Dokdo/Takeshima/Liancourt Rocks (Dokdo),
the subject of a territorial dispute between Korea and Japan, is composed of
two islets and a few rocks, and is located midway
between the Korean Peninsula and the main islands of Japan.
The South Korean government flatly – and
quite expectedly – dismissed the
official proposal from Tokyo
to take the Dokdo issue to the
International Court of Justice (ICJ), contending that “No territorial dispute
exists about Dokdo because it is clearly a Korean territory historically,
geographically and under international law.”
Professor Julian Ku in his blog at Opinio Juris saw the reason for the dismissal
unpersuasive from a legal perspective, and supposed that Korea rejected the
proposal simply because it currently controls Dokdo. He went on to argue that Korea should accept
Japan’s proposal in order to settle the source of tension amicably, setting a
good precedent of international adjudication for countries in Asia with
territorial disputes –
notably China.
Probably, professor Ku is not alone in his view
on how to resolve the dispute over Dokdo.
Obviously, Japan steadfastly holds on to the ICJ as a way of resolving
this dispute with Korea, claiming
that it intends to settle all
disputes peacefully -- a clear break from the past imperialism if genuine. I’ve never come across a single non-Korean
who casts any negative light on the Japan’s proposal. In fact, no country appears to be even
remotely sympathetic to Korea’s stance against the ICJ as a venue to resolve the
dispute.
The apparent lack of support outside of the
Korean Peninsula is mainly because the Korean government has neglected –
whether intentionally or not – to publicly advocate for its stance, though there
is a strong legal case. This blog (main
source of which is here and here) is to present
my understanding on why Korea did and should reject the Japan’s repeated
proposals to take to the ICJ the dispute over Dokdo that became the very first
victim of the overall process of imperialist Japan’s aggression against Korea. The merit of the dispute, i.e., which country
has sovereignty over Dokdo, will be touched on only to the extent necessary for
the purpose of this blog.
It is both the composition of the ICJ and
laws it is likely to apply that would not only be expected to work
disproportionately in favor of Japan, but also put Korea at unjustifiably
inflated risk of losing what Koreans have considered to be the symbol of the
Korean independence from Japan’s colonial rule.
Japan has had a permanent judge of Japanese
nationality sitting in the ICJ for the most part of more than 60 years of its history,
whereas Korea has had none. It would be
naïve to assume that an ad hoc judge Korea may appoint if it were to consent to
the jurisdiction of the ICJ, will be able to exercise as much influence among
permanent judges as the permanent judge of Japanese nationality. In 1950s, even when the ICJ had no permanent
judge of Japanese nationality, Japan could make the first proposal of the same
kind as the latest one on the reasonable assumption that the United Nations (UN)
would elect a permanent judge of Japanese nationality in the foreseeable future,
given that Asia had no permanent judge other than those from China and USSR,
permanent members of the U.N. Security Council, and that no country in Asia was
prepared to compete with Japan for the seat of permanent judge.
My conclusion – the Japan’s proposal was
not out of a genuine intention to settle all disputes peacefully, but out of
the calculation that it had a leg up over Korea on the composition of the ICJ –
would have been easily refuted if Japan had consistently made the same proposal
in territorial disputes with states that have a permanent judge. Strikingly, but not surprisingly, a
distinctive feature to the Japan’s proposal is its curiously selective
nature. In territorial disputes with
China and Russia over Senkaku/Diaoyu Islands and the Kurils, respectively,
Japan either chose not to make such proposal or rejected, whether
implicitly or explicitly, a call for the ICJ from the other party. In sum, Japan only pursues a game on such
setting as put it at disproportionate advantage even before the game starts.
Professor Ku surmised that Japan
did not welcome a call from China for the ICJ over Senkaku/Diaoyu Islands simply
because Japan possesses the territory. I
disagree and suppose that Japan refuses to agree to ICJ arbitration because
Japan has no vested advantage at the ICJ over China that has a permanent judge. If Professor Ku were right in his surmise,
Japan would have made a call for the ICJ over the Kurils that it did not
possess like it insisted on ICJ arbitration over Dokdo it did not possess.
As with colonized countries in Asia and
Africa, Korea advocates lege ferenda (what
the law should be) to be applied in territorial disputes, whereas colonial
countries prefer lege lata (current
law). The current international law the
ICJ is likely to apply is unclear on legal effects of acquisition of territory
at best and condones colonial occupations at worst. It is not a surprise because many judges are
from former colonial powers, and most judges have been trained in western
jurisprudence. Korea is justly reluctant
to agree to ICJ arbitration in a territorial dispute over the two islets that
became the first victim of Japan’s imperialist aggression, unless there is a
guarantee under current international law that the measures based on
colonialism be treated as null and void – lege
ferenda.
To help you better understand how a legal
effect of Japanese colonial measures will play out in the ICJ proceeding, I
briefly explain two main arguments Japan lays out to prove its ownership of
Dokdo. Its primary argument is that
Dokdo is an inherent part of Japanese territory historically and originally. In response to this argument, Korea is
confident that it will prevail over Japan despite the composition of the ICJ
that gives Japan a leg up, because historical evidences are overwhelmingly in
favor of Korea.
The alternative argument is that Japan “incorporated”
Dokdo in 1905 as prior occupation of a terra
nullius
– land belonging to no one – under international law. If legal effects are granted to the
“incorporation,” the consequence in the ICJ procedure would be that Korea has
to bear an unfairly heavy burden of proving its ownership of Dokdo by that time;
by contrast, in the primary argument where both parties claim historical or
original title to Dokdo, the ownership will be decided by the relative merits
of each party up to 1905. The burden of
proof, I argue, is unfairly heavy, because legal effects shift it from the
colonial state to the victim of its past colonialism in a dispute over islets
that were “incorporated” by colonial measures.
To be clear, there is an abundance of
evidence demonstrating Korea has effectively possessed Dokdo for hundreds of
years. It is one thing to have a legally
strong case. It is another to avoid a
forum like the ICJ where its composition and laws it is likely to apply will
create an unjustifiably inflated risk. More
importantly, the fact that Japan still puts forward an argument based upon its
colonial measures raises the specter of its colonialism and betrays remnants of
its imperialism. Korea would appear to
endorse the remnants if it agreed to a forum that can possibly grant legal
effects to colonial measures by Japan like the “incorporation” of Dokdo.
Then, how can the dispute over Dokdo be
settled peacefully? There will be much
more room for a settlement through conciliation or arbitration, if Japan either
agrees that the “incorporation” of Dokdo in 1905 based on colonialism is null
and void, or proves that the “incorporation” had nothing to do with its
colonial policies on Korea. In plain
English, Korea will sincerely respond if there is a genuine territorial
dispute.
Indeed, a leading Korean scholar suggested
a settlement through arbitration – where the parties can choose decision-makers
and the law that will govern their dispute – in the late 1960s, and received no
response from Japan in any form. This
indicates Japan in this dispute expects to take advantage of lege lata that will likely give legal
effects to colonial measures, not to mention the composition of the ICJ. By all accounts, at the heart of the dispute
over Dokdo is the still lingering imperialism of Japan.
As such, Korea’s stance against the ICJ in
a dispute over Dokdo is not out of infantile nationalism nor parochial
interests of its constituents.
Hopefully, you can see Korea has a legally strong case for its stance. For the remainder of this blog, I would like
to elaborate on the statement that “Dokdo is a Korean territory historically,
geographically and under international law,” inasmuch as Professor Ku saw this
reason unpersuasive.
Historically, one of the most authoritative
records of Korean state affairs published by the Korean government in 1454 made
a direct reference to Dokdo by describing it along with Ulleungdo, another
island lying within a visible distance from Dokdo. Since then, official records that mention
Dokdo has been repeatedly found. In
stark contrast, an act of fishing by an individual fisherman, which cannot be
considered a government act, is the kind of evidence Japan can produce
regarding its activities up to the year of 1905 when the “incorporation” took
place.
Geographically, Dokdo was considered
subsidiary to, or part of Ulleungdo rather than an independent entity, because
Dokdo was no more than tiny and uninhabited islets located in the vicinity of
the much bigger neighboring island. Such
perception of Dokdo is also evidenced by all of the old Japanese maps that
depicted both islands together as a territory of either Korea or Japan. That said, it is Korea that unarguably has
sovereignty over Ulleungdo.
Under international law, Dokdo was by no
means terra nullius, contrary to the
argument Japan made to justify the “incorporation” by prior occupation. Historical records in Korea aside, the
official announcement of the Japanese government on the “incorporation”
included a description of Dokdo that conflicted with terra nullius: “The ownership of Dokdo was undetermined.” Japan could not acquire the ownership by
prior occupation in the first place, because of the clear difference between terra nullius and a territory whose
ownership is undetermined.
Japan also argued that Korea acquiesced to
the “incorporation” of Dokdo in 1905 based upon the fact that Korea did not
protest to the measures. It should be
noted that the process of colonization of Korea had started many years before
it was finally annexed in 1910. In 1905,
when the “incorporation” marked the first victim of imperialist Japan’s
aggression, Korea had been reduced to a de
facto protectorate of Japan, leaving Korea unable to take any measure
against the “incorporation.”
Last but not least, citing the San Francisco
Peace Treaty of 1951 that mentioned only three big islands – Chejudo, Kojedo
and Ulleungdo – as islands to which Japan had to renounce its right, Japan
argued that Dokdo should be considered Japanese territory because it was
located outside Ulleungdo. Korea
countered that the Treaty left out many islands within the territory of Korea
and that these three islands did not represent the outermost sides of
Korea. For example, Marado, though left
out in the Treaty and located outside Chejudo, is unarguably within the
territory of Korea.
As a Korean who recently graduated law
school, I summarized what I understood to be reasons Korea opposed the Japan’s
proposal to take the dispute over Dokdo to the ICJ, and also elaborated a
little bit on the statement that Dokdo is a Korea territory historically,
geographically and under international law.
I am looking forward to hearing voices from both sides.
