautothe United
States Governrnent and the American people by the wrongful actions
ofthe SovietGovernment. In that regard, the UniteStates Govern-
ment has determined to defer toa later date the formulation of the
kind andmeasure ofredress or other action which the Soviet GQV-
ernrnent çhould take which would be appropriate in international
law and practice to confirm the illegality of the actions directed
by the Soviet Government against the United States Govemment
and the American people.
The Government of the LTnitedStates cds upon the Governrnen t
of the Union of Soviet Socialist Republics to make its detailed
answer to the allegationç and demands made in the present corn-
munication. Should the Soviet Government in itç answer acknow-
ledge its indehtedness on accountof the foregoing and agree topay
the damages suffered, the United States Government iç prepared,
ifrequested, to present detailed evidence in support of its calcula-
tions of damages suffesed and alleged.
Accept, Excellency, the renewed assurances of rny higkest
consideration.
NOTE FRQM THE SOVIET GOVEKNMENTTO THE UNITED
STATES GOVERNMENT OF AUGUST 19, 1957
Translated from Russian.
In connection with the note of the Government of the United
States of Arnerica, No. 945ofMay 23, 1957 he Government of the
Union of Soviet Çocialist Republicç considers it necessas.to çtate
the follawing.
Examining the above-mentioned note of the Government of the
USA relatingto the incident which took placein connection with
the violatian by an American four-motored military airplane,
B-zg, of the state border of thUSSR in the tegionof the islandof
Tanfilyev (Kurile lslandç) on November 7, 1954,the Soviet Govern-
ment notes that in thisnote, thereis contained nothing new relative
to the incident in question in cornparison with what the Govern-
ment of theUSA kas previouslystated on this question.Inthe note,
there is again repeated a version of the incident, contradicting
exactIy established facts at the disposaof the Soviet Governmen t.
The Soviet Government in its notes of November 7and Decern-
ber II,1954, has already set forth, on thbasis of factual datathe
conditionsof the violation by an Amencan military airplane of the3O ANNEXES TO APPZIÇATTOX (NO. 6)
Soviet state border. Verified factual data show thaon November 7,
1954 at 12 :qr Vladivostolc time, an American military airplane
B-29 violated the state border of theUSSR in Soviet Çtrait (Koe-
mai-Kaikio) towards the southwest from the shoal of Kaigara-
Sendan and penetrated into the airspace of the USSR to the extent
of more than 30 kilometers, approximately to a point with coos-
clinateç of146' 1' eastern longitude and 43'24' northern latitude.
Aftes that, the B-zg airplane turned towards the weçt, went over
the northern extremity of Yuti Island and then over Tanfdyev
Islands (Kurile Islands), where it %vasmet by two Soviet interçep-
tors, moaing towards it with the intention of indicating that iwaç
located within the lirnits of the borders ofUSSR and ofpsoposing
that it immediately leave the airspace of the Soviet Union. On
approaching the E-zg airplane the Soviet interceptors were fired
at from the sideinstallationof the American airplane, in connection
with whiçh they were obligedto open answering Erre.Only aftet this
did the violating American ailplane quit the airspace of the USSR
and depart ina southwesterly direction.
Taking into consideration thât the facts ofthe violation by the
above-mentioned American airplane of the state border of the
USSR and of the firing by it at the Soviet airplanes are exactly
established and that in consequence of this responsibility for the
incident in question is placed fully on the American side, the Soviet
Governrnerit rejects the claim setforth in the note of the Govern-
ment of the USA of May 33, 1957as unfounded.
In conneçtion with this, the Soviet Governrnent considers it
neceçsary to note that the assertions contained in the note of the
Government of the USAthat there are supposedly at thedisposition
of American authorities proofs of the correctness of their version of
the incident with the 13-2a9irplane are all the more strange in that
they are being brought out more than two and a half years after the
incident. To assert, in these conditions, for example, that the
Government of the USA supposedly passesses "indisputable evi-
dence" that the Arnerican airplane allegedly did not open fire on
the Soviet airplanes seems, at thevery least, fnvolous.
As regards the statement of the Government of the USA that
supposedlyseveral South Kurile Islands, in the region of whichthe
incident with the American airplane took place, are not Soviet
territory, such a staternent has no basis, as has already been
shown in the note of theSoviet Government of December Ir, 19.54.
Moreover, it isin open contradiction with well known international
agreements and documents, çigned by officialrepresentatives of
the United States of Ameriça.
It ipossible only to add to that which is stated in tnote of the
Soviet Governrnent of Decernber 11, 1954, that in general thereis
not, in these documents dealing with territorid questions, and
patticiilarly in the Yalta Agreement, which provided for the transfer
of the Kurile Islands to the Soviet Union, even one article oroneto note No. 945 of the United States of America dated May 23,
1957, relating to the destruction on November 7, 1954,by Soviet
military aircraftofa United StatesAir Force B-zg airplane engaged
in Iegitimate and peaceable flight in the area of the Japanese
island of Hokkaido.
On the principal issues of fact raised by the prior exchanges of
notes between the United Stateç Govern~nent and the Soviet
Governrnent on this incident, the Soviet Government's new note
constitutes no clarification. It does not state where the Çoviet
Government clairns its territorial jurisdictionto begin in the area
of the Nemuro Peninsula. It further varies the account given by
the Soviet Government in psior communications of the alleged
course of flight of the United States Air Force B-29 which was
attacked and destroyed over the içlandof Hokkaido, and it provides
no justification for such action.
The Soviet Government haç thus çategorically taken issue with
the United States Government's allegations of fact in prior corn-
rnunicationç, particularly in note No. 945 of May 23, 1957, and
with the legal validity of the United States Government's con-
tentions. The propriety of the conduct oSthe Soviet fighter aircraft
and of Çoviet claims to the areas of the Habomai Islands and
Shikotan, and to Kunashiri and Etorofu, and their territorial
waters rernains indispute. If the Soviet Government also clairns
any territorial rightç in the Goyornai Strait or in the waters
adjacent to the Nernuro Peninsula such clairnçtoo are disputed.
The United States Governrnent denies the Soviet Govesnment 's
contentions oflaw and fact and further reasçerts that the actions
of the Soviet Governrnent against the B-zg aircraft were without
warning and unprovoked and, under the circumstances which
obtained, illegal.
The United States Governrnent therefore belieoes, and hereby
notifies the Soviet Government that it deems, that an international
dispute exists between the two Governments falling within the
cornpetence of the International Court of Justice and proposes
that the dispute be presented for hearing and deciçion in the
International Court of Justice. Since the Soviet Government has
thus far not filed with that Court any declaration of acceptance
of the compulsory jurisdiction of that Court, the United States
Govemment invites the Soviet Government to file an appropnate
deçlaratian with the Court, or to enter into a Special Agreement,
by which the Court may be ernpowered in accordance with its
Statute and Rules to determine the issues of fact and law between
the parties. The Soviet Government is requested to inforrn the
United States Government of its intentions with respect to such
a declaration or Speçial Agreement.
Accept, Excellency, the renewed assurances of my l-iighest
consideration.
Application Instituting Proceedings