Territorial Sovereignty Over Dokdo

Territorial Sovereignty Over DokdoYeon-Jae BaeI. The Period from 512 A.D. to 19051. Since the Appropriation of Wusan State by Shilla in 512 A.D., Korea has Effectively Occupied Dokdo Based on Historical As Well As Legal Grounds in Accordance With International Law.(1) An Effective Control as a Requirement For the Acquisition of Uninhabited Territory in International LawCustomary international law developed through decisions and awards of international and arbitral bodies, provides traditionally recognized modes of territorial acquisition. They are discovery and occupation, cession, accretion, conquest and prescription. Among these five modes, discovery and occupation is most applicable to Dokdo. Occupation is a states intentional appropriation of sovereignty over territory treated as a terra nullius, and this concept of occupation, which once was fulfilled by mere discovery, has gradually moved towards to the notion of “continuous and peaceful display of state sovereignty”, firmly established by various international decisions and awards. However, control, although needing to be effective, does not necessarily have to amount to possession and settlement of all of the territory claimed. Precisely what acts of sovereignty are necessary to found title will depend in each instance upon all the relevant circumstances of the case. In the Island of Palmas arbitration, it was emphasized that the intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved. Similarly in the Clipperton Island arbitration, the arbitrator clearly stated that the actual taking of possession may be undertaken in different ways depending upon the nature of the territory concerned.(2) Korea Has Effectively Occupied Dokdo, a Terra Nullius, In Relation To Customary International Law.a. Effective Control Over Dokdo by Shilla and Koryo DynastyKoreas claim to legal title to Dokdo dates back to Shilla Dynasty when Wusan State was conquered by Shilla in 512 A.D. There remains the question of territorial boundary of Wusan State, but according to 軍政篇, a historical record compiled by the government of Chosun Dynasty, it is found that “Ullungdo and Wusando are both territories of Wusan State, and Wusando is what Japanese have been calling Songdo (松島), a Japanese name corresponding to Dokdo. Since the conquest of Wusan State, Korea has been exercising effective control over what is now called Ullungdo and Dokdo. As far as an uninhabited island is in question, relatively minimal acts of effective occupation may be sufficient to establish sovereignty over the island, as it has been mentioned before. Historical records show that Dokdo has been successfully occupied by Shilla, and then by Koryo Dynasty when it succeeded Shilla in 917 A.D. The facts, which illustrate the administration of the Ullung district by Koryo, affirm Dokdo as a part of Korean territory. Some of these facts include: the rescue of the people of Wusan State from the Mongolian attack in 1018; the offering of domestic products of Ullungdo by Lee Yang-Sil in 1141; and the official inspection of Ullung area by Kim Yoo-Rip in 1157.b. Korean Exercise of Sovereignty Over Dokdo from Chosun DynastyWhen the Chosun Dynasty succeeded Koryo in 1392, it adopted a policy of prohibiting the settlement on Ullungdo, thus leaving the island and the adjacent islets uninhabited from 1417. Hence, there seems to be an argument that Chosun had the intention of abandoning Ullungdo, and Dokdo as a consequence, leaving these two islands as terra nullius.As international decisions and awards of judicial and arbitral bodies have shown, in order for a state to abandon territory, not only the fact of loss is required but also the intention of abandoning it. In other words, the fact that a state has not exercised its authority in a positive manner does not imply the forfeiture of an acquisition already definitely perfected. Regarding Dokdo in particular, as it is evidenced in historical records, the Chosun Dynasty had continuously displayed its sovereignty over the Ullung area, and thus, it had no intention of abandoning it. The reasons for adopting its prohibition policy was mainly due to danger caused by frequent attacks by foreign, especially Japanese, pirates. Moreover, the mere fact that Chosun had employed such policy means that it has been employing the necessary and appropriate authority over the disputed area. Accordingly, King Sejong of Chosun clearly states in 世宗實綠地理志(1454) 江原道 蔚珍縣條 that these two islands remain as Chosun territory under the control of Ulljinhyun of Kwangwon District. In addition, the geographical recognition of Dokdo is recognized by the Korean government as it is found in 新增東國與地勝覽, a record devised by the government of Chosun in 1531 to define Korean territory. The following historical events are some of the evidences, which attribute to Chosuns display of authority over Dokdo during the period between 1417 and 1881 when the prohibition policy was adopted.First is a diplomatic clash between Korea and Japan concerning the ban on foreign travels to Ullungdo and Dokdo. In a dispute between Korean and Japanese fishermen which had gradually developed from the year 1693, it was finally resolved when the Japanese government acceded to Koreas request by banning Japanese nationals from going to Ullungdo and Dokdo for fishing and cutting timber. Second is the frequent inspection by the Korean government. During the period when Koreans were prohibited from settling on Ullungdo, every three years or so for almost three hundred years from the late seventeenth century on, the Korean government regularly sent inspectors to the island to enforce the prohibition. Needless to say, Koreas regular dispatch of its officials to the Ullung area to enforce the ban on settlement by both Koreans and Japanese nationals, constituted an act exercising a function of a state with the right of sovereignty over Ullungdo. Third, the Japanese Foreign Ministry in turning down the application to develop Matsushima (=Dokdo) by the Japanese fishermen in the 1870s, it had stated in the conclusive recommendation that “Matsushima is a name which the Japanese nominated and the original name is Wusando which is attached to Ullungdo of Korea”.Meanwhile, the Korean government changed its policy of banning its nationals from going to Ullungdo in 1882, permitting Koreans to settle there. Following its change in policy, on October 25, 1900, the Korean government issued Royal Edict No.41, published in Korean Official Gazette No.1716 dated October 27, 1900, which reformed the administrative district of Ullungdo to include the two islands adjacent to it, Jukdo and Sokdo respectively. Of these adjacent islands, Sokdo, in fact, corresponds to Dokdo since the word sok refers to dok meaning rock. It is noteworthy that, when it regards thinly populated or unsettled territories, legislation is one of the most obvious forms of the exercise of sovereign power.As it has been evaluated from various historical records, and within the broad framework of international law on territorial acquisition and loss by evaluating the historical, it is reasonable to reach the conclusion that Korea has the rightful title to the ownership of Dokdo beginning from the year 512 A.D. and it had no intention of abandoning Ullungdo and Dokdo when it adopted the policy to prohibit Koreans to settle there.II. The Period from 1905 to 1945To understand the nature of the territorial dispute over Dokdo during this period, due consideration should be given to the historical relationship between Korea and Japan. Japanese colonization of Korea commenced in 1904, a period which predates Japans official incorporation of Dokdo into Shimane Prefecture.1. Japan Has Not Acquired Dokdo Legally in 1905 In Accordance With International Law.Japan formally annexed Dokdo on February 22, 1905, immediately after the outbreak of the Russo-Japanese War on February 10, 1905. The decision was not published by the Japanese government, but by one of the prefectures, and the prefecture cannot represent for the state in view of international law on the occasion of publishing a newly acquired land. Japan justified this act of annexation on the grounds that it was terra nullius. As an established rule of customary international law, in order for a state to acquire territory by occupation, it must display its sovereignty over a terra nullius in a continuous and peaceful manner with the intention to act sovereign. However, it has been shown from historical evidences that Korea had never abandoned the island, but rather displaying effective control over it. In this connection, it is significant to note that the annexation of Dokdo took place under the circumstances in which Korea was deprived of the right to control its internal as well as foreign affairs. Under the Agreement with Japan, the Korean government was required to consult with the Japanese government prior to the conclusion of all of international agreements with foreign governments and on other important matters of foreign affairs. For this reason, when Japanese officials notified the resident district administrator of Ullungdo that Dokdo had been annexed in 1906, about a year after the actual annexation, it was rather impossible for the Korean government, if it functioned properly at all, to deliver its rightful claim of ownership over Dokdo to Japan. More importantly, considering the fact that Japan had clearly admitted Dokdo as Korean territory in turning down the application of a Japanese willing to develop Matsushima, Japans knowledge of Dokdo could not have been a terra nullius. Hence, it comes to a conclusion that Japans annexation of Dokdo was a violation of customary international law of territory acquisition.III. Legal Instruments Relevant to the Title of Dokdo During the Second World War1. 1943 Cairo DeclarationThe Cairo Declaration issued on December 1, 1943 was perhaps one of the most important legal instruments relating to the status of Dokdo. Its implementation was subsequently incorporated under Article 8 of the 1945 Potsdam Declaration, defining the territory of Japan under the terms of the Instrument of Surrender.2. 1945 Potsdam Declaration and Instrument of SurrenderArticle 8 of the Potsdam Declaration defined the limit of Japans territory as follows:The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the Islands of Honshu, Hokkaido, Shikoku, Kyushu and minor islands as we shall determine.Japans acceptance of the Potsdam declaration on August 14, 19445 containing the surrender terms for Japan also meant accepting the terms of the Cairo Declaration including its territorial provision. Additionally, Japans acceptance of the Instrument of Surrender signed on September 2, 1945, provided that:We hereby undertake for the Emperor, the Japanese Government and their successors to carry out the provisions of the Potsdam Proclamation in good faith, and to issue whatever order and take whatever action may be required by the Supreme Commander for the Allied Powers or by any other designated representative of the Allied Powers for the purpose of giving effect to that Declaration.Thus, the Cairo Declaration became a part of the terms of surrender, thereby entailing a legal obligation on the part of Japan to implement it under international law.3. SCAPIN No.677 dated January 29, 1946The Supreme Commander for the Allied Powers issued a policy directive, SCAPIN No.677 on January 29, 1946. The subject of this directive was to define how the governmental and administrative separation of certain outlying islands from Japans main islands would be carried out. It had explicitly excluded “Utsryo (Ullung) Island, Liancourt Rocks (Take Island) and Quelpart (Saishu or Cheju) Island” from Japan. Two critical points should be noted with SCAPIN No.677. First, Paragraph 5 of the Directive reads that it “shall apply to all future directives, memoranda and orders unless otherwise specified therein”. That is, if any changes or revisions in the definition of Japanese territory in SCAPIN No.677 were to be made, they would be specifically and explicitly stated in a new directive or a revised directive instead of mere silence. Second, Paragraph 6 provides “Nothing in this directive shall be construed as an indication of Allied policy relating to the ultimate determination of the minor islands referred to in Article 8 of the Potsdam Declaration.” If correctly interpreted, this clause should not be read as reversing the Allied policy on the definition of Japanese territory as contained in SCAPIN No.677, but rather as a qualifying clause, reserving the right of Allied Powers to modify or revise SCAP policy in the future, without altering the terms of the Potsdam Declaration.Moreover, SCAPIN, as an agreement between the Allied Powers and Japan, should be given some weight in determining its legal status. The SCAPIN was based upon a special international agreement, which was agreed upon between the Allied Powers and Japan by means of the Cairo Declaration, the Potsdam Declaration, and the Instrument of Surrender. The SCAPIN was the instruction from the Supreme Commander for the Allied Powers, to whom the authority of the Emperor and the Japanese Government to rule the State was subjected for taking steps effectuating the terms of surrender in accordance with the Instrument of Surrender as well as the provisions of United States Initial Post-Surrender Policy for Japan (dated August 29, 1945), and was also the order issued in process of implementing the Potsdam Declaration and the Terms of Japanese Surrender, in accordance with the Basic Initial Post-Surrender Directive to the Supreme Commander for the Occupation and Control of Japan (dated November 3, 1945). Therefore, any violation of the order from the SCAP can be attributed to the violation of Surrender Terms.4. 1952 Peace Treaty with Japan and Its Provisions Relating to the Territory of KoreaJapan signed a Peace Treaty with the Allied Powers on September 8, 1951, which entered into force on April 28, 1952 upon its ratification by Japan. While Korea was not a party to the Peace Treaty with Japan, it became a beneficiary by the virtue of Article 21 of the Peace Treaty, which provided:Notwithstanding the provisions of Article 25 of the present Treaty, China shall be entitled to the benefits of Articles 10 and 14(a); and Korea to the benefits of Articles 2, 4, 9, and 12 of the present Treaty.As regards the territorial status of Korea, Article 2(a) provided:Japan, recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.If the argument that since Dokdo was not referred to it in the Peace Treaty, thus reverting to Japan, is to be supported, it would lead to the absurd conclusion that, since none of the outlying islands of Korea are referred to, with the exception of those three islands named under Article 2(a) of the Peace Treaty requiring Japan to renounce its sovereignty, all of Koreas islands, numbering over 3000, would then have similarly reverted to Japan. Furthermore, the validity of the separation of Dokdo by SCAPIN No.677 has been recognized by Japan in accordance with Article 19(d) of the Treaty. The Article 19 states, “Japan recognizes the validity of all acts and omissions done during the period of occupation under or in consequence of Directives of the occupation authorities or authorized by Japanese law at that time and will take no action.”IV. ConclusionSince the conquest of Wusan State by Shilla Dynasty in 512 A.D., Korea has been effectively occupying Dokdo. The Korean government repeatedly affirmed this act, as it has been shown in historical records, and such issuing of Royal Edict No.41 in 1900, a period before Japans annexation of Dokdo, clearly demonstrates Koreas rightful sovereignty over the island. Hence, Dokdo was not a terra nullius. The legal title to Dokdo has been reverted to Korea by various legal instrument and declaration, SCAPIN No.677 in particular, and the Peace Treaty, to certain extent, merely confirmed what has already become an accomplished fact.