Claims to Territory Between Japan and Korea in International Law

By Pilkyu Kim

The period following World War II has witnessed numerous international territorial disputes, particularly in Asia and Africa. Even as we enter the twenty-first century, a large number of these territorial disputes over sovereignty remain unresolved and continue to pose significant diplomatic barriers for the parties involved. Clive Schofield, the author of Global Boundaries, identified10 disputed island hot spots around the globe, including the Falkland Islands, Dokdo (Takeshima), Diaoyu (Senkaku), and the Kurile and Spratly Islands, among others.
Turning our attention to Northeast Asia, one territorial dispute of historic significance concerns a set of small rocky islets known as Dokdo in Korean or Takeshima in Japanese. Upon closer examination, these small islets represent more than just a dispute over territorial boundaries, but a historic source of tension and sensitivity that can be traced back to the period of Japanese imperialist aggression in Korea during the first half of the twentieth century. Today, this controversial territorial dispute remains as a critical obstacle to the amicable relations between Korea and Japan. Much of the problem appears to stem from the inability of both countries to reach a consensus on two interconnected issues: historical misperceptions and divergent legal interpretations over territorial claims to sovereignty. Bearing these two issues in mind, this book seeks to offer a fresh examination of the major historical and legal arguments at both sides of the Dokdo conflict from the perspective of international law. Through this approach, it is hoped this book will not only contribute to a better understanding of the facts and truth behind the Dokdo dispute, but also generate further discussion on how Korea and Japan might advance a productive dialog to achieve a meaningful resolution to this longstanding problem.

• Language: English
• Publisher: Xlibris US
• Release date: Mar 27, 2014
• ISBN: 9781493182169

Pilkyu Kim

Dr. Pilkyu Kim earned his Ph.D. in international law and organization at the University of Arizona. He has taught over 35 years at the University of Arizona, Hope College in Michigan, and the University of Maryland University College, stateside and overseas. Dr. Kim recently retired from his position as Director and Professor of Politics and Government at University of Maryland University College. His other areas of interest include American and comparative government, foreign policy, and Asian studies. He has presented extensively on the topic of Korea-Japan relations, especially the Dokdo/Takeshima territorial dispute, at academic conferences around the world. He has also contributed numerous articles on these issues to both the Korean and American media.

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Copyright © 2014 by Pilkyu Kim.

Library of Congress Control Number:         2014904258

ISBN:                  Hardcover                        978-1-4931-8217-6

                            Softcover                          978-1-4931-8215-2

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Table Of Contents

Preface

Foreword

Acknowledgment

Chapter 1:   Introduction to the Problem

Chapter 2:   Value of Dokdo

Chapter 3:   Sovereignty over Dokdo: Historical Background

Chapter 4:   Legal Analysis of Dokdo

The Japanese Position

The Korean Position

Analysis of Rival Claims

Effective Occupation

Abandonment of Sovereignty

The Status of Japanese Incorporation

Effect of the Treaty

The Wartime Territorial Declarations and Intent of the Parties

Korean Independence and Restoration of Its Sovereignty

The Effects of the Treaty on Korea as a Third State

Why Trauvaux Preparatoires?

Chapter 5:   Summary And Conclusion

Epilogue

Selected Bibliography

I dedicate this book to my wife and daughter.

Preface

International territorial contests involving conflicting legal claims have become a hallmark of twentieth-century international relations. Even as we enter the twenty-first century, a large number of these disputes over territorial sovereignty remain unresolved and continue to pose significant diplomatic barriers for the parties involved. Clive Schofield, the author of Global Boundaries, has identified ten disputed island hot spots around the globe, among which are the Falkland Islands, Dokdo (Takeshima), Diaoyu (Senkaku), and the Kurile and Spratly Islands.¹

The focus of this study is a territorial dispute of historic significance in Northeast Asia that concerns a set of small rocky islets known as Dokdo in Korean or Takeshima in Japanese. Upon closer examination, the small islets represent more than a standard dispute over territorial boundaries. The islets and the controversy surrounding them represent sources of historic tension and sensitivity that can be traced back to the Japanese occupation of Korea in the first half of the twentieth century. Even today, the Dokdo dispute remains a critical obstacle to an amicable relationship between Korea and Japan. Much of the problem appears to stem from the inability of both countries to reach a consensus on two interconnected issues: historical misperceptions and divergent legal interpretations over territorial claims to sovereignty.

The claim to sovereignty over the islets has often been linked to other long-standing historical and political disputes between Korea and Japan. Experts and scholars on Dokdo have tried to draw attention to the issue through their research, yet it remains somewhat unknown to and overlooked by those outside Northeast Asia. While a number of books and articles in Japanese and Korean have been written on the Dokdo conflict, its publications in English are scarce and rely heavily upon secondary works that have been translated into English. What is more, a dominant characteristic of many non-English works on Dokdo is their tendency to reflect the nationalistic biases of their authors.² While such attributes alone do not diminish completely the value or importance of these contributions, such works typically neglect or overlook important legal aspects of the conflict that might contribute to a fuller and clearer understanding of the territorial sovereignty over Dokdo. Even when legal issues are examined, the treatment is cursory at best and lacks sufficient critical analysis of legal principles and facts. For instance, many studies do not distinguish between the issues on territorial sovereignty and laws of the sea involving Dokdo. Alternatively, in the rare case that legal issues of the conflict are covered in greater detail, historical context is often ignored. An up-to-date English-language resource that treats all aspects of the Dokdo problem, past and present, is long overdue.

This book seeks to offer a balanced examination on the major historical and legal arguments on both sides of the Dokdo conflict from the perspective of international law. It is hoped that this book, as the latest addition to a growing body of work on Dokdo, will generate greater interest on the topic among the scholars and enthusiasts of Northeast Asia while offering new insight and clarity on a regional issue that will likely remain relevant for years to come.

Review of Literature

One would expect any authoritative study on Dokdo to entail an examination of the earliest records that document the discovery of the island, a critical event on which both Korea and Japan base their rival claims. However, the lack of extant historical sources on Dokdo prior to the twelfth century has presented difficulties for scholars and researchers interested in the topic. Moreover, interest in the earliest period of the islet’s documented history has received little attention until recent years. The author therefore attempts to offset this deficiency by utilizing the earliest extant historical texts, such as the twelfth-century Samguk Sagi (History of the three kingdoms) (1145) and the fifteenth-century Tongguk yŏji sŭngnam (An augmented geographical survey of Korea) (1481). Both texts are recognized as official sources by the scholars of East Asia. In addition, recently discovered writings on Ullŭngdo and Dokdo by the Chosŏn scholar Pak Se dang (1659) and by Chang Han-sang, military inspector of Kangwŏn Province (1694), supplement available official Korean records and histories. These additional sources, discovered in 1977 as the result of a research project on Ullŭngdo and Dokdo conducted by the Kuksa pyŏnchan wiwonhoe (National Institute of Korean History), provide indispensable historical information on Dokdo and Ullŭngdo.

While the conflict over Dokdo has been debated mainly at the governmental level, many official documents have yet to be released to the general public. In recent years, however, numerous public and private sources—such as records, memoranda, statements, and pamphlets—that purport to describe the status of Dokdo have been located. The governments of Japan and Korea have exchanged over fifty-six formal notes on Dokdo, which, along with other official documents, constitute the primary sources for this research. In addition, many Korean and Japanese secondary works essential to understand this problem have been used along with other pertinent studies in English and French. Every attempt has been made to update existing studies and to incorporate relevant materials into this analysis.

A substantial amount of research was carried out in Japanese and Korean universities and government libraries and in the archives of the Dokdo Museum in Ullŭngdo, South Korea. For official US records, research was undertaken at the Library of Congress (LOC) and the National Archives and Records Administration (NARA).

Scope and Organization of the Study

The objectives of this book are, first, to trace the historical antecedents of the present Dokdo problem; then to examine selected cases, disputes, and situations in international law that may be applicable to this case; and finally, to evaluate the validity of the respective claims of Korea and Japan in terms of current international laws. Ultimately, this study attempts to provide insights into the Dokdo dispute and serve as the basis for future inquiry and study.

To ascertain the origin, development, and environment of the conflict, it seems appropriate to analyze this dispute within the context of geography and history, relying primarily on information from both Korean and Japanese sources. Chapter 2 assesses the value of Dokdo, past and present, and provides readers with an overview of the geographic characteristics and the varied ecosystem of the islets. Chapter 3 analyzes the major historical disputes between Japan and Korea over Dokdo. Since this book is intended primarily as a study of the legal aspects of the Dokdo controversy, it does not cover historical issues that go beyond the scope of the study.

Chapter 4 analyzes precedents in terms of the territorial law of nations, particularly the principle of effective occupation and the status of uninhabited lands. Primary emphasis is placed on a critical analysis of the legal status of the claims put forth both by the Korean and Japanese governments.

Finally, chapter 5 attempts to clarify lingering questions on legal status and draw conclusions about the sovereignty of this island. No attempt is made to establish a clear-cut boundary between the political and legal questions that remain beyond the scope of this book. In addition, this chapter addresses how Korea and Japan might, at long last, work together to achieve a productive dialogue and a meaningful resolution to this longstanding problem.

Foreword

Every so often there appears a book on a critical issue that represents a professional lifetime of reflection. This is one such book. Scholars and governments alike have Professor Pilkyu Kim to thank for it. Professor Kim began and nearly finished this manuscript after his retirement from the University of Maryland University College. With his death in December, 2010, Dr. Bonnie Kim, his daughter, an expert in East Asian history, ensured its publication.

Professor Kim had unusual advantages and was well prepared to write this book. As a native Korean (later naturalized American), he earned his B.A. at the Hankuk University of Foreign Affairs in Seoul, studied for a year at the Kansai University of Foreign Affairs in Osaka and later earned his Ph.D. in Political Science and Oriental Studies at the University of Arizona. He was fluent in English, Japanese and Korean and had direct linguistic access to scholarly work and official documents in each of those languages.

He developed a global network of scholarly relationships that supported him throughout his professional life. He was a visiting professor for a year at Yanbian University in the People’s Republic of China, served for 11 years on the Overseas Policy Advisory Council on the Peaceful Unification of Korea, was an affiliate scholar of the