This is the 18th in a series of articles examining the Dokdo controversy from a historical, political and legal perspective. - Ed.
(1) The Korea-Japanese Dokdo Disputes
Brief historical facts
Dokdo (Takeshima) is situated in the southwestern part of the Sea of Japan (the East Sea), 47 nautical miles southeast of Korea`s Ulleungdo Island and 86 nautical miles northwest of Japan`s Oki Island. Dokdo consists of two tiny uninhabitable rocky islets with 33 rock formations above water at low ebb surrounding them, and has a combined land area of 1.3 square kilometers. Dokdo is near rich fishing grounds and has served as a fishing strongpoint for harvesting abalone and seaweed, and for hunting seals and sea lions.
Historical facts show that apart from the period when Korea was under Japan`s occupation from 1910-1945, Dokdo had been under the control of successive Korean governments. Korea`s claims are based on discovery and historical jurisdiction. Korea says that Dokdo was discovered by a Korean in 1483, and after that criminals were sent into exile there. Dokdo has been an appendage of Ulleungdo all through the ages. Records from the reign of King Sejong in the 15th Century listed both Ulleungdo and Dokdo as belonging to Uljin County. In 1900, King Kojong issued Royal Decree No. 41, which explicitly designated Dokdo as under the administrative jurisdiction of Gangwon Province.
Japan`s first government reference to Ulleungdo and Dokdo appeared in its 1667 report on an observational trip to Oki Island. The report stated that the two islands are uninhabited and noted that Oki Island "marked the northwestern boundary of Japan," thus acknowledging that Japan did not claim sovereignty over Dokdo and Ullungdo. Japan began to expand its control over Korea after the 1895 Sino-Japanese War. Japan claimed that the features were discovered by a Japanese in 1616. After the 1904 Russo-Japanese War, Japan claimed its sovereignty over Dokdo in January 1905, asserting that it was "terra nullius" (land belonging to no country) and susceptible to annexation. Japanese Shimanae Province issued a notice on Feb. 22, 1905 declaring Takeshima belongs to Shimanae Province.
The Japanese troops entered and were stationed in the Korean territory in the early 20th century. The seas surrounding Dokdo and Ullungdo became a key battleground in the Russo-Japanese War. Japan turned Korea into its "protectorate" after its victory in the war, and Korea was formally incorporated into Japan in 1910. During 1909-1945, Korea was deprived of the right to control its internal and foreign affairs, making Korea unable to protest against Japan`s annexation of Dokdo.
After World War II, the Supreme Commander for the Allied Powers was stationed in Japan and issued a series of instructions. The instruction issued on Jan. 29, 1946 defined the territory over which Japan was to "cease exercising, or attempting to exercise, governmental or administrative authority." Dokdo was one of the islands that were removed from the Japanese control. The instruction issued on Sept. 16, 1947 completed the Allied Powers` act of occupying Dokdo, and designated the islets as a bombing range for the Far East Air Force. Pursuant to this directive, the U.S. military conducted a bombing exercise at Dokdo on June 30, 1948 that caused the death of 16 Koreans and wounded six other Koreans fishing in the area. After the incident, the Korean government immediately took measures to extend its administrative authority to the island. Since then, Dokdo has been under the continuous control of Korea.
Different Positions of Korea and Japan
Korea`s claims of Dokdo are based on:
1. Korea was the first discoverer of Dokdo, and displayed acts of sovereignty in administering it for a long time in history.
2. Dokdo is an appendage of Ullungdo. Geographically, Dokdo is much nearer to Ullungdo than Japan`s Oki Island. Based on the principle of proximity, Dokdo belongs to Ullungdo.
3. The actual control of Dokdo by Korea. Korea has occupied Dokdo since 1948, and has controlled Dokdo more than a half century.
4. Japan`s acquiescence for many times towards Korea`s sovereignty over Dokdo.
5. Japan`s annexation of Dokdo in 1905 is linked with Japan`s military expansionism and its conquest of Korea, which made Korea unable to protest over the annexation.
Japan`s claims of Dokdo are based on:
1. Japan`s annexation of Dokdo into Shimanae Province in 1905 in the name of terra nullius.
2. Japan`s actual control of Dokdo during 1905-1945.
3. Japan`s continual protests over Korea`s occupation of Dokdo in the past more than a half century.
Legal analyses of the sovereignty disputes
1. "terra nullius"
Japan asserts that Dokdo was terra nullius before 1905 when it was incorporated into Shimanae, but this assertion can be fully negated by the acts of sovereignty Korea displayed in history. Since Korean fishermen often landed on Dokdo, how can it be said that it was terra nullius? In judging whether it was terra nullius, the year 1905 is the critical date. Korea`s sovereignty acts on Dokdo before the date are of primary importance. Japan asserts that it "discovered" and "occupied" Dokdo before 1905; however, since Japan says Dokdo was terra nullius before 1905, it shows that Japan acknowledges that its contacts with Dokdo before the date were not enough to establish sovereignty.
2. "Effective Occupation"
The requirements of effective occupation on such remote and uninhabited islets should not be strict. Korean fishermen`s prior irregular landings provide enough evidence as displays of sovereignty and occupation. In the Award on the Case of Eastern Greenland between Denmark and Norway in 1933, the Permanent Court of International Justice noted, "In thinly populated or unsettled countries, tribunals have been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim."
3. "Appendage" or "Dependency"
Dokdo is a dependency of Ullungdo. That the two islands are an entity linked together with geographical proximity is not to be underestimated. In the 1953 Case of Minquiers and Ecrehos between France and the United Kingdom, the International Court of Justice awarded the two islands to the United Kingdom, and an important factor in the court decision was "on the view that the Minquiers group were a `dependency` of the Channel islands (Jersey and Guernsey) and thus should be subject to the same sovereign authority."
4. "Prescription"
Japan holds that its control and usage from 1905-1945 gives it rights to Dokdo. Traditional international law texts list prescription as one of the methods of acquiring territory, but international law no longer recognizes the legitimacy of acquiring territory through force. Prescription needs to be peaceful and uninterrupted, and rests upon the acquiescence of the former sovereign. "This means that protests by the dispossessed sovereign may completely block any prescriptive claim."
On the contrary, Japan has acquiesced repeatedly over the years on Korea`s occupation of Dokdo. For example, on March 29, 1877, Japan`s highest governmental organ, the Dajokan, responding to an inquiry from Shimane Prefecture about whether Ullingdo and Dokdo should be included in a nationwide land survey, instructed the Home Ministry that regarding the two islands, "it is understood that our country has nothing to do with them." Maps published by Japan`s Ministries of the Army and Navy in late 19th century positioned Dokdo outside Japanese territory.
Since the early 1950s of the 20th century Japan began to issue protests over Korea`s possession of Dokdo. However, "from 1957 when the talks were resumed until the signing (of the Korea-Japan Treaty) in 1965, the Takeshima/Dokdo problem was never adopted as an official agenda, to be recorded in the minutes. There is absolutely no direct reference to Takeshima/Dokdo in the various documents of the Korea-Japan Treaty." This has been seen by a lot of people as a waiver by Japan of its claim, leading to the view that Japan is estopped from continuing to raise the claim.
Dokdo`s impacts on the delimitation
Regarding Dokdo`s impacts on the delimitation, Korea holds that Dokdo is entitled to have 12 nautical miles territorial sea, and that in view of the fact that Ullingdo is fully entitled to claim 200 nautical miles EEZ and when Korea`s EEZ is delimited with Ullingdo as the basepoint, Dokdo is naturally included in the Korean side. Japan, on the other hand, asserts that Dokdo should have full effect with 200 nautical miles EEZ; and that Japan`s EEZ should take Dokdo as its basepoint and be delimited between Dokdo and Korea`s Ullingdo.
(2) The Sino-Japanese Diaoyudao Disputes
Brief historical facts
The Diaoyudao (Senkaku) Islands consist of five uninhabited islets and three barren rocks, located approximately 120 nautical miles northeast of Taiwan, 200 nautical miles east of the China mainland coast, and about 200 nautical miles southwest of Okinawa. The total land area is about 7 square kilometers. Diaoyudao itself is the largest of them with an area of 4.319 square kilometers,
Since the mid-16th century, the Diaoyudao Islands have been Chinese territory. The islands were named in Chinese as Diaoyu Dao (Diaoyu Yu, or Tiaoyu Tai) with a literal meaning of "fishing islands (islets)" in the years of Emperor Jaiqing (1522-66) of the Ming Dynasty. They have always appertained to China`s Taiwan, but not to Ryukyu (Liuqiu, or Okinawa). Fishermen from China`s Taiwan and Fukien Province have all along carried out productive activities there.
The extinct Ryukyu Kingdom originally acknowledged allegiance to China, and maintained vassalage successively with China`s Ming and Qing dynasties. Ryukyu`s kings were crowned by the Chinese emperors who used to send their representatives for the coronation ceremonies in Ryukyu. The first Chinese envoy was sent there in 1372. Situated between the Chinese mainland and the Ryukyus, the Diaoyudao Islands provided the Chinese with a convenient landmark for navigation, and were the only way through which the Chinese missions could pass to reach the Ryukyus. A feudal lord from Kagoshima, Shimazu, conquered the Ryukyu Kingdom in 1609 and turned it into a colonial dependency. But all the successive kings of Ryukyu still pledged allegiance to the Chinese emperors and accepted titles from them. To resist harassment by the Japanese, "China`s Ming Dynasty in 1556 appointed Hu Zong Xian commander of the punitive force in charge of military action against the Japanese invaders in the coastal provinces. Diaoyu Dao, Huangwei Dao, Chiwei Dao and other islands were then within the scope of China`s coastal defense."
There were also "two Japanese maps of 1783 and 1785, each specifying the boundary of the Ryukyu Kingdom, though the last one does so only indirectly." The boundary referred to in these records is substantially the same, indicating or implying that the Diaoyudao Islands belong to China.
Japan dethroned the king of the Ryukyus in 1872 (the fifth year of the Meiji Era), reducing him to the status of a feudal lord, and in 1879 Japan annexed the former kingdom as the prefecture of Okinawa. In 1884, Japan alleged that Diaoyu Dao was first discovered by a Ryukyu fisherman named Tatsushior Koga. In 1885, the prefectural government of Okinawa sought the approval of the central government to place Diaoyu Dao and two other islets under its jurisdiction. Upon consultation with the Foreign Ministry, the Home Ministry hesitated to take action and advised postponement of the matter. It was not until Jan. 14, 1895, that the Japanese cabinet granted approval to Okinawa to annex two of the islets. The Japanese cabinet decision of 1895 was closely related to the Sino-Japanese War (July 1894-March 1895), which ended in October 1894 in Japan`s favor. On April 17, 1895, the Treaty of Ma Guan (the Treaty of Shimonoseki ) was signed between China and Japan formally concluding the Sino-Japanese War. By Article 2(b) of the treaty, China ceded to Japan Taiwan (Formosa), "together with all islands pertaining or belonging to the said Island of Formosa" and the Penghu Islands (the Pescadores). Under these circumstances, if China raised an objection to Japan`s occupation of the Diaoyudao Islands, it would have made no sense. Without the Sino-Japanese War, Japan would have been unable to occupy the Diaoyudao Islands.
In 1945 when the World War II came to an end with the defeat of Japan, Japan accepted the following condition set forth in the Cairo Declaration of 1943, "All the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China." On Oct. 26, 1945, China declared Taiwan as its thirty-fifth province.
As for the Ryukyu Islands, which were surrendered to the United States on Sept. 7, 1945, and had since been under military government, a trusteeship system under U.S. control was set up.
It was a mistake from the beginning that the Diaoyudao Islands, which should have been returned to China together with Taiwan, were included in the areas under the U.S. administration. In 1958 China made a declaration about its territorial sea, which made it clear that the provisions about its territorial sea shall apply to all its territories including Taiwan and its surrounding islands.
In the face of the "Protect the Diaoyudaos Movement" emerged in Taiwan, Hong Kong, and in major metropolitan centers of North America as well as a strong claim to the ownership of the islands by Beijing in the late 1960s, the U.S. State Department came out to clarify its stand on the issue on Sept. 10, 1970, saying that any conflicting claims "would be a matter for resolution by the parties concerned." On June 17, 1971, a reversion treaty was signed in Tokyo between Japan and the United States, whereby Okinawa was to be restored to Japan. Since then, there has been a continued tension over the Diaoyudaos.
Different Positions of China and Japan
China`s claims of Diaoyudao are based on:
1. The Diaoyudao islands were discovered and named by China hundreds of years before the Ryukyu fisherman Tatsushiro Koga discovered them in 1884 as was alleged by Japan.
2. The Diaoyudao Islands are situated on the edge of the East China Sea continental shelf, and are an appendage of Taiwan. On the south, they border the Okinawa Trough which plunges to more than 2,000 meters.
3. The fishing grounds around the islands have been regular haunts of Chinese fishermen, who used the islands as storm shelters as well. During those years the islands were fit for nothing but as navigational aids and were used as such. In 1893, Empress Dowager Tsu Shih of the Qing Dynasty issued an imperial edict granting three islets of the Diaoyudao Islands to one of her subjects, Sheng Xuanhuai (Sheng Hsuan Huai) for collecting herbs. This is an official act on China`s side
4. When Taiwan and all the islands appertaining or belonging to it were ceded to Japan in 1895 as a result of China`s defeat in the Sino-Japanese War, the Diaoyudao Islands were undoubtedly included in that part of the Chinese territory so ceded. Japan`s unilateral proclamation of annexation of the Diaoyudaos in 1895 can have no legal effect, since one state cannot unilaterally proclaim sovereignty over the territory of another. From the point of international treaty, as far as China is concerned nothing that happened after 1895 can be considered relevant in undermining China`s long-standing claims.
5. In 1945 when Japan surrendered to the allies, she accepted the term as set forth in the Cairo and Potsdam Declarations regarding the return of the Chinese territories including the Diaoyudao Islands.
As to the San Francisco Treaty and the Okinawa Reversion Treaty, China holds that "The United States government excluded the PRC in calling the San Francisco Conference, which it monopolized, and signed a separate peace treaty with Japan." Thus the treaty was "illegal and null and void." Also, "It is utterly illegal for the U.S. and Japanese governments to include China`s Diaoyudao and other islands in the so-called area of reversion at the Okinawa reversion agreement. Their act cannot in the least alter the sovereignty of the People`s Republic of China over her territory of Diaoyudao and other islands."
Japan`s claims of Diaoyudao are based on:
1. The ownership of the Diaoyudao Islands had not been established by China, or any other state, up until 1894. In other words, they were terra nullius. They were discovered by Ryukyu fisherman Tatsushiro Koga in 1884.
2. The incorporation of the Diaoyudao Islands was unrelated to the successful progress of the war against China, and the Diaoyudao Islands were not included in the Shimonoseki Treaty signed concluding the Sino-Japanese War by which China ceded to Japan Formosa together with all islands pertaining to it.
3. The Diaoyudao Islands were not included in the territories Japan had to give up according to the San Francisco Peace Treaty. When the Ryukyu Islands were placed under the U.S. military administration at the end of the World War II and subsequently under U.S. trusteeship in accordance with the San Francisco Peace Treaty, the Diaoyudao Islands were always included in the Ryukyu Islands. Furthermore, the Okinawa Reversion Treaty also included the Islands in the areas to be restored.
4. "Since 1945 Japan has consistently exerted sovereignty over the Diaoyudaos. All challenges to this sovereignty by China have been countered, as required in international law."
Legal Analyses of the Sovereignty Disputes
1. The Diaoyudao Islands are not terra nullius, and China meets the requirements of "acquisition by discovery." There is no doubt that China discovered the islands hundreds of years before Japan, and displayed official acts by using the islands as navigation markers.
Some people might contradict the principle of "acquisition by discovery" by saying that discoverers only have "inchoate title" and are not qualified to have acquisition. In fact, according to the theory of international law, "In former times, the two conditions of possession and administration, which now make the occupation effective, were not considered necessary for the acquisition of territory through occupation. The taking of possession was frequently in the nature of a mere symbolic act. Later on, a real taking of possession was considered necessary. However, it was not until the 18th century that the writers on the Law of Nations demanded effective occupation, and not until the 19th century that the practice of the States accorded with the postulate." Thus China was qualified to acquire the territory of the Diaoyudao Islands at the time of its discovery, and the conditions of possession and administration were not necessary.
2. Japan`s annexation of the Diaoyudao Islands is closely related to its victory in the Sino-Japanese War and to the usurpation of the Shimonoseki Treaty, and this annexation has no legal effects on sovereignty.
The legal basis of Japan`s annexation of the Diaoyudaos seems to be founded, at least partly, on the Shimonoseki Treaty, stipulating on the cession of Taiwan and islands appertaining to it. "When Japan admitted that the treaties between Japan and China signed before Dec. 9, 1941, were no longer in force, the Shimonoseki Treaty was certainly included in them. Under such circumstances, at least the partial basis for Japan`s annexation of the Diaoyudaos no longer exists."
3. The inclusion of the Diaoyudao Islands in the Okinawa Reversion Treaty signed between Japan and the United States in 1971 cannot be taken as evidence of Japanese sovereignty over the Islands.
Due to the inclusion of the Diaoyudaos into the jurisdiction of the Okinawa Prefecture during Japan`s seizure of Taiwan and the Diaoyudaos, the Diaoyudaos were included in the Ryukyu Islands under U.S. occupation in 1945 based on Japan`s administrative areas. However, this fact cannot be taken to have created any legal grounds related to the ownership of the Islands. The incorporation of the Diaoyudaos into Okinawa "is a domestic act, and cannot restrict China`s rights in recovering lost territory. Otherwise when an aggressor seizes another`s territory and changes its administrative authority, the other side would not be entitled to recover the lost territory. How would this be justified?" Moreover, "All claims by Japan based on the San Francisco Peace Treaty of 1951 and the subsequent Okinawa Reversion Treaty of 1971 could be challenged on the basis of the PRC`s consistent denial of the legality of those treaties and actions taken under those treaties."
The Diaoyudao Islands in fact already separated themselves from Japan`s control after being occupied by the U.S. troops in April 1945. After Japan accepted the Potsdam Proclamation and was committed that confinement of its territory to four big islands and other islets which would be decided by the Allies, the Ryukyus and the Diaoyudao Islands were totally separated from Japan from the point of international law. The so-called "residual sovereignty" Japan had over the Ryukyus and Diaoyudaos as said by the United States and Japan is not tenable legally.
Diaoyudao`s impacts on the delimitation
China holds that the Diaoyudao Islands are small, uninhabited, and cannot sustain economic life of their own, and that they are not entitled to have EEZ and continental shelf. Japan holds that the islands are entitled to have continental shelf and intends to use them as base points for continental shelf claims on the East China Sea.
(3) Similarities and Differences between Dokdo and Diaoyudao
Similarities
1. Dokdo was first discovered by Korea, and Diaoyudao was first discovered by China. They were not terra nullius before the discovery by Japanese asserted by Japan.
2. Dokdo is an appendage of Ullungdo, and Diaoyudao is an appendage of Taiwan. They have been regular haunts of Korean and Chinese fishermen, who used the islands as storm shelters as well.
3. Dokdo was occupied by Japan after the 1905 Russo-Japanese War, and Diaoyudao was occupied by Japan after the 1895 Sino-Japanese War. Japan`s allegation of "prescription" is untenable legally.
4. The sovereignty of Dokdo affects the jurisdiction delimitation between Korea and Japan in the Sea of Japan (East Sea), and the sovereignty of Diaoyudao affects the jurisdiction delimitation between China and Japan in the East China Sea. Japan stands for full effect of EEZ and continental shelf for Dokdo and Diaoyudao, whereas Korea and China stand for no entitlements of EEZ and continental shelf for the two Islands.
Differences
1. Dokdo is under the actual control of Korea, while Diaoyudao is under the actual control of Japan.
2. After Japan accepted the Potsdam Declaration and acknowledged its sovereignty shall be limited to the four big islands and other minor islands as the Allied Powers determine, the instructions issued by the U.S. troops stationed in Japan defined that Dokdo was one of the islands that was removed from Japanese control. Diaoyudao, which should have been returned to China together with Taiwan, was mistakenly included in the Ryukyu areas under the U.S. administration.
3. The different attitude taken by the United States towards Dokdo and Diaoyudao. The two island groups were both under the control of the United States after the World War II. The U.S. forces designated Dokdo as a bombing range for its Far East Air Force, and after the Korean government extended its administrative authority to the island after a bombing incident, the United States did not raise an objection. Yet, in the Okinawa Reversion Treaty the United States handed over to Japan Diaoyudao together with the Ryukyu Islands.
(4) Legal analyses of imperialist and colonialist Acts
1. Japan seized Dokdo and Diaoyudao by force through the 1905 Russo-Japanese War and the 1895 Sino-Japanese War, respectively. This is entirely an imperialist and colonialist act. This contravenes the U.N. Charter and international law. As the Cairo Declaration states, "The Three Great Allies are fighting this war to restrain and punish the aggression of Japan ... Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the World War I in 1914 ... Japan will also be expelled from all other territories which she has taken by violence and greed." The declaration embodies the international justice, and its spirit is applicable also to those islands Japan took by violence and greed before 1914. Undoubtedly, Japan took Dokdo and Diaoyudao by violence and greed. Besides, Japan now wants to take the Ryukyu Islands as the main basis to divide the East China Sea with China; actually Japan`s annexation and occupation of the Ryukyu Islands itself also lacks legal basis.
2. Traditional international law states, "Territory ... may be acquired by discovery, occupation, accretion, cession, and conquest or subjugation." One can clearly see that this stipulation fully reflects the imperialist and colonialist flavors and serves the interests of imperialists and colonialists. It is the jungle law. We all know that international law was gradually developed in the 17th century. "The general understanding of territorial acquisition and loss in international law has been developed through decisions and awards by international judicial and arbitral bodies, and these cases basically involve either colonizing countries or colonized/newly independent countries"; The present Western-centric international law on territorial acquisition needs to be modified now.
3. The post-World War II territorial dispositions were mainly arranged by the United States and other Western powers. They mainly stemmed from their own geopolitical interests without taking the interests of regional countries into consideration. The roots of many territorial disputes in the region lie in them. Moreover, the legitimacy of the San Francisco Peace Treaty itself is questionable. It is a unilateral peace treaty initiated and controlled by the United States, without the signature of the Soviet Union and without the participation of China, the two big contributors in the World War II. The Potsdam Proclamation issued by the United States, Great Britain, and China stipulates, "Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine." "We" here refers to the United States, Great Britain, and China, but the San Francisco Peace Treaty excludes China. It should be fairly said that the territorial arrangements in East Asia by the United States and other Western powers contravenes the Potsdam Proclamation.
4. The U.S. administration has defended the Western colonialist regime. While adhering to the traditional international law, it adopts a practical and double standard in safeguarding its own interests. On explaining the reasons for the United States` continued occupation of the Ryukyus, Diaoyudaos and other islands at the San Francisco Peace Treaty conference, John Foster Dulles said that "This does not deny Japan`s `residual sovereignty`." The term "residual sovereignty" first used by Dulles evidently was for protecting Japan`s interests regarding territories which Japan seized by force before. The concept of "residual sovereignty.` is totally untenable in international law. The U.S. stand that "any conflicting claims to the (Senkaku) islands are a matter for resolution by the parties concerned" is more or less paying lip service.
By Ji Guoxing
[출처 : 코리아헤럴드]
