[1]   Treaty of Versailles of June 28, 1919; Article 119. [back]

[2]    Washington Naval Treaty for Limitations in Naval Tonnage (1922) Article 19 prohibits the construction of fortifications west of Hawaii. [back]

[3]   Convention between the United States of America and Japan with regard to the rights of the two Governments and their respective nationals in the former German Islands in the Pacific Ocean lying north of the equator, in particular the island of Yap. Concluded February 11, 1922. [back]

[4]   That is, the former German colonies of the Caroline Islands, the Mariana Islands and the Marshall Islands, excluding Nauru. [back]

[5]   Covenant of the League of Nations, Article 22. [back]

[6]   Cf. Wasisang v. Trust Territory 1 T.T.R. 14 (1952). The Japanese Government left all those German regulations in plcae, or placed them on their own books, which were either beneficiasl for Japanese interests, or were politically advisable for arguments in the international arena of the League of Nations: "With regard to the land system, no detailed Regulations have as yet been enacted, but rights already acquired on land in accordance with old customs or German Laws are generally recognized irrespective of whether their owners are natives or not and owners are free to dispose of their land in whatever way they choose. However, a policy adopted under the German regime to protect native land-owners is still followed, placing restrictions upon the disposal of land, the property of natives, until a definite land system will be established" (Annual report to the League of Nations on the administration of the South Sea Islands under Japanese Mandate for the year 1929. [Tokyo]: Japanese Government; CHAPTER VII. Land System; Pp. 78-81). [back]

[7]   Treaty of Versailles, Articles 120 and 257, [[section]] 2. The following represents the Japanese government's view on the ownership and use of government land: "(a) Government Land. (State Domain). With regard to the legal nature of the State domain in the territory the Japanese Government fully explained its attittude in its Annual Report for 1924. In its opinion, the State Domain in the mandated territory may be divided into two classes. The first class consists of those parcels of land which were transferred to Japan under article 257, paragraph 2 of the Treaty of Versailles, and the second of those which have been purchased by the Japanese Goverment or are exploited by it at is own expense. The former class is to be regarded as property belonging to the Government in its capacity of Mandatory. The same right may be said of the latter class. When, however, this second class of land is examined, it is found that it includes properties which have been purchased or exploited by the Government on its own account, and which may, therefore, be regarded as the actual domain of the Goverment. An instance of this is the land purchased from the German South Sea Phosphate Company. The mandated territory is administered by the Japanese Government as an integral part of its own territory, in accordance with the Covenant of the League of Nations. For this reason all State domains in the mandated territory are treated just like other State domains of the Japanese Empire, no discrimination whatever being set up between them.

"And land in the territory except such as is the property of private persons is considered part of the State domain, and no party other than the Government can exercise the right of occupation by priority. With regard to the management of the State domain, a South Seas Bureau Rule, promulgated in July,1922, declares that the Law on State Property of the Japanese Empire shal apply mutatis mutandis to the territory. According to this law, State domain is classified into the following four classes and for each class an appropriate procedure for its disposition and management is provided.

1. Domain for public use. (Property for public use) - Properties assigned or decided to be assigned by the Government directly for public use.
2. Domain for Government use. (Property for Government use) - Properties assigned or decided to be assigned by the Government for Government business or undertakings or for residences of officials and others in Government service.
3. Domain for foresty. (Forest property) - Properties assigned or decided to be assigned by the Government for Government dendrological enterprise.
4. Domain for misllenaneous purposes. (Miscellaneous property) - Properties not coming under any of the above-mentioned categories.
"With the exception of No. 4, these species of State Domain may not be transferred nor be made objects of private rights. This rule, however, does not apply to permission for the use or exploitation of properties by private persons so long as it does not prejudice their use by the Government or the purpose for which the Government possesses them. As regards miscellaneous properties, these may not be transferred or leased gratuitously except in cases in which the Government or the public require them for public or Government use and in a few other cases" (Annual report to the League of Nations on the administration of the South Sea Islands under Japanese Mandate for the year 1929. [Tokyo]: Japanese Government; CHAPTER VII. Land System; Pp. 78-81). [back]

[8]   Such as in the case of Pakaein Atoll, Ponape State, FSM, confiscated by the German government as a result of the Sokaes rebellion of 1910/11 (see Christopher v. Trust Territory 1 T.T.R. 150). The same applies to the atolls of Bikar and Taongi (Bokak) [back]

[9]   NBK - Nan'yo Boeki Kaisha (South Seas Trading Company). [back]

[10]   Yanaihara 1940. 174. Thus, for all practical purposes, the NBK became the successor of the Jaluit Gesellschaft in the Marshall Islands. The Japanese government stated its position as follows "Contracts for the lease or purchase of Government land are governed by the provisions of the "Civil Code of the Empire" and come entirely within the domain of private law, the only exception being the reservation to the Government, for the sake of Government or public interests, of the right of rescinding the contract or of purchasing property on leased land, as is provided for in the "Law of State Property." According to the provisions of the "Law of State Property," the term of lease of Government land shall be within the maximum of eighty years in the case of land to be used for afforestation and within the maximum of thirty years in other cases. The Government land now leased in the South Sea Islands indudes palm forests, plantations, meadows and building ground, the palm forests being usually leased for a term of 30 years and other land for one of 20 years. The rates of rent are calculated upon taking into account the fact whether the land is reclaimed land or not and various other circumstances" (Annual report to the League of Nations on the administration of the South Sea Islands under Japanese Mandate for the year 1929. [Tokyo]: Japanese Government; CHAPTER VII. Land System; Pp. 78-81). [back]

[11]   In keeping with international law; see section III. [back]

[12]   Such as the plantations of the Jaluit Gesellschaft to the NBK and the phosphate mines on Angaur, Palau, owned by the Deutsche Suedsee Phosphat Compagnie (German South Ses Phospahte Compnay) first to the Japanese Government itself and then to the Japanese Government-controlled Nan'yo Takuchoku Kabushiki Kaisha (South Sea Colonial Company; Yanaihara op. cit. [footnote 55]: vii, 56-57). [back]

[13]   The High Court of the T.T.P.I ruled in a decision of 1967 that "[w]hile power of eminent domain is attribute of sovereignty, this does not mean it can only be exercised by body which is recognised as souvereign in international sense" (Trust Territory v. Ngiralois 3 T.T.R. 303). Thus, by inference, the Japanese government had also the right to claim land under the principle of eminent domain. And since eminent domain is an attribute of souvereignty, it also "inherent in government" and "implied without being specified" (Ngiralois v. Trust Territory 4 T.T.R. 517). [back]

[14]   See Catholic Mission v. Trust Territory 2 T.T.R. 251 (1961). [back]

[15]   Both the ownership in land and the food resources represented by it (cf. Yanaihara op.cit. (footnote 55) 75-76; Ishoda 1928).
This also becomes evident from the following formulation in the Annual reports to the League of Nations: "In respect to the land belonging to natives in the district within the jurisdiction of the Jaluit Branch Bureau, there exists a usage which is quite different from that obtaining in other district. This land is in the exclusive ownership of tribal chiefs and the people in general have the right of exploiting them, subject to an obligation to render to the chiefs part of the profit arising from the palm groves which constitute the principal portion of such land. With regard to the legal nature of this usage, no detailed account is here given, as it requires further investigation (Annual report to the League of Nations on the administration of the South Sea Islands under Japanese Mandate for the year 1929. [Tokyo]: Japanese Government).
Apparently in the mid-1930s the Japanese had made up their mind and introduced innovative land management rules in order to facilitate the growth of their colonial economy (under the mantle of the Mandate) and to facillitate the acquisition of land for military bases. The Japanese seem to have introduced a concept that the land rights of the three parties involved are not comparable, but that they can be split up: the Irooj owns the land outright, while the kajur, that is the alap and the dri-jerbal own the produce on it, the fruit of their labour, such as plants and trees. (cf. Tobin 1952 14). [back]

[16]   According to traditional Marshallese custom the Iroj laplap must approve or acquiesce in any transfer of land interest before it is valid (p above). The position of the Irooj laplap of Majuro had become vacant with the death of the Irooj laplap Jebrik Lukotworok in 1919. The Japanese government consistently refused to bring the two resulting lines (of "Jebrik's side") together under one leadership. The powers of the Irooj laplap were exercise by Jebrik's drouloul, which during the Japanese administration and with their expressed approval, was represented by the committee of 14, seven irooj eriks and seven alaps. The Japanese administration of Majuro also had a say in the descisions of this committee. This group was replaced after World War II at the beginning of the American administration by the 20-20 committee. The issue is discussed in detail in the case of L.Levi, et al. versus Kumtak, et al.. Combined Civil Action No.1; 1 T.T.R. 36 (1953); See also Jatios v. Levi, H.C.T.T.App.Div. 1 T.T.R. 578,583 (1953); Lazarus v. Tomijwa 1 T.T.R. 123 (1954); Jatios v. Levi 1 T.T.R. (1954); Joab v. Labwoj 2 T.T.R. 172, Lojob v. Albert 2 T.T.R. 338 Tikoj v. Liwaikam 5 T.T.R. 483; "Irooj" on Jebdrik's side v. Jakeo 5 T.T.R. 672; Wena v. Maddison 4 T.T.R. 194 Lanki v. Lanikeo 7 T.T.R. 533; Nashion v. Litira 8 T.T.R. 357; and Lanki v. Lanikieo 6 T.T.R. 397. The initial ruling of Levi v. Kumtak was upheld in similar circumstances in Ladrik v. Jakeo T.T.H.C.Tr.Div. 6 T.T.R. 389, 396 (1973). In the case Levi v. Kumtak the American administration formalised the Japanese pattern; the courts, however, set out clearly that any reversal of the status quo would be a decision for the law makers and not the courts (see Levi v. Kumtak, reconfirmed in Lazarus v. Tomijwa and Ladrik v. Jakeo). the Japanese administrative decision, on which levi v. Kumtak was based was subsequently declared null and void by the Customary Law (Restoration) Act 1986 passed by the Nitijela in 1986 shortly after the Compact of Free Association (see below) had come into effect. [back]

[17]   Henry v. Eluel 5 T.T.R. 58. In the same case the High Court of the T.T.P.I. ruled that the determinations made by the Japanese surveyors were correct (see also Malarme v. Ligor 4 T.T.R. 204). [back]

[18]   Prior to the U.S. attack on the Marshall Islands regulations concerning handling of enemy and alien property, as well as claims for war damages were prepared by the U.S. government (Proclamation No.5; see also CinCPOA letter serial No. 0318 dated 26 January 1944; quoted in Richard, D.E., 1957, United States Naval Administration of the Trust Territory of the Pacific Islands. (2 vols. Washington, D.C.: U.S. General Printing Office( Volume 1, Page 424). [back]

[19]   "Trusteeship Agreement for the Trust Territory of the Pacific Islands", Preamble. [back]

[20]   Charter of the United Nations Chapter XI: Declaration regarding Non-self Governing Territories, Articles 73- 76; Chapter XIII: International Trusteeship System. See also "Trusteeship Agreement for the Trust Territory of the Pacific Islands" (in Heine, C., 1974, Micronesia at the Crossroads. A reappraisal of the Micronesian Political Dilemma. [Honolulu: East-West Center, University Press of Hawaii]. Pp. 188-191).
At the San Francisco Conference on April 25, 1945, Micronesia was placed under the International Trusteeship System of the United Nations. The draft agreement between the U.S. to act as trustee and the United Nations was approved by the Security Council on April 2, 1947, and Micronesia was turned over to the U.S.Navy administration on July 19, 1947 (Heine op.cit. :4-5). [back]

[21]   Code of the Trust Territory of the Pacific Islands 1966. [[section]] 23. [back]

[22]   Just in the same way as the Japanese government had regarded itself as the suceeding souvereign and thus as the successor to all title previously held by the Imperial German government.Cf. sequence of arguments in Ochebir v. Municipalty of Angaur 5 T.T.R. 162. [back]

[23]   The TTPI government also assumed control of the atolls of Bikar and Taongi (Bokak) which had been annexed by the Germans (see footnote 49) and had been kept as public land by the Japanese. Anthropololgists working in the pay of the TTPI government urged the TTPI government to withdraw its claims on the atolls (Tobin op cit. [footnote 4)] 12) without stating who the owner (in modern times) should be.
Code of the Trust Territory of the Pacific Islands 1966. [[section]] 24; Or December 8, 1941 as in Ibid [[section]]900.
In a previous determination, which is superseded and invalidated by the Revised T.T.Code of 1966, the cut-off date for the validity of land transfers during the period of the Japanese Mandate was taken as March 27, 1935 (Land management regulation No.1; Trust Territory Policy Letter P-1 of December 29, 1947).
The Policy Letter stipulates that "Land transfers from non-Japanese private owners to the government, japanese corporations or Japanese nationals since March, 27, 1935, will be subject to review. Such transfers will be considered valid unless the former owner (or heirs) established that the sale was not made of free will and just compensation was not received. In such cases, title will be returned to the former owner upon his paying in to the Trust Territory government for the amount received by him." "Policy letter P-1, and administrative policy letter issued in 1947 ... was a mere statement of policy, and does not have the force and effect of law." (Ogarto v. Johnston 8 T.T.R. 62).
The significance of the date, March 27, 1935, rests in the fact that on this date the Japanese delegation walked out of negotiations regarding the renewal of the Washington Naval Limitations Treaty of 1922. Following Japans refusal to renew it, the treaty itself expired on January 1, 1937. From when on, as far as the --then already powerless -- League of Nations ws concerned, the Japanese Mandate of Micronesia was no longer fully legal.
Peattie, M.R., 1988, Nanyo. The rise and fall of the Japanese in Micronesia, 1885-1945.(Pacific Islands Monographs Series, No.4. Honolulu: University of Hawaii Press) Page 244. [back]

[24]   Code of the Trust Territory of the Pacific Islands 1966. [[section]] 24. ( p also 1 TTC [[section]] 105); At another location ([[section]] 900) the Trust Territory Code stipulates that "only citizens of the Trust Territory may hold title to land in the Trust Territory; provided, however, that nothing herein shall be construed to divest or impair the right, title or interest of non-citizens or their heirs or devisees, in lands in the Trust Territory held by such persons prior to December 8, 1941 [the date of the Japanese attack on Pearl Harbor], and which have not been vested in the Area Property Custodian by vesting order dated September 27, 1951." In this context refer to a discussion of the Japanese land management decisions on Majuro Atoll in the previous section. [back]

[25]   The courts commonly held that it was then (in the 1950s, 1960s and 1970s) too late in the day to right the wrongs of a former administration and, furthermore, that "a nation which takes over land from another nation is not required to correct alledged wrongs done by the nation formerly holding the land or by others while the land was in the hands of the first nation" (Ochebir v. Municipalty of Angaur 5 T.T.R. 160, 180). Only if the alledged wrong took place so shortly before the take-over of the land that it could not be redressed in the courts of the first nation, then the courts of the second nation may attempt to redress the wrongs (Ibid. 160).
In Lazarus v.Tomijwa ( 1 T.T.R. 123, 127-128; 1954) the High Court of the T.T.P.I. specifically stated that "Marshallese custom does not control over clearly expressed and firmly maintained determinations of Japanese Administration" and that a "[d]etermination of Japanese Administration concerning land law, which deviated substantially from Marshallese custom, effectively changed law so ar as land in question is concerned". [back]

[26]   Code of the Trust Territory of the Pacific Islands 1966. [[section]] 925. See also: Trust Territory Policy Letter P-1 of December 29, 1947.
Similar to Japan, in the area of property rights, the Trust Territory Government claimed to be in a position like that of a succeeding souvereign taking over government of land conquered by it or ceded to it by another nation. Such a souvereign, the Trust Territory government claimed, is entitled to rely upon and respect official acts of the preceding administration. Wasisang v. Trust Territory 1 T.T.R. 14 (1952); Raimato v. Trust Territory 3 T.T.R. 269. [back]

[27]   Vesting Order dated September 27, 1951. Issued under T.T.P.I. Interim Regulation No. 4-48 and amended by Interim Regulation Nos. 6-48 and 3-50. [back]

[28]   Code of the Trust Territory of the Pacific Islands 1966. Sections 532 and 533. Alien property was defined as all "property situated in the Trust Territory formerly owned by private Japanese national, by private Japanese organisations, or by the Japanese Government, Japanese Government organisations, agencies, Japanese Government quasi corporations or government-subsidized corporations" including "tangible and intangible assets" (Ibid. Section 532). See confirmatory rulings of the High Court of the T.T.P.I. in Ngirkelau v. Trust Territory 1 T.T.R. 544, 548 (1958). [back]

[29]   By executing and delivering quitclaim deeds (Cf. Ochebir v. Municipalty of Angaur 5 T.T.R. 162). [back]

[30]   see above [back]

[31]   Compact of Free Association between the Government of the United States of America and the Government of the Republic of the Marshall Islands 1982. Article VII, Section 171. [back]

[32]   The United Nations as well as other international organisations, such as the EEC, take another view to the matter and do not recognise the until the last part of the Trust Territory Pacific Islands, Palau, has been led to complete independence. In the eyes of these organisations the Trust Territory is still in existence [back]

[33]   Compact of Free Association between the Government of the United States of America and the Government of the Republic of the Marshall Islands 1982. Title 2: Economic relation; Article 3: administrative provisions; [[section]] 234. see also United States Public Law 96-597 (94 Stat. 3477). [back]