Dokdo: Historical Appraisal and International Justice

Dokdo

Publications on Ocean Development Volume 67 A Series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development

General Editors: Vaughan Lowe and Robin Churchill

Dokdo Historical Appraisal and International Justice

Edited by

Seokwoo Lee and Hee Eun Lee

LEIDEN • BOSTON 2011

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Dokdo : historical appraisal and international justice / edited by Seokwoo Lee and Hee Eun Lee. p. cm. — (Publications on ocean development, 0924-1922 ; v. 67) Includes index. ISBN 978-90-04-19338-3 (hardback : alk. paper) 1. Tok Island (Korea)—International status. 2. Korea (South)—Foreign relations—Japan. 3. Japan—Foreign relations—Korea (South) I. Yi, Sog-u, 1967– II. Lee, Hee Eun. KZ3881.T65D65 2011 341.4’2—dc22 2010045496

ISSN: 0924-1922 ISBN: 978 90 04 19338 3 Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

To Yoon, my best friend and loving wife – Seokwoo Lee

To Grace, my best friend and loving wife, and to our two boys, Jae Deok and Jae Huel – Hee Eun Lee

Contents Preface ................................................................................................... Map ....................................................................................................... Acknowledgements .................................................................................

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Chapter I. Overview – “Dokdo: Historical Appraisal and International Justice” ............................................................................................... Seokwoo Lee and Hee Eun Lee

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Chapter II. Legalism, Geopolitics, and Morality: Perspectives from Law and History on War Guilt in Relation to the Dokdo Island Controversy ........................................................................................ Harry N. Scheiber Chapter III. Addressing and Resolving the Dokdo Matter ...................... Jon M. Van Dyke Chapter IV. Territorial Disputes in East Asia, the San Francisco Peace Treaty of 1951, and the Legacy of U.S. Security Interests in East Asia ............................................................................................. Seokwoo Lee Chapter V. A Possible Practical Solution for the Dispute over the Dokdo/ Takeshima Islands from the Perspective of the Law of the Sea ............ Atsuko Kanehara Chapter VI. Dokdo, Colonialism, and International Law: Lessons from the Decision of the ICJ in the Land and Maritime Dispute between Cameroon and Nigeria ........................................................................ Dakas C.J. Dakas

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Chapter VII. Problems of Contiguity, Natural Unity, and Ancient Original Title to Islands with Special Reference to Dokdo .................. Kaiyan Homi Kaikobad

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Chapter VIII. An American Assessment of South Korea’s Policy Options Towards Its Claim to Dokdo and Its Relations with Japan ................. Larry A. Niksch

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Chapter IX. Similarities and Differences between the Korean-Japanese Dokdo Disputes and the Sino-Japanese Diaoyudao Disputes ............. Ji Guoxing

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Chapter X. The Dokdo Dispute in Perspective and Avenues for Resolution .......................................................................................... Leszek Buszynski

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Chapter XI. Politics and Economics in the Resolution/Non-Resolution of the East China Sea/Diaoyu Islands and Northern Territories Issues: Feats, Failures, and Futures ................................................................. Jean-Marc F. Blanchard Index Terms ...........................................................................................

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Preface This book is based on selected papers from two international conferences on Dokdo. Dokdo is the rocky islet in the East Sea (Sea of Japan) which is currently disputed between Korea and Japan as both claim sovereignty over Dokdo. It is 87.4 kilometers (km) from the Korean island of Ulleungdo and 157 km from the Oki Islands of Japan and located 215 km from the Korean mainland and 211 km from the Japanese main island, Honshu at N 37°14”, E 131°52”. Formed from volcanic activity, Dokdo is comprised of two large rocky masses that are referred to by Korea as Dongdo (East Island) and Seodo (West Island) which are surrounded by thirty-two smaller outcroppings having a total area of 180,902 m2. As Director of the Inha International Ocean Law Centre, Inha University (Incheon, Korea), Professor Seokwoo Lee undertook two international conferences on Dokdo. The first was held in Seoul in 2007; and a second in Seoul in 2008. The title of the 2007 conference was “Towards a Framework for the Resolution of the Territorial Dispute between Korea and Japan over Dokdo,” and the 2008 conference was entitled “Dokdo: Historical Appraisal and International Justice.” The title of this book was named after the 2008 conference. Professor Seokwoo Lee and Professor Hee Eun Lee of Handong International Law School (Pohang, Korea) co-edited this volume.

Territorial Disputes over Islands in East Asia

Acknowledgements The editors would like to express their gratitude to Clive Schofield, Director of Research and QEII Research Fellow at the Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong (Australia) and Andi Arsana, Lecturer and Researcher in the Department of Geodetic Engineering, Gadjah Mada University (Indonesia) for their work in producing the map that appears in this volume. The editors would also like to thank Hyunjoeng Chun (Class of 2009) along with Euna Lee (Class of 2010) and Jaepyung Park (Class of 2010) of Handong International Law School for their valuable assistance with editing of the papers in preparation for the publication of this volume. During the editing of this volume, Professor Kaiyan Homi Kaikobad of Brunel University passed away on July 1, 2010. Professor Kaikobad, a contributor to this book, was a renowned expert on territorial and boundary disputes. He will be remembered as a dear friend and mentor who devoted his life to trying to resolve difficult international conflicts. He will be dearly missed.

Chapter I Overview – “Dokdo: Historical Appraisal and International Justice” Seokwoo Lee* and Hee Eun Lee** Since the conclusion of World War II, the legacy of Japanese militarism and colonialism in East Asia has left many unresolved conflicts, dividing parts of the region. There are currently three territorial disputes over islands in East Asia in which Japan is a disputant: against Russia, Japan continues to claim sovereignty over the Kurile Islands (Northern Territories); against China and Taiwan over the Senkaku Islands (Diaoyudao); and against Korea over Dokdo (Takeshima).1 Deep-rooted historical bitterness between Japan and the other disputants impedes the resolution of these territorial disputes and still deeply influences international relations in this region. The ongoing territorial disputes in East Asia, in particular over Dokdo, involve intertwined political and legal issues. Though it is not always easy to dichotomize politics and law in specific territorial disputes, it is also not impossible to reach a conclusion as to the strength of the competing claims to disputed territories based on international legal principles and sources. As to Dokdo, Japan specifically affirmed its claim to Dokdo by officially incorporating it into Shimane Prefecture in 1905. Japan opines that Dokdo was terra nullius in 1905 and therefore subject to occupation. Korea asserts that historical documentation proves that Dokdo belonged to Korea prior to Japan’s alleged 1905 incorporation, thereby attacking Japan’s contentions that

* Professor of International Law and Director of the Inha International Ocean Law Centre, Inha University.

** Associate Dean and Associate Professor of Law, Handong International Law School. 1

The names of these territories are also subject to dispute: Russia refers to the islands as the “Kurile Islands” while Japan denotes the area as the “Northern Territories;” China and Taiwan use the terms “Diaoyudao,” “Diaoyutai,” or “Diaoyu Islands” while Japan refers to it as the “Senkaku Islands;” and finally, “Dokdo” is the Korean designation while Japan refers to it as “Takeshima”. Dokdo is also referred to by some as the “Liancourt Rocks”. The editors of this volume acknowledge that each chapter author either uses both names designated by each country or uses only one designation.

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the Liancourt Rocks were terra nullius. Korea regained its independence in the aftermath of the Second World War, and Japan specifically renounced its claims to several named islands in the East Sea (Sea of Japan) when it signed the San Francisco Peace Treaty. However, the treaty did not specifically address the status of Dokdo. Thus, for almost sixty years the two sides have exchanged unilateral declarations of sovereignty over the tiny islands. The determination of Dokdo’s ownership is, however, not the sole purpose of this book. Beyond the question of ownership of Dokdo, this book will provide a broad framework for better appreciation and resolution of the territorial disputes that bedevil the East Asian region, and the bilateral relationship between the claimants in particular. Thus, a need has long been felt among international lawyers, historians, and policymakers in Korea, Japan, and in Asia and beyond, for a resolution of the territorial dispute between Korea and Japan over Dokdo. In such circumstances, it is imperative to clarify the relevant historical facts and develop new norms to address the very nature of the Dokdo dispute. This will be critical for formulating a broader framework for the appreciation of the nature of the territorial dispute over Dokdo. For this purpose, it is well worth noting that there is no denying the undeniable fact that the legacy of the past looms large in our thinking when we look back over the history of the territorial dispute over Dokdo. A few points will illustrate these crucial factors: • From Korea’s perspective, as a past victim of Japanese aggression, the Japanese claim to a right to Dokdo can be construed as its intention to invade or to carry out a second act of aggression. • During the Russo-Japanese War, Japan incorporated Dokdo into its own territory. Indeed, it denied Dokdo to Korea with the use of its military power. • Korea has a tremendous amount of evidence that Korea had occupied and effectively controlled Dokdo historically. However, what is more important is the historical fact that Japan incorporated Dokdo into its territory for military purposes. • Considering the provocative nature of a series of acts by Japan, including homage at the Yasukuni Shrine, distortion of history textbooks and the Dokdo issue, these acts project a nationalistic tone of the Japanese government and its efforts to justify past aggression. It can also be understood from a historical perspective as a challenge to the future order of Northeast Asia. Recently, groups of scholars have proposed ideas to resolve the Dokdo issue based on their understanding of the nature of the dispute. These proposals can be categorized into the following four approaches: first, a practical approach which includes the separation of the sovereignty issue from the allocation of maritime zones and other salient issues; second, an approach which looks to

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Japanese territorial disputes involving the Kurile and Senkaku Islands to address the Dokdo issue; third, an approach which emphasizes the U.S. role for resolving the Dokdo issue; and fourth, an approach which stresses the historical background of Japanese colonialism over Korea and its linkage with the Dokdo issue. Among the abovementioned approaches, the papers presented in this book are based on the first three approaches. However, the approach that emphasizes the historical background of Japanese colonialism over Korea and its connection with the Dokdo issue is not fully reflected here. This largely comes from learned Japanese scholars who have addressed different aspects of the historical legacy of Japanese colonialization on the Dokdo dispute. Given their importance, we summarize them below. Japan’s colonial ambitions have shaped these scholars’ perspectives on how to characterize Japan’s actions regarding Dokdo in 1905. There has been a view expressed in Japan that the acquisition of Dokdo by the Meiji government as it was incorporated into Shimane Prefecture was for military reasons as a precursor to Japan’s eventual annexation of the Korean peninsula.2 After Dokdo was declared a part of Japanese territory in February of 1905, later that same year, Korea was forced by Japan to become its protectorate which was followed by annexation five years later.3 From a Korean point of view, it is quite reasonable see a chain of events beginning with Japan’s acquisition of Dokdo that led to a period of great suffering for Koreans at the hands of Japan. This view has led to an understanding in Japan that from Korea’s perspective, the taking of Dokdo was the first step towards Japanese colonialization and thus, a potent symbol of Japan’s conquest of the Korean peninsula.4 Given this perspective, these Japanese scholars have put forward calls for a more pragmatic approach on the part of the Japanese government to resolve the Dokdo dispute. They view Japan’s claims over Dokdo as an impediment for Japan in attaining a number of important foreign policy objectives related to North Korea, including resolving the issue of Japanese citizens who were abducted by North Korea in the 1970s and 1980s, North Korea’s nuclear program, and fishing rights around Dokdo.5 They see a need for cooperation with Seoul as more important than pursuing Dokdo, which only provoked South Korea to the detriment of Japanese interests. Others want both countries to

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Yoshibumi Wakamiya, Who is smiling at the latest row?, The Asahi Shimbun (July 30, 2008). Yoshibumi Wakamiya, Dare we dream of ‘friendship island?, The Asahi Shimbun (April 2–3, 2005). Kentaro Serita, The Takeshima Dispute: A Radical Proposal, 34 Japan Echo 32, 36 (2007); Wakamiya, supra note 2. Id.

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engage in dialogue as opposed to taking a confrontational stance on the question of sovereignty.6 There has also been a call for Japan to withdraw its claim to Dokdo and recognize Korean sovereignty “in the spirit of repentance” for Japan’s colonial rule over Korea.7 These scholars generally accept the Korean view that Dokdo was wrongfully taken by Japan in 1905. Considering the historical evidence of Korea’s sovereignty against the official Japanese position that Dokdo was legally acquired by balancing the historical and legal arguments taken by both countries on the question of sovereignty over Dokdo, these scholars seek to shift the nature of the dispute from the existing entrenched historical and legal arguments to a simpler, present-day calculation of cost and benefit. By doing so, the conclusion reached by these scholars is that the dispute over Dokdo is not worth the cost to Japan. The insights offered by Japanese scholars on the Dokdo dispute add greatly to the other approaches taken by the authors below to understand some of complexities and challenges of this particularly vexing territorial dispute in East Asia. The second chapter is by Harry N. Scheiber of the University of California, Berkeley, School of Law who offers a moral perspective on the Dokdo issue that considers both law and the history of Japan’s unjust treatment of Korea and the Korean people during the first half of the twentieth century. He notes that this treatment began with annexation and subsequent colonial rule and includes Japan’s actions during World War II and the crimes against human rights perpetuated by Japan during the war. From this perspective, Professor Scheiber evaluates two key elements of Japan’s claim to Dokdo. The first is the context and timing of Japan’s seizure of Dokdo in 1904 and its eventual acquisition, which he concludes, cannot be valid since Japan’s conquest of Korea precluded any effective response from Korea. He then goes on to discuss the second element, which he identifies as Japan’s literalist interpretation of the 1951 San Francisco Peace Treaty. He argues that Japan’s positions in arguing that the Treaty omitted Dokdo from among the territories it had to give up and the Japanese view that any claims of reparations from those who suffered under Japanese rule were waived by the Treaty must be understood in light of the United States government’s interest in securing an early conclusion to U.S. occupation of Japan and Allied backing of a peace treaty that would be generous to Japan along with the U.S. policies in the region spurred on by the Korean War and the Cold War. In his view, the Treaty should be viewed not as providing the highest level of immunity as Japan maintains, but setting forth the minimum set of obligations Japan owes 6

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Shinichi Arai, We Need Solutions by Dialogue, Keynote Speech at International Conference: Dokdo: Historical Appraisal and International Justice, Seoul, Korea (Nov. 18, 2008). Haruki Wada, Let’s Resolve the Dokdo Issue, Hankyoreh (March 21, 2005).

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to Korea. In his conclusion, Professor Scheiber offers a compelling scenario whereby Japan would come to terms with its past by abandoning its claim to Dokdo in connection with a formal apology and restitution to those it harmed while Korea would respond by agreeing to limit its claim to a territorial sea around Dokdo and compromise on fisheries and other resources in the Exclusive Economic Zone (EEZ). In chapter III, Professor Jon M. Van Dyke of the University of Hawaii School of Law assesses Korea’s claim to Dokdo, applying the international legal standards utilized by international tribunals. He examines the issue of delimiting the maritime boundary between Korea and Japan in relation to Dokdo and offers a possible solution for Korea to resolve the dispute. He argues that Korea has a stronger claim than Japan in light of: (1) the acts of sovereignty Korea exercised over Dokdo prior to 1905; (2) the acknowledgement by the Japanese in the late 19th century that Japan did not possess Dokdo; (3) the recognition from Japan that it did not have sovereignty over Dokdo prior to 1905 as it deemed Dokdo to be “terra nullius;” and (4) Korea’s continuous occupation of Dokdo since the early 1950s. He adds that Korea’s claim is bolstered by Dokdo’s geographical proximity to the Korea’s Ulleungdo (88 km) versus its distance to Oki Island, the nearest Japanese territory (158 km). Notwithstanding the strength of Korea’s position on the issue of sovereignty over Dokdo, Professor Van Dyke explains that Dokdo should not be used as a point of reference in delimiting the maritime boundary between the two countries. Applying the United Nations Law of the Sea Convention (UNCLOS) and examples from state practice, he believes that Dokdo should be viewed as a “rock” that cannot generate an exclusive economic zone. He adds that even if Dokdo is determined to be an “island” rather than a “rock,” an international tribunal tasked to deal with the issue of delimitation would not give it much weight because of its small size and relative insignificance. A review of cases from arbitral tribunals and the International Court of Justice (ICJ) reveals that islands are not given much consideration in deciding maritime delimitation. Thus, because Dokdo is small, essentially uninhabitable, and has limited economic value, Professor Van Dyke concludes that the boundary should be established equidistant between the two countries, more specifically, at the median line between Korea’s Ulleungdo and Japan’s Oki Island which would put Dokdo on the Korean side of the boundary. Even though international law supports the position that Dokdo is Korean territory, a speedier resolution of the dispute with Japan will require Korea to present a multifaceted deal in which Japan could be viewed to have prevailed on some issues while having given in on other issues such as Dokdo’s sovereignty. In Chapter IV, Professor Seokwoo Lee of Inha University Law School provides an analysis of the effects of the San Francisco Peace Treaty of 1951 on three current territorial disputes over islands in East Asia in which Japan is a

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disputant: against Russia, over the Kurile Islands; against China and Taiwan, over the Senkaku Islands; and against Korea, over the Liancourt Rocks/Dokdo. He observes that the Treaty failed to define the “Kurile Islands,” and further to specify the entity in whose favor Japan had renounced sovereignty over the disputed islands. Additionally, specific mention of the Senkaku Islands and the Liancourt Rocks did not appear in the territorial clauses of the San Francisco Peace Treaty. As a result, while all the interested parties marshal support for their cases from historical sources, Professor Lee points out that it cannot be denied that much of the uncertainty surrounding the territorial demarcation is a by-product of immediate post-World War II boundary decisions and territorial dispositions. He contends that the territorial dispositions established by the Treaty were in large part a reflection of the Allied Powers’ policy in the post-World War II territorial arrangements in East Asia. He explains that the Allied Powers were concerned more about their own geo-political and strategic interests than the interests of the local rival claimants in East Asia and their claims to title over specific territories: these neglected issues resulted in outcomes perpetuating the current territorial disputes in the region. Professor Lee goes on to provide a careful examination of the drafts of the Treaty that defined the Treaty’s final terms regarding these disputed islands in East Asia. In his view, the territorial clause regarding the Kurile Islands can be interpreted as follows: first, the Soviet Union is the only recipient of the Kurile Islands envisaged by the Allied Powers; second, there were no agreed definitions of the “Kurile Islands” among the Allied Powers; and third, there are strong indications that the Allied Powers preferred not to resolve the matter of the ultimate disposition of the Kurile Islands in the Treaty. Moreover, he adds that the Senkaku Islands were not included as either Chinese and Taiwanese or Japanese territory by the drafters of the San Francisco Peace Treaty, and Article 3 of the Treaty did not, to the point of specificity, define the territories that were placed within the area of the United Nations trusteeship with the United States as the sole administering authority. Regarding the Liancourt Rocks/Dokdo, he posits that the territorial clause could indicate that the San Francisco Peace Treaty assigns the Liancourt Rocks to Japan. However, Professor Lee concludes that due to the contradictory nature of the various drafts of the treaty, Korea may still be free to establish that the “Korea” renounced by the Japanese in the Treaty included the Liancourt Rocks/Dokdo. Professor Atsuko Kanehara of Sophia University follows in Chapter V with a proposal to resolve the dispute over Dokdo/Takeshima taken from the perspective of the law of the sea. She points out that although the two nations have competing claims to the Dokdo/Takeshima Islands, their ability to resolve past instances of conflict arising from the dispute over the boundary of each country’s EEZ shows the potential for a practical solution utilizing UNCLOS. She points to several areas where the two sides have demonstrated cooperation

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even when they have clashed as to where marine scientific research and fishing could be conducted in overlapping sea areas claimed by each side as part of their respective EEZs. Korea and Japan have agreements in place that delimit the continental shelf and that deal with fishing rights for each side as well as have a structure for joint development of resources on the sea bed. Professor Kanehara notes that although these arrangements avoided dealing with a final settlement on the delimitation of their EEZs, they can be counted as successes in maintaining cooperative and friendly relations between the two countries. As a result, she observes that the ability of Korea and Japan to meet their objectives on important areas such as delimiting the continental shelf and access to fishery resources, while not directly addressing the issue of sovereignty over the Dokdo/Takeshima Islands, reveals that insisting on ownership over Dokdo is not in the interest of the parties. If that is the case, she asks what really are the parties’ interests in claiming sovereignty over the islands? Professor Dakas C.J. Dakas of the University of Jos analyzes and critiques the ICJ’s ruling in the case that decided sovereignty over the Bakassi Peninsula between Cameroon and Nigeria and puts forward the implications of the decision for the Dokdo issue in Chapter VI. He observes that the Court’s reasoning justifying its award of sovereignty of the Bakasssi Peninsula to Cameroon was based in large part on the 1913 Anglo-German Agreement in which Britain purportedly ceded the Bakassi Peninsula to Germany. Cameroon argued that the initial British cession of the Bakassi Peninsula to Germany was then renounced in favor of the French from whom Cameroon maintained it inherited. However, the Court’s decision ignored the central issue in the case: the colonial responsibility of Great Britain to the people of Bakassi and Nigeria. An earlier pact was made in 1884 between Great Britain and the Kings and Chiefs of Old Calabar under which Great Britain undertook to extend its protection to these Kings and Chiefs, creating a protectorate that included the Bakassi Peninsula. Yet, according to Professor Dakas, the Court effectively disregarded the clear terms of this treaty and transformed what was supposed to be a protectorate that retains sovereignty over territory into that of a colony that has none. The Court’s treatment of the colonial question as it relates to the Bakassi territorial dispute shows that the legacy of colonialism continues on in the form of Eurocentric “international” law. According to Professor Dakas, a number of lessons can be drawn from the Bakassi case that are relevant for the Dokdo issue. First, he notes that the occupation of territory as a mode of European territorial acquisition in Africa, though seemingly neutral, parallels Japan’s use of occupation as a means of taking Dokdo. Second, he observes that Korea, as a colonized state, was in no position to contribute to the content of international law, much like the African states that made no contribution to the legal rules that were applied at

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that time. Third, he notes that the legal norms justifying territorial acquisition were developed during colonialism and calls on the need to rid international law of this remnant of the colonial period. Next, Professor Dakas points out that because of the International Court of Justice’s decision in the Bakassi case, states like Korea are justified in inclining to view that the Court will not hold Japan accountable for its “imperial aggression.” Lastly, he implores vigilance so that there will not be another decision like Bakassi. In Chapter VII, Professor Kaiyan Kaikobad of Brunel University presents an extensive analysis of the role that geographical contiguity and the related concepts of adjacency, proximity, and distance apply to the issue of title to Dokdo. He notes that when dealing with land territory, there is no rule of law that permits a state to make a claim to an area of land wholly on the basis of contiguity. However, with respect to maritime territory, he observes that there are four relevant rules that allow a state to make ownership claims employing contiguity and its related principles. The first such rule is that islands that form part of the state’s coastline may be entitled to recognition that the coastal state has title. The second rule is based on the theory that there is an organic unity of certain kinds of islands, namely those that have a natural archipelagic unity. Thirdly, the coastal state has title to territory over islands that are formed by the action of a body of water, tidal, or riverain. The fourth rule, which he acknowledges as controversial, is that ownership of an island should be granted to the state that is closer in terms of comparative distance or proximity provided that the arguments put forth by both disputant states are evenly matched and there are no countervailing considerations. According to Professor Kaikobad, the rules that are relevant to the issue of title to Dokdo are those that pertain to the natural unity of islands and the principle of comparative proximity. Therefore, if Korea or Japan were able to establish that Dokdo is a natural part of or appendages to either Ulleungdo, the nearest Korean island or Oki Island, the closest Japanese island, the question of who has sovereignty over Dokdo would be clearer. He then identifies two types of evidence Korea and Japan could be able to marshal in support of their claims: the former being the “surface unity of the islands” which would include linkages to Dokdo in terms of historical, political, administrative, economic, social, and family connections and intercourse while the latter would be the “sub-surface evidence,” which is the geomorphology, geology, and bathymetry with respect Dokdo and the mainland of Korea and Japan. After a review of the evidence, Professor Kaikobad is of the opinion that the principle of contiguity would favor Korea on the issue of sovereignty over Dokdo. In the next chapter, Larry Niksch, a specialist on East Asia with the Congressional Research Service, offers an assessment of Korea’s policy options in regards to its claim to Dokdo and its relationship with Japan. Although Korea has a stronger claim to Dokdo in view of the historical claims, Korea faces the prob-

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lems of fully realizing its claim given the neutral position taken by other countries, especially the United States, and the absence of any reference to Dokdo in the San Francisco Peace Treaty. Thus, Korea appears to have three policy options to promote its claim. One option is for Korea to focus on maintaining and strengthening its present physical control, anticipating that the current status quo will cause other nations to recognize Korea’s claim and force Japan to abandon its own claim. Another option is to submit the dispute for settlement by third-party adjudication, such as through the International Court of Justice. A third option is for a negotiated settlement between the two countries. In choosing a particular policy option, the author believes Korea will have to deal with significant factors that have contributed to Korea’s “Japan bashing.” He notes the views of some Koreans that the Dokdo issue is part of a broader conflict with Japan, the belief that Japan has designs to invade Korea as it has done in the past, and the emotional reaction to any Japanese action in relation to Dokdo. These important elements have impacts not only upon Japan’s approach on Dokdo and other issues related to its relationship with Korea, but also on the United States’ attitude and perspective to the Dokdo issue, as well as Korean concerns of Japanese remilitarization. The final three chapters look to the territorial disputes Japan is involved in to provide insight into resolving the dispute over Dokdo. In Chapter IX, Professor Ji Guoxing of Shanghai Jiao Tong University compares the similarities and differences between two territorial conflicts over islands Japan has with its neighbors in northeast Asia: the Diaoyudao Islands dispute with China and the conflict over Dokdo with Korea. In both instances, Japan claims that the islands were terra nullius, discovered, and effectively occupied by Japan despite the historical evidence of discovery and administration of the island by China in the case of the Diaoyudao Islands and by Korea for Dokdo. Another similarity includes that the islands were occupied by Japan through their colonialist and imperialistic actions taken during the 1895 Sino-Japanese War and the 1905 Russo-Japanese War. Where the two disputes differ can be found in the attitude of the United States government which leans in favor of Japan with respect to the Diaoyudao dispute while it has taken a neutral stance in relation to Dokdo. Another distinction is that Japan has actual control over Diaoyudao whereas Korea has control over Dokdo. The issue of sovereignty over these islands affects delimitation between Japan and China as well as Japan and Korea in the East China Sea and the East Sea (Sea of Japan) respectively. Japan argues that its EEZ has full effect for Diaoyudao and for Dokdo while China and Korea reject that claim. Professor Ji points out that Diaoyudao was first discovered by China and Dokdo first by Korea and adds that Diaoyudao is an appendage of Taiwan and that Dokdo is an appendage of Ulleungdo. Ultimately, he concludes that Japan’s allegation of prescription is legally untenable in both cases.

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Professor Leszek Buszynski of the International University of Japan, in Chapter X, discusses the classification of territorial disputes into those involving the “homeland” and disputes over the “peripheral” and the implications of this distinction for the dispute over Dokdo. “Homeland” refers to the feeling of belonging that exists between the people and their historical land. The term “peripheral” refers to territory that was not considered part of the homeland but was located in the frontier. Territorial disputes over homeland may result in war and conflict. Though disputes over peripheral territory usually can be settled through negotiation and compromise, he points out that there are some disputes that are elevated to the point of non-negotiability. The row between Russia and Japan over the Northern Islands is illustrative of this situation. Japan is unable to make concessions in the territorial disputes it has with its neighbors without affecting negotiations in other disputes, particularly in relation to the Northern Islands. Professor Buszynski contends that states under these circumstances are beleaguered and are unable to take steps to resolve territorial disputes because of the linkages among them. If Japan surrenders one claim, its position over the others would be undermined. Thus, in relation to Dokdo, if Japan conceded its claim to Korea, it would lose all hope of obtaining the return of the Northern Islands which are significantly more important as homeland territory in comparison with Dokdo which is less important to Japan. He goes on to explain that the public efforts by Korea to confront Japan on Dokdo would be ignored and may in fact have the effect of strengthening Japan’s resolve on the issue. An appreciation of the importance of the linkage between the Northern Islands and Dokdo disputes for Japan will allow Korea to formulate a regional approach in dealing with Japan that may serve to remove the blockages in the Northern Islands dispute and in turn, help to resolve the Dokdo issue. In the closing chapter, Professor Jean-Marc Blanchard of San Francisco State University examines the potential role of economic interdependence and economic incentives to promote a resolution of the Dokdo dispute using an analysis of Japan’s dispute with China over the East China Sea and the Diaoyu/ Senkaku Islands and the dispute with Russia over the Northern Territories. The economic relationship between China and Japan was and is marked by a high level of economic interdependence. Economic incentives were utilized by Japan in an attempt to achieve a resolution of the Northern Territories dispute. His research suggests that with respect to China, economic factors did not inspire the 2008 East China Sea settlement nor did it help to resolve the dispute over the Diaoyu/Senkaku Islands. With respect to Russia, though the Japanese offered economic incentives, Japan was unable to motivate the Russians to compromise. Though Korea and Japan enjoy an extensive economic relationship, the political factors that animate the Dokdo dispute must be understood in order to

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help facilitate a settlement of the issue. Each country should be keenly aware of the domestic and international political circumstances facing the other country and make judgments as to how to approach negotiations and what deals to propose based on the level of stateness of the ruling administration. A proper understanding of the political realities can also lead to the use of economic incentives in a manner that encourages compromise. Professor Blanchard also notes that the political circumstances might be such that a deal potentially concluded between the two countries may not resolve all issues related to Dokdo. He warns that the political leaders on each side must prepare their people or prepare for a possible backlash. Again, the editors hope that this book will provide a framework for better appreciation of how such goals can be achieved, and in particular, how bilateral relations between the claimants, Korea and Japan, can be improved.

Chapter II Legalism, Geopolitics, and Morality: Perspectives from Law and History on War Guilt in Relation to the Dokdo Island Controversy Harry N. Scheiber* I. Introduction Highly sensitive issues in East Asian diplomatic relations are raised by the troubled questions of law and policy generated by the Japanese-Korean dispute with regard to sovereignty over the islet Dokdo in the East Sea. Attention has been given by distinguished scholars to various aspects of the formal questions based in pertinent international law. Their studies consider, as required in formal legal analysis, the current interpretations of rules, the often difficult and sometimes very arcane technicalities of law, and the precedents from prior decisions in similar cases as rendered by tribunals that have dealt with islands and maritime boundary questions. In a recent article, Professor Van Dyke has presented a searching inquiry on these lines regarding the dispute between Japan and Korea regarding sovereignty over the tiny Dokdo islet territory in the East Sea/Sea of Japan setting forth a comprehensive critical review of the academic and polemical literature, together with a full analysis of the factual, legal, and doctrinal question.1 Its persuasive conclusion is that if an international tribunal were to adjudicate the dispute, Korea’s claim very likely would prevail.2

* Stefan A. Riesenfeld Chair Professor of Law and History and Co-Director of the Law of the 1

2

Sea Program, University of California, Berkeley. See Jon M. Van Dyke, Legal Issues Relating to Sovereignty over Dokdo and Its Maritime Boundary, 38 Ocean Dev. & Int’l law, 157–224 (2007). Succinct chronology of the dispute, hyperlink references to Japanese and Korean documents, and geographical/geophysical data on Dokdo, available at http://www.dokdo-takeshima.com. Id., at 195. Byung-Ryull Kim, The History of Imperial Japan’s Seizure of Dokdo (Northeast Asia History Foundation ed., 2006) (providing a collection of diplomatic documents, cartographic references, and other sources supporting the validity of Korea’s claim). The Japanese Ministry of Foreign Affairs maintains a web-based home page providing the documentation on

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In the present chapter, I do not revisit the Dokdo sovereignty issue by traversing once again all the same ground as has been so comprehensively discussed. Instead, I will contend here for giving moral considerations, especially with regard to war crimes and basic human rights, an overarching priority – indeed, a priority justified by the specific historic background, even over positive law as represented by the terms of the Japan Peace Treaty signed in San Francisco in 1951. The analysis will open with attention to the two key elements of Japan’s claim to Dokdo, both of which I regard as requiring full reconsideration in light of their historic context. First of these elements is Japan’s claim based upon the timing of its initial physical occupation of Dokdo and (shortly afterward) annexation to its home islands government. The second is Japan’s literalist – that is to say, its formalist or legalistic – reading of the Japan Peace Treaty’s language regarding the territories that were specified as being ceded back to Korea. Of particular importance to this proposed approach is the contextual geopolitical setting, the essence of which is the history of the United States government’s policies with regard to the Occupation goals during 1945–52, and with regard to the peace-treaty negotiation process and the restoration of sovereignty to Japan; and, finally, the Cold War and Korean War factors that were so pervasively influential in driving a readjustment of U.S. policies and the acceleration of the Peace Treaty process. In concluding the analysis, I shall contend for a determinative moral perspective on the Dokdo debate – a perspective from law and history that takes into account the entirety of Japan’s treatment of Korea and her people throughout the first half of the twentieth century. That history embraces, at its core, Japan’s coercive annexation of Korea, its oppressive and exploitative colonial rule, its responsibility for a wider war that became World War II, and, finally, the record of crimes against human rights (and in blatant contravention of international codes of behavior in war) that so notoriously were committed by Japan during the years of war.3

3

which it relies to support its own claim, available at http://www.mofa.go.jp/region/asia-paci/ takeshima/index.html. John W. Dower, War Without Mercy: Race and Power In The Pacific War (1987) (considering war atrocities on both sides in the World War II combat areas and in Japan’s occupied and colonial territories); Tokiyushi Tanaka, Hidden Horrors: Japanese War Crimes in World War II (1996) (providing a detailed documentation of shocking atrocities including forced prostitution, abuse and killing of prisoners of war, forced labor, biological and medical experimentation, and mass rapes committed by the Japanese military and with full knowledge of the command officers and ministry level offices in Tokyo). Recent scholarly studies have similarly cast new light on the horrors of specific Japanese actions and on the degree to which Emperor Hirohito was complicit in war crimes. See, e.g., Herbert Bix, Hirohito and the Making of Modern Japan (2001); Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II (1998).

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What of future chances for bringing the Dokdo issue to a constructive closure? The view of Korea’s sovereign claim to Dokdo that I regard as compelled by the application of a moral perspective, founded upon the revisiting of the history and a fuller understanding of the relevant geopolitics, suggests the possibility of merging the war crimes and Dokdo issues for purposes of achieving a single combined settlement. My position is that there can be advantages to both sides, not only to the Korean people, if Japan’s political and intellectual leaders would courageously develop such an approach, taking responsibility for their nation’s past and including a cession of claims to Dokdo in a restitution package that is so long and tragically overdue. Before proceeding with this analysis, however, I offer a personal note – an appeal to readers that my views in what follows be taken as they are intended: viz., as a commentary on a specific set of circumstances in their legal, geopolitical, and moral context, rather than as an expression of a personal or general bias against Japan. For one thing, it must be acknowledged that instances of crimes against individuals and groups, including both war crimes and the more extreme forms of what we would today term the “cultural imperialism” associated with colonization, are found in the histories of probably every nation on the globe.4 But for our purposes in considering the Dokdo issue, it is Japan’s record as colonizing power and war combatant that we are obligated to confront squarely.5 And so, while I express in this chapter a highly critical view of Japan’s record on the war guilt and war crime issues, if my attention were to be focused on other topics on which I have written – such as the progressive reform of Japan’s legal system, or liberalization of Japanese family law – the

4

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Certainly it is true of U.S. history with regard to the record on slavery, racial and other discrimination, and the shameful past treatment of the native Indian population; in addition, there is the more contemporary scandal of prisoner torture by the U.S. military and CIA under the Bush administration in Iraq and Afghanistan. Recent disclosures concerning mass executions and murders by the Army and Korean police in the midst of the Korean War have thrown light on a dark side in the history of nation. See, e.g., J.M. Glionna, South Korean Panel Acknowledges Mass Executions in 1950, L.A. Times, Nov. 27, 2009 (reporting the Korean government’s Truth and Reconciliation Commission on the early-war-period massacre of nearly 5,000). The author has devoted extensive research effort in the last 20 years to studies of Japanese legal culture and the country’s post-World War II history, and has had the honor of numerous close collaborations with academic colleagues in Japan. See, e.g., H. Scheiber, Interallied Conflicts and Ocean Law, 1945–53 (2001); K. Mengerink, H. Scheiber, & Y. Song, Japanese Policies, Ocean Law, and the Tuna Fisheries, Conservation and Management of International Tuna Fisheries (D. Squires et al., eds., 2009); H. Scheiber, Japan, the North Atlantic Triangle, and the Pacific Fisheries: A Perspective on the Origins of Modern Ocean Law, 1930–1953, 6 San Diego Int’l L.J., 27–112 (2004); Akio Watanabe & H. Scheiber, Occupation Policy and Economic Planning in Postwar Japan, in Economic Planning in the Post1945 Period, 100–109 (E. Aerts and A. Milward, eds., 1990).

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tone and nature of to take a questions

content of my views would be very different.6 It is the compelling the moral issues that I will be considering that makes it impossible posture of detachment and indifference that would mask the vital at stake.

II. A Reconsideration of Two Conventional Legal Issues The analysis that follows will focus first on two prominent elements of Japan’s claim to Dokdo that are usually considered in the framework of the conventional legal analysis of the contending Dokdo claims. Both the elements in question are prominent pieces in the basic structural underpinning of the Japanese position. 1. Japan’s Seizure of Control in Dokdo The first of these two elements in the Japanese position requires relatively brief attention, given what I submit should be seen as its manifest weakness, whether as to its logic or its validity in the light of accepted jurisprudence: I refer to Japan’s contention that the longevity of its occupation, control, and annexation of Dokdo (from 1905 through the end of World War II) is, under received international law and precedent, a conclusive basis for Japan’s claim to sovereignty now. Japan seized the islet in 1904 and then declared unilaterally incorporation of Dokdo into its sovereign national territory. (Korean and other critics of this claim have pointed out that Japan did this without the customary notification to other nations in the global community, that is, in a manner that these critics characterize as irregular and surreptitious – and so per se invalid.)7 To accept Japan’s argument; based on unilateral annexation and the duration of subsequent control is indeed difficult, for it requires that we should set aside as irrelevant the actual historic context in which it acted – that is, that this seizure of control in Dokdo occurred at the very moment in history when Japan was coercively depriving Korea of its sovereignty, and, moreover, that this was but the first action by Japan in a progression that made the entire life and society of the Korean nation subservient to exploitative

6

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See, e.g., Scheiber, INTRODUCTION TO, Emerging Concepts of Rights in Japanese Law (H.N. Scheiber and L. Mayali eds., 2007); see also Japanese Family in Comparative Perspective (H. Scheiber and L. Mayali eds., 2010). Conferences and publications on Japanese culture sponsored by the Sho Sato Program for Japanese and U.S. Law, in the School of Law, U.C. Berkeley, are directed by the present author, available at http://www.law.berkeley.edu/1964 .html. Kim, supra note 2, at 137–155; Van Dyke, supra note 1, at 176–78.

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and often cruel Japanese rule.8 Hence, Korea was deprived of effective means of asserting its own nation-based claim in the diplomatic arena.9 And even after its liberation from Japanese rule in 1945, Korea continued to be in a weakened negotiating position on Dokdo because of the invasion from the north and the war, and also because of lack of support from the U.S. It is unthinkable that a conquest such as Japan achieved at the start of the twentieth century, a conquest that foreclosed any effective response by the people who were victimized by colonization, should be credited as the valid basis for a territorial claim. While the war raged in Korea, casting into the diplomatic background the question of Dokdo, the Allied powers had begun the process of negotiation for a peace treaty. This brings us to the second issue in the framework of conventional legal analysis: the terms of the Japan Peace Treaty. 2. The Diplomacy and Geopolitics of the Peace Treaty The exclusion of Korea from an effective role in defending its claim to Dokdo continued far into the postwar period. Korea’s effective disfranchisement was influenced profoundly by the U.S. government’s relentless determination after 1949 to bring the occupation of Japan to an early end, and to obtain Allied support for an early, non-punitive peace treaty generous in its terms to Japan.10 At a time when the war was raging on Korean soil, the Republic of Korea’s interests (beyond fighting for its survival against the Chinese and North Korean attack) could not be pursued as they might otherwise have been. In fact, high-ranking U.S. officials exerted strong efforts to keep Korean territorial claims out of the diplomatic picture – either motivated by explicit intention or else (as a more charitable interpretation) as an unwitting result of the confusions and urgencies of the wartime situation confounding information flows within the military and civilian bureaucracies.11 8

9

10

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Peter Duus, The Abacus and the Sword: The Japanese Penetration of Korea (1995); C.I. Eugene Kim & Han-Kyo Kim, Korea and the Politics of Imperialism, 1876–1910 (1967). See also text, infra note 19. Van Dyke, supra note 1, at 17 (citing to Choung-Il Chee, Korean Perspectives on Ocean Law Issues for the 21st Century 6 (1999)). See, e.g., Bernard Cohen, The Political Process and Foreign Policy: the Making of the Japanese Peace Settlement (1995); Richard H. Immerman, John Foster Dulles: Piety, Pragmatism and Power in U.S. Foreign Policy (1998); Richard Rosecrance, Australian Diplomacy and Japan 194–551 (1962); Michael Schaller, The American Occupation of Japan: the Origins of the Cold War in Asia (1985); The Postwar Foreign Policy of Japan (Akio Watanabe ed., 1985). Seokwoo Lee, The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia, 11 Pac. Rim L. & Pol’y J 63 (2002) (casting light on this topic from relevant files in the State Department records, U.S. National Archives). Lee’s findings are incorporated into Van Dyke’s analysis. See Van Dyke, supra note 1, at 182–85.

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Had Korea’s Dokdo claim been brought into the complex multinational preparatory treaty negotiations being orchestrated by John Foster Dulles, it might have given Mr. Yoshida’s government serious difficulty with public opinion and with the Diet, a more general concern that worried Dulles greatly. Presumably Dulles would also have balked at introducing any issue, such as this, however small in scope, that could cause disagreement among the Allied governments and thereby interfere with America’s primary objective. That objective was to obtain agreement on the treaty terms quickly, and then to secure the strategic alignment of Japan, once sovereignty was restored, with the U.S. and its Cold War and Korean War allies against the Soviet Union and the People’s Republic of China.12 When the Allied representatives convened to sign the Peace Treaty in San Francisco in September 1951, the full extent of the immunities that were to be afforded to the newly sovereign Japan became clear. Two provisions proved to be extraordinary in the advantages they afforded Japan. One was the so-called “waiver” provision that specified limitations on Japan’s liability for reparations or restitution to nations and persons victimized by her actions. The other was omission of Dokdo from the list of territories that constituted the spoils of its imperial expansion and wartime conquests. As I have already indicated, this omission was certainly consistent with American intentions, and possibly was the result of U.S. officials’ misguided presentation of the facts at the time. Indeed, it is hard to explain how Dean Rusk, a high-ranking U.S. State Department officer, could have asserted, as he did – with a critical impact upon the diplomacy of territorial issues in the Treaty – that the U.S government had no knowledge of any historic Korean counter-claim to Japan’s “Takeshima” position.13 12

13

A clear expression of Mr. Dulles’s attitude is illustrated by the manner in which he insisted upon separation of the divisive issue of Japan’s future as a fisheries power from the general peace treaty question. The U.S. official who had drafted a proposed fisheries provision for the Treaty (which would later become the working draft of the International North Pacific Fisheries Convention of 1952) reported that Dulles had said to him that he was determined “that his quick negotiation of a short general Treaty of Peace would not get bogged down in fisheries squabbles that would drag out the settlement.” From Wilbert Chapman, Chief Fisheries Office in State Dep’t, to Montgomery Pfister (Jan. 6, 1951), in Wilbert McLeod Chapman Papers (on file with the University of Washington Library). See also, supra note 10. This is a problem that Professor Seokwoo Lee has discussed, based on his research in the U.S. archives. Especially problematic is a letter from Mr. Rusk to the Ambassador of Korea declaring, “the island does not appear ever before to have been claimed by Korea” and “since about 1905 has been under the jurisdiction . . . of Japan.” Letter from Dean Rusk, Assistant Secretary of State, to Yang You Chan, Ambassador of Korea (Sept. 1951), available at http://www.mofa .go.jp/region/asia-paci/takeshima/treatment.html. Rusk’s assertion was patently inaccurate as to what others in the State Department knew and had discussed; it was in any event consistent, however, with Rusk’s position of strong advocacy, within the Department, for a benevolent

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In any event, Dokdo was not included among the Japanese occupied territories to be returned to Korea, despite the earlier declaration of the Allied leaders at Cairo in 1943 that “Japan will be . . . expelled from all other territories [in addition to islands in the Pacific area] which she has taken by violence and greed.”14 This position was later qualified significantly by the language of the Potsdam Proclamation of the four major Allied powers in July 1945, in which Japanese sovereignty was defined as “limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and to such minor islands as we determine.”15 Omission of Dokdo from the list of “minor islands” was also a feature of the final territorial settlement provision of the Peace Treaty. This omission has provided Japan for sixty years with the argument that seems to me the most plausible, among the many that it has put forward in support of its “Takashima claim” for the Dokdo islet. Nonetheless, I will contend that this argument – which can be termed Japan’s “least implausible” argument, even though it stands on a foundation of explicit treaty terms,16 – is overbalanced by moral considerations of justice and morality that should override and prevail over it. Beyond the moral dimension, objection may be raised against the Japanese position from a more narrowly legal ground, to wit, that Japan’s position is predicated upon the unsupportable view that the Peace Treaty terms are to be implemented as the maximum limit of what Japan is obliged to do by way of concessions; instead, these terms should be regarded in terms of purely legal obligation as the minimum that is required of Japan. And if moral imperatives require more than the Peace Treaty specified, there is no obstacle whatever to Japan accepting responsibility beyond what the treaty specified as its obligations.

14 15 16

Occupation policy and generous peace treaty terms for Japan. See files relevant to peace treaty negotiations (on file with Dep’t St. Records in the Nat’l Archives). Rusk’s statement was also contrary to the admitted understanding as to Dokdo/Takeshima sovereignty in the highest levels of the Japanese government itself. See Hang Ju Nah, The Essence of Dokdo Issues and Counter-Measures, in the Focus of Japanese Prime Ministerial Decree No. 24 (June 6, 1951) (on file with author). The first five drafts of the treaty, dating from 1947 preliminary meetings, mentioned Dokdo as territory belonging to Korea, available at http://www.dokdo-takeshima .com/dokdo-sf-truth.html. The Cairo Declaration (Dec. 1, 1943). The Potsdam Declaration, para. 8 (July 26, 1945). This argument is linked by Japanese commentators to Japan’s objection to the controversial Rhee Line declaration of 1952 as the instrument by which the modern ROK claim was issued to the global community. See, e.g., Nobuyoshi Sumita, Governor Shimane Prefecture, On the Occasion of Takeshima Day, available at http://www.dokdo-takeshima.com/dokdo-shimanecase.html. In this regard, it should be noted that the Occupation authority had already warned Mr. Rhee that the declaration of such a maritime jurisdiction could not be supported by the U.S. Scheiber, supra note 5, at 229–32.

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3. The Waiver on Reparations The second Peace Treaty provision that treated Japan with extraordinary generosity immunized its government explicitly from liability for reparations and significant redress. This was the famed “waiver provision” of the Treaty’s Chapter 5, Article 14, which reads: “Except as otherwise provided in the present treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of prosecution of the War.” 17 Since the signing of the Treaty in 1951, the Japanese government, together with some of the largest and wealthiest private Japanese corporations, have consistently employed the language and intent of this “waiver” as the legal anchor of their ongoing resistance to the claims advanced by various victims of their war crimes. Those victims include, among others, the civilian and military prisoners who were forced into virtual slave labor for Japan – a fate that condemned a significant proportion to the fate of death; the women from China, the Philippines, and Korea, among other conquered territories, who were forced into unspeakable exploitation; the conscripts into the Japanese Army from Korea and other conquered areas who were shipped out into combat areas to fight and die; and others who similarly became the hapless victims of Japan’s disregard of the rules of war and heinous violations of basic human rights.18 For

17 18

Treaty of Peace with Japan art. XIV, Sept. 8, 1952, 3 U.S.T. 3916, 136 U.N.T.S. 45. See Kinue Tokudome, POW Forced Labor Lawsuits against Japanese Companies, Japan Pol’y Res. Inst. Working Paper No. 82 (Nov. 2001), available at http://www.jpri.org/publications/ working papers/wp82.html. Concise discussion of the litigation issues as they were then proceeding in the California state courts. See David D. Caron, U.S. Litigation Concerning Japanese Forced Labor in World War II, Am. Soc’y of Int’l L. Insights (Oct. 2000), available at http://www.asil.org/insight 57.cfm; Michael J. Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20 Berkeley J. Int’l L. 11, 27–32 (2002). On the prosecution and defense of Nippon Mining Company’s use of prisoners of war as slave laborers, see Anita Ramasatry, Corporate Complicity: From Nuremberg to Rangoon – An Examination of Forced Labor Cases and their Impact on the Liability of Multinational Corporations, 20 Berkeley J. Int’l L.91, 111–117 (2002) (treating the issue of corporate complicity by American and other multinationals in regard to their organizational relationships with German and Japanese firms that used forced labor). Korean claims against Japanese firms, standing on a different grounds than those of former POWs who were in the Allied armed forces, were argued in the American courts on a different formal legal basis than the American and Allied claims, in that Korea was not a signatory to the Peace Treaty; but the rulings went against them on grounds of expiration under the relevant statute of limitations, and in at least one ruling on grounds the U.S. government’s Statement of Interest (contending that it would violate a foreign relations commitment to permit compensation to be ruled upon in an American court) made the issue of restitution by Japan purely a foreign affairs matter and thus a political question exclusively under control of the Executive Branch (i.e., the President and through his authority the Department of State).

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the Korean people, moreover, these war-period crimes were committed against them after a thirty-five year period of suffering under Japanese control during the annexation era: during which hundreds of thousand of farm families had their farmland coercively taken away and were reduced to tenancy; Japanese firms had exploited the country’s coastal fisheries, forest resources, and minerals entirely without regard to Korean property rights or welfare; and the Japanese colonial authorities had structured rice exports to the exclusive advantage of Japan, at the expense of consumption levels of the Korean people. These aspects of economic exploitation – which reduced income levels and economic well-being of the Korean people while overall production was rising for Japan’s benefit – were, of course, only a part of the larger policies of sustained political and cultural repression that prevailed throughout the period of Japanese rule.19 Despite the atrocities to which American POWs, civilians in the Philippines, and other American citizens were subjected at the hands of the Japanese during the war, the U.S. government was the principal advocate and draft author of these two provisions of the Treaty. And ever since 1951, the U.S. had adhered to a position of support, that is, it has backed the Japanese government and corporations in their resistance to reparations and restitution demands, whether in political channels or in the courts (including both American and Japanese civil tribunals). The rationale expressed by American diplomats and political leaders has been the same as Japan’s, viz., that the treaty is the controlling law and is determinative, and hence sets the maximum terms that Japan is legally obliged to accept.20 (However, as evidenced by the cooperation of the U.S. government with regard to claimants’ negotiation of voluntary restitution programs from

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Choon-Ho Park, East Asia and the Law of the Sea 57–60 (1983) (commenting on Japanese fishing fleets’ relentless assault on Korean coastal fishery resources during the period of Japan’s control); Byung-Nak Song, The Rise of the Korean Economy, 38–42 (1990). Although rising Korean rice production had been directed by the Japanese regime in “soaring” levels to the export sector exclusively to Japan, there was a decline in per capital food consumption by the Korean people. Id. at 39. See also Edward S. Mason et al., The Economic and Social Modernization of the Republic of Korea (1980). Former Secretary of State George Schultz stated the basic U.S. policy on this question and hinted at the importance of Japan’s alignment with the West in the Cold War, when he commented on a move in Congress in 2001 to forbid the use of government appropriations for Justice Department lawyers’ interventions against the claimants and in favor of Japan in the several suits then in American courts. See, Tokudome, supra note 18, at 5. “[T]he bill in question,” Schultz wrote, “would have the effect of voiding the bargain made and explicitly set out in the Treaty of Peace;” the Treaty was a “bargain,” he continued, “[that] has served us well in providing the fundamental underpinning for the peace and prosperity we have seen, for the most part, in the Asia Pacific region over the past half-century.” (Quoting Schultz in 147 Cong. Rec. H4170 (daily ed. July 18, 2001)).

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Germany, Austria, and Switzerland, there was no objection from Washington against the negotiation of such settlements).21 Ironically, while insisting on a literalist reading of these provisions that were so beneficial to them, Japanese officials proved willing and eager to set the Treaty’s literal terms aside when it was to their material advantage to do so: e.g., in paying monetary compensation rather than providing the labor and services that the Treaty explicitly specified was its obligation in production, “salvaging and other work” needed in order to “repair the damage” done in occupied Allied territories. Similarly, with full U.S. cooperation, the Dutch government negotiated an agreement with Japan for compensation to a group of its citizens seeking restitution – even though in litigation since then, Japan has adhered to the literalist position, selectively as it were, insisting that the Treaty terms made no provision for restitution to individual persons or groups, only to governments in the forms of restitution that were specified.22 In light of its past willingness to depart from literalism when convenient, Japan is significantly compromised – even in the perspective of ordinary technical legal analysis – in claiming legal immunity from reparations claims by individuals. Small steps in the direction of taking responsibility can be cited, but they remain isolated instances whose more general significance is unclear as of this writing. (These include Japanese government action returning to Seoul in 2008 the remains of 101 Korean conscript soldiers who died in Japanese military service; and the recent voluntary settlement by the Nishimatsu Construction Company to establish a restitution fund of 250 million yen to compensate Chinese who were used by the company as forced laborers during the war. Nishimatsu’s decision to step forward voluntarily in this came despite the Japanese Supreme Court’s ruling in a 2007 appeal that there was no legal entitlement on the part of the Chinese plaintiffs.23) 21

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Michael Bayzler, Holocaust Justice (2003); Michael Bayzler, Japan should Follow the International Trend and Face Its History of World War II Forced Labor, Asia-Pacific J. 30–32 (2009); Steven Clemons, Recovering Japan’s Wartime Past – and Ours, N.Y. Times, Sept. 4, 2001, at A27. See also, infra notes 22–23. In testimony to Congress in 2001 Professor Harold Maier of Vanderbilt University discussed his review of “at least eight treaties in which the Japanese government has extended ‘more’ favorable treatment to other nations than it did to the United States with respect to United States claims on behalf of its injured nationals.” Tokudome, supra note 18, at 4 (quoting Professor Maier’s statement to Congress). Kyodo News, Nishimatsu Settles with Chinese Forced Laborers, Japan Times, Oct. 23, 2009. An earlier, similar case involving Chinese taken to Japan to work as forced labor in a coal mine owned by Mitsui Mining Company, received wide attention when the Fukuoka High Court overturned a ruling in favor of plaintiffs by a trial court on grounds both the government and the Mitsui interests were protected by the relevant statute of limitations (which specified a 20 year limit for initiation of suits). Wu Gang, Forced Labour Case Voided in Japan, The China Daily, May 5, 2004, available at http:www.chinadailycom.cn/English/doc/2004–05.

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A final observation with regard to Japan’s invocation of the Peace Treaty terms in these matters is worth reiteration in this context: Despite its resort to a literalist interpretation of its Treaty obligations, as I have noted earlier, Japan remains perfectly free to undertake restitution for individuals who seek redress for war crimes and violations of human rights. The Treaty should be taken as the definition of minimum obligations, not of maximum immunity.

III. Conclusion In 1945 and 1952, Japan was a beleaguered nation, its society reeling from defeat and needing massive material assistance from the Allies to rebuild the country’s economy and restore stability in its social and political order. Throughout the Occupation period, Japan was propped up and defended, its interests promoted across a broad spectrum, by the U.S. This was done over strong objections of even America’s closest Allies.24 A beneficent American occupation policy, reflected in General MacArthur’s determination to protect the Japanese from Allied pressures with regard to reparations and other demands for restitution, in effect provided Japan’s leaders with an immunity against the need to come to terms with its past. In that sense, the civilian officials and political leaders of Japan led a cloistered existence during the Occupation; the curtailing and termination of the Tokyo war crimes trials reinforced this sense of immunity. Departing from his view in 1945 at the time of the surrender, when he had declared that Japan must not be relieved of “the physical and psychological burdens of defeat,”25 MacArthur shifted position on this central question of policy even as early as 1946. When the Allies voiced objections to his favoring of Japan’s interests over their own, for example in regard to food supply, MacArthur denounced the Allies’s position as “shamelessly selfish and negative,”

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For example, there were conflicts with the Allies over the beneficent Occupation policies that evoked protests that Japan was being effectively pardoned for its war crimes, and even being given priority by the U.S. with regard to food supplies and vital industrial materials, while recovery from war losses and relief of suffering in the Allied nations and their former colonies in Asia were being given lesser priority. See Scheiber, Inter-allied Conflicts and Ocean Law, supra note 5, at 101–174. On beneficence of the Occupation policies more generally, see generally John W. Dower, Embracing Defeat: Japan in the Wake of World War II (1999). General of the Army Douglas MacArthur to the Chief of Staff (Marshall), 6 Foreign Rel. of the U.S. 671 (1945). See H. Scheiber, Taking Responsibility: Moral and Historical Perspectives on the Japanese Reparations Issue, 20 Berkeley J. Int’l L. 212–49, at 240–48 (2002) (drawing directly in this paragraph from an earlier article on the human rights theme).

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portraying his own policies as “entirely just, humanitarian, and practical.”26 The theme of humanitarianism was also voiced in other contexts. For example, with regard to demands for industrial plant transfer and other reparations, Mr. Dulles declared in a widely disseminated speech delivered in 1951: “Reparations were unthinkable . . . [and would] constitute an almost inhuman burden to bear” for Japan!27 And so we see that a moral perspective, manifested in the Occupation policies and the underlying purposes of the Peace Treaty, not only in American leaders’ rhetoric, worked in those days to the enormous advantage of Japan. On this last point, it is revealing to consider the report to his government in 1951 by a distinguished British diplomat, Alvary Gasgoigne, after a long private meeting with Prime Minister Yoshida. The Occupation command, Gasgoigne wrote, had failed abjectly in getting the message across to Japanese leaders that other nations did not approve of the insulation of Japan from the view of other Allied governments and peoples that Japan bore a heavy burden of moral responsibilities for “the barbarous manner in which the [Japanese] behaved . . . during the Second World War.” He found it astonishing that Mr. Yoshida “feels hurt . . . that we are not at present actively wooing Japan to the same extent as the U.S. [is doing]”!28 Another officer in the U.K. legation in Tokyo had a similar view, reporting to his Foreign Office that “the majority of Japanese have no idea of the legacy of hatred they may have left behind them . . . and that if I, or any other British official, were to tell them of it, we should probably be thought to be lying.”29 In sum, General MacArthur erected a protective screen that effectively isolated Japan’s leaders and people from the potential costs to them of the bitterness and hatred they had created. In that process, the Occupation regime had created a mindset in the Japanese government and society that has persisted strongly through all the years since the Surrender: it is the mindset that resists the idea that Japan should accept full moral responsibility for war guilt and war crimes. The basic attitude that results from it has been evidenced in myriad ways, not least in the intransigence with which Japan has resisted restitution claims, denied outright the validity of well-documented and essentially irrefutable evidence of war crimes, countenanced visits to the Yasukuni shrine by its leaders and that brazenly honor the architects of Japan’s crimes, and manipu-

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29

Radiogram: From MacArthur’s headquarters in Tokyo to War Department (July 5, 1947) (on file with MacArthur Memorial Archives and Library). John Foster Dulles, Address at Whittier College (Mar. 31, 1951), full text in N.Y. Times, Apr. 1, 1951, at 46. Conversation between His Majesty’s Ambassador and the Japanese Prime Minister: Sir A. Gascoigne to Mr. Bevin (Jan. 29, 1951) (on file with U.K. Public Records Office). George Clutton, Despatch No. 332 (Oct. 2, 1995) (on file with U.K. Pubic Records Office).

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lated the historical accounts of the Pacific War and World War II as presented in textbooks used in the public schools. To the present day, there has not been even a ritualistic apology on terms reasonably expected by those who have been victimized, let alone the material restitution that would logically accompany such a reversal in attitude and intention.30 The war-guilt and war crimes issues persist as a central problem in the conduct of Japanese foreign policy, a recurrent source of profound and enduring difficulties in East Asian international relations in Northeast Asia. Now, more than sixty years after the Occupation authority’s beneficent reconstruction of the Japanese economy and the restoration of sovereignty, it would be no great sacrifice for Japan to accept responsibility and to view its obligations in a moral perspective, and thus follow the example of German and other European restitution agreements, giving some measure of justice to those individuals whom it has harmed. It would be mistaken, I submit, to assume that application of the moral perspective implies a zero-sum diplomatic game in which Japan loses entirely as Korea prevails in its claim. An analysis in which the Dokdo dispute is linked to the ongoing war guilt and war crimes issues can produce distinctive benefits for Japan and not only for Korea. The practical advantage for Japan, one may hope, is that settlement based on a concept of justice – a concept transcending legalisms – can serve to advance the resolution of an issue that has hung on far too long, to the detriment of Japan’s reputation as an actor in international affairs. It may be a fruitful path for addressing the problem of Japan’s widely recognized persistence, for more than half a century, in refusing to come to terms with its past. In the scenario that I am proposing, Japan would yield on its claim to Dokdo, linking that gesture to a formal apology by the Emperor and a program of tangible restitution to individuals and their families who were especially harmed during the annexation period and during the war. If Japan should act as suggested here, it raises the question, of course, of whether Korea should be induced 30

With regard to restitution for the “comfort women” abused by the Japanese military, it was not until 1992 that the Japanese government finally admitted to the existence of the officially sanctioned practice by their military, doing so only after the sensational revelation of newly discovered records documenting the atrocity. Although this was followed by an apology from Prime Minister Kiishi before the National Assembly in Seoul, it did not meet the demand of the Korean victims that such an apology come directly from the Emperor; and in fact most victims of the comfort women policy who are surviving have refused money payments, tendered through a third-party front organization, on grounds the apology was not forthcoming as they required. S. Sarah Soh, Japan’s National/Asian Fund for ‘Comfort Women,’ 76 Pacific Affairs 209–233 (2003); also, private interviews by the author with Japanese sources involved in the efforts to persuade victims to give up the demand for apology and accept monetary compensation.

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to match such a dramatic Japanese move with a conciliatory concession of its own – not as a matter of obligation (legal, moral, or otherwise) but as a way of advancing the cause of normalization of Japanese-Korean relations. To be sure, this course has the same potential to prove perilous, politically, for the Korean government’s leadership as would be the decision by Japan’s leaders to give up the Dokdo claim and undertake the restitution actions proposed here. Nonetheless, it is important to speculate on the options that might become acceptable if espoused by the two governments and defended in their domestic arenas in the right spirit, impelled by an authentic determination to make a settlement work. One possibility, in such a scenario, would be a proclamation by Korea promising that the territorial sea and full sovereign claim over Dokdo’s surrounding ocean area would be limited to twelve miles, and at most twenty-four miles for a contiguous zone. As to the waters beyond, some compromise would be formulated as to the control of fisheries and other resources – for example, an assured share (with a reasonable catch limit) for Japan of fishing yields in the Exclusive Economic Zone (EEZ) that presumably would be created by Korea, with similar consideration for Korean fishing activities in the Japanese zone that would be demarcated on its side. (Creation of the EEZs in the affected area of the East Sea/Sea of Japan has been delayed until now because of the boundary dispute.) Various alternative actions toward effecting a compromise on bilateral arrangements for resource use might be suggested as options by creative lawyers, diplomats, and elective officials – arrangements that would be seen as more than empty gestures by Korea, yet preserving for Korea a substantial portion of the benefits it would enjoy from full EEZ control in the absence of the boundary dispute. The major effect of such an agreement, of course, would be that the Korean nation would obtain its objective of an unchallenged title to sovereignty over Dokdo and the small sister islets. As an additional benefit for both countries, however, the agreement would also eliminate (or at least would soften measurably) a source of destabilizing and inflammatory diplomatic conflict and domestic political agitation – a benefit of very considerable weight. Japan’s recognition of war guilt, and acceptance of responsibility for past crimes against humanity, of course would also serve to address the wounds that have been aggravated by the unconscionably delayed apology and restitution that are owed to individual Korean citizens. And not least important among benefits to be derived, if a linkage between these issues were to be achieved as the basis for an agreement – difficult as it might be for the majority of Japanese people who had no direct part in committing the past actions at issue – both countries would share in the benefits of a major step forward in normalizing cultural and diplomatic relations. These two issues that have poisoned the diplomatic waters and agitated the politics and

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political cultures of both countries would be put to rest; and such a development can only serve to advance on a much broader front the cause of peaceful relations in Northeast Asia. Removing a moral stain of such deep meaning, and creation of more harmonious relations between the two national citizenries and governments, would thus in the long run contribute to the achievement of rule of law in the region’s international affairs. Arguably, this is a utopian proposal, too optimistic by far in its presumption that Japan’s intransigence on both issues at stake can be overcome. And utopian as well if it overestimates the creativity that Korea’s leadership would consider bringing into such a negotiation in the cause of expediting agreement. One must recall, however, that it was once regarded as hopelessly unrealistic that a Japanese-Korean agreement on joint development of any part of the Continental Shelf region of the East Sea/Sea of Japan could have been achieved; yet it came to fruition, despite the doubts voiced by so many. Moreover, some of the most important steps forward in the history of progressive change in modern diplomacy had their start with ideas that were dismissed initially as being politically impossible of achievement. Even the reopening of the World War II reparations issues in Europe in the late 1990s had long been seen as utopian, if not to say scorned, as being a futile cause; and yet there has followed since then an acknowledgement of facts long hidden, and revelations of the extent of war crimes formerly covered up – followed by apologies and voluntary restitution payments agreed upon. I will close with a reference to a hard geographic reality, one that is perhaps too easily lost from view in the noise and tumult of the zealous public agitation of the Dokdo question on both sides. This hard reality is the nature of the islet cluster itself. One of the ironies of this difficult and protracted dispute – whether one stresses legalism, geopolitics, or morality and justice – is that the nugget of great wisdom that was left to us by Judge Choon-ho Park is too easily forgotten. He wrote that it was dangerous for Japan and Korea to call “the barren rocks” constituting the Dokdo islets “the sacred territory of the fatherland.” In actuality, he stated, “they are merely ‘fly specks’ on maps, so that you need a magnifying glass to find them . . .”31 Thus did Judge Park bequeath to the present generation of governing leaders a profoundly important warning: that an excessively inflamed public opinion and dangerous international tensions, triggered by contention over such a territory, is a situation fraught with the possibility of a tragic denouement. To avoid such a tragic outcome, I submit, is well worth the pursuit of what may at first seem a utopian strategy for an honorable settlement – especially so if the settlement also will bring with it, at last, the resolution of so embittering a war crimes legacy.

31

Choon-ho Park, Commentary, L. of the Sea Inst. Proc. (1979).

Chapter III Addressing and Resolving the Dokdo Matter Jon M. Van Dyke* I. Korea’s Claim to Sovereignty Over Dokdo Is Very Strong Korea’s claim to sovereignty over Dokdo is substantially stronger than the claim of Japan, based on the principles that tribunals apply to address and resolve such disputes.1 Korea has a long historical claim, going back, according to some reports, 1500 years into the Silla Kingdom period. Maps drawn by prominent Japanese cartographers in the late 1700s and early 1800s seemed to recognize that Dokdo was part of Korea. In 1877, the Japanese Dajokan instructed the Home Ministry that “our country has nothing to do with” Dokdo and Ulleungdo. On October 25, 1900, the Korean government promulgated Imperial Ordinance No. 41, which established the county of Ulleungdo and clearly included Dokdo within its boundaries. • Japan claimed sovereignty over Dokdo on January 28, 1905, stating that this territory was “terra nullius . . . there being no evidence of its being occupied by any country.” This Japanese statement that Dokdo was “terra nullius” (referring to land that is unclaimed by any country) is significant, because it serves as an acknowledgement that Japan had no meaningful claim to Dokdo based on historical activities prior to January 28, 1905. • Japan’s 1905 claim to Dokdo was made during the period when Japan was engaged in unrelenting efforts to exert increasing military and civilian control over Korea, which led to the establishment of a protectorate over Korea in November 1905 and formal annexation in 1910. On February 23, 1904, eleven months prior to Japan’s claim to Dokdo, Japan sent troops into Seoul •

* Professor of Law and Carlsmith Ball Faculty Scholar, William S. Richardson School of Law, University of Hawai‘i at Manoa. 1 The materials on sovereignty over Dokdo in the paragraphs that follow are explained in detail in Jon M. Van Dyke, Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary, 38 Ocean Dev. & Int’l L. 157, 157–224 (2007).

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and compelled Korea to sign a protocol agreement giving Japan effective control over Korea’s governmental activities. This protocol marked the moment when Korea lost its ability to act independently on the world stage. As Han Key Lee has written: “Korea was deprived of its rights to conduct diplomacy and its sovereignty and independence by this protocol signed on February 23, 1904, not by the Protectorate Treaty concluded on November 17, 1905.” In order to gain support for its claim to Dokdo, Japan would have to overcome the almost impossible hurdle of convincing others that its annexation of the islets was not part of its expansionist military activities in Northeast Asia, which led to the subjugation of Korea and caused enormous suffering to the Korean people. As the late Judge Choon-ho Park put it, Japan stole “the whole bakery and now wants the crumbs.” The Korean government did attempt to protest Japan’s claim to Dokdo in 1906, but its independence had been swallowed up by Japan by then, and its voice was muffled. In 1946, after World War II, the Allied Powers occupying both Japan and Korea issued instructions that separated Dokdo from Japanese territory. But the 1951 Peace Treaty between Japan and the Allied Powers made no specific mention of Dokdo (perhaps because of the Korean War and the dynamics of Cold War politics). Once Korea became freed from the occupation, it quickly and vigorously reasserted its claim to Dokdo in 1952, built a guarded lighthouse on it in 1954, and has maintained a presence there ever since. In 1965, the Republic of Korea and Japan normalized their diplomatic relations in a formal treaty. Japan sought to address Dokdo during the negotiations that led to this treaty, but Korea refused. Dokdo was never listed as an official agenda item for discussion during the protracted negotiations that produced this treaty, and the issue is ignored in the treaty. Japan’s willingness to enter into the normalization treaty without pressing its claim to Dokdo might be seen as a waiver by Japan of its claim and an acceptance of (or acquiescence to) Korea’s sovereignty over Dokdo. Japan has, however, continued to assert its claim to sovereignty regularly, and has suggested that the matter be submitted to the International Court of Justice (ICJ) for resolution. Japan’s willingness to submit the Dokdo matter to the Court is inconsistent with its reluctance to submit its dispute with China over the Senkaku (Diaoyudao) Islands or its dispute with Russia over the Northern Territories to the Court.

The international tribunals that have examined disputes over small islands almost always focus on acts related to sovereign governance undertaken by the claimants during the past century. Korea’s claim would thus prevail over Japan’s (1) because Korea exercised acts of sovereignty over Dokdo in the years prior to 1905, (2) because official Japanese pronouncements in the late 19th century

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noted that Japan did not possess the islets, (3) because Japan’s 1905 statement that Dokdo was “terra nullius” acknowledged its own failure to establish sovereignty prior to that time, and (4) because Korea’s consistent occupation of Dokdo since the early 1950s has served to reinforce its earlier acts of sovereignty. Korea’s position is also strengthened by the geography of the situation – Dokdo is 88 kilometers from Ulleungdo and can be seen from Ulleungdo on a clear day, but is 158 kilometers from Japan’s Oki Islands and can never be seen from them.

II. Dokdo and the Maritime Delimitation of the East Sea Because of the small size of Dokdo, its essential uninhabitability, and its limited economic value, it should not be considered in delimiting the maritime boundary in the East Sea between Korea and Japan. This boundary should be drawn at the equidistance or median line between Korea’s Ulleungdo and Japan’s Oki Islands. This delimitation would put Dokdo on the Korean side of the boundary, and would reinforce the logic of Korea’s claim to the islets under the contiguity approach. The conclusion that Dokdo should not be considered when the maritime boundary of the East Sea is being delimited can be reached through two separate approaches. First, Dokdo is a “rock” that cannot sustain human habitation or an economic life of its own, and hence does not qualify under Article 121(3) of the United Nations Law of the Sea Convention2 to generate an exclusive economic zone or a continental shelf. Second, even if Dokdo were not a “rock” under Article 121, it still should not affect the boundary delimitation because of its very small size. Each of these approaches needs to be explained separately.

III. Dokdo is a “Rock” Article 121 of the 1982 Law of the Sea Convention says that islands can generate 200-nautical-mile exclusive economic zones (EEZs), just as continental land masses do, but explicitly states that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” The reason for denying EEZs to uninhabited locations has been explained by Judge Budislav Vukas of the International Tribunal for 2

United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF.62/122, reprinted in 21 I.L.M. 1261 (1982); The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, U.N. Sales No. E.83.V.5 (1983).

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the Law of the Sea in an opinion written in the Volga case in 2002.3 He wrote that the underlying purposes for giving exclusive rights over offshore resources to coastal states through the establishment of the exclusive economic zone was to protect the economic interests of the coastal communities that depended on the resources of the sea, and thus to promote their development and enable them to feed themselves. This rationale does not apply to uninhabited islands because they have no coastal fishing communities that require such assistance. Similarly, the late Professor Jonathan Charney explained in a 1999 article that “the primary purpose of Article 121(3) was to ensure that insignificant features, particularly those far from other states, could not generate broad zones of national jurisdiction in the middle of the ocean.”4 Professor Charney went on to say that: The common spaces are diminished by using such rocks as a basis for placing a maritime area under a coastal state’s jurisdiction when it would otherwise be beyond national jurisdiction. This practice would directly conflict with the objective of Article 121(3): to protect the commons from nationalization based on minor features with little significance other than being above water at high tide.5

Professor Charney has also explained that “[o]utside state support for a noneconomically viable occupation would be inconsistent with this requirement [of being able to sustain ‘economic life of their own.’]”6 Although the terms “rock,” “human habitation,” and “economic life of their own,” are not defined in the Convention, state practice is providing precedents that help develop the governing definition. Among the examples that have emerged are: Rockall. An important case study relevant to the meaning of Article 121(3) occurred in 1997 when the United Kingdom renounced any claim to an EEZ or continental shelf around its barren granite feature named Rockall which juts out of the ocean northwest of Scotland.7 Rockall is a towering granite feature measuring about 61 meters (200 feet) in circumference, and is about seventy feet 21 meters (70 feet) high. It is located some 300 kilometers (190 miles) from the British territory of St. Kilda off the Outer Hebrides of Scotland, some 380 kilo-

3 4

5 6 7

“Volga” (Russ. v. Austl.), Declaration of Judge Vukas, ITLOS Case No. 11 (Dec. 23, 2002). Jonathan I. Charney, Rocks that Cannot Sustain Human Habitation, 93 Am. J. Int’l L. 863, 866 (1999). Id. at 876. Id. at 871 n. 34. Fishery Limits Order, 1997, S.I. 1997/1750 (U.K.); see generally David H. Anderson, British Accession to the UN Convention on the Law of the Sea, 46 Int’l & Comp. L.Q. 761, 778 (1997) (citing House of Commons Hansard, vol. 298, written answers, col. 397).

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meters (240 miles) from the Irish coastal county of Donegal, some 320 miles from the Faroes, and some 400 miles from Iceland. The Senkakus/Diaoyutai Islands. Another example of state practice concerns these eight uninhabited island features in the East China Sea 170 kilometers northeast of Taiwan, which are now controlled by Japan but are also claimed by Taiwan and by the People’s Republic of China. Altogether, they have a land area of seven square kilometers; the largest (Diaoyutai/Uotsurishima) has an area of 4.3 square kilometers, with two peaks rising to about 1100 feet, but has no anchorages for any but the smallest ships to use for landings. Historically, these outcroppings have been used only as navigational aids. In 1970, after its claim to the Daioyutai/Senkakus based on an extension of its continental shelf had been protested by Japan, the Republic of China (Taiwan) issued a reservation when ratifying the 1958 Convention on the Continental Shelf,8 stating that in “determining the boundary of the continental shelf of the Republic of China, exposed rocks and islets shall not be taken into account.”9 One prominent scholar from the People’s Republic of China (Ji Guoxing) has reported that the current position of the People’s Republic of China is similar: “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 a continental shelf.”10 Okinotorishima. More recently, and more confrontationally, a series of incidents have occurred near the tiny insular structure called Okinotorishima, sometimes referred to as Douglas Reef, which was claimed by Japan in 1931. This reef system is 1,740 kilometers south of Tokyo, and is thus the southernmost Japanese possession. At high tide, only two natural structures remain some 70 centimeters above water; these features in their natural form were about the size of two king-size beds (or four-and-a-half tatami mats). But since 1987, Japan has been trying to protect these tiny pieces of real estate from being washed away by erosion and from sinking into the sea by spending many billions of yen to bring vast amounts of wave-dissipating concrete blocks and cement to the location. China has acknowledged Japan’s possession of this islet, but has strongly protested against the claim that it can generate an EEZ, con-

8

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Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, T.I.A.S. 5578, 499 U.N.T.S. 311. See Clive Symmons, The Maritime Zones of Islands in International Law 136, 270 n. 539 (1979) (citing Donald R. Allen & Patrick H. Mitchell, The Legal Status of the Continental Shelf of the East China Sea, 51 Or. L. Rev. 789, 808 (1972)). Ji Guoxing, The Diaoyudao (Senkaku) Disputes and Prospects for Settlement, 6 Korean J. Def. Analysis 285, 306 (1994).

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tending that it is a “rock” and not an “island” under Article 121(3) of the Law of the Sea Convention.11 Maritime Delimitation Between Nicaragua and Honduras (ICJ 2007).12 This dispute involved, among other things, the sovereignty of four small cays (Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay) located just north of the 15th parallel, about 30 miles offshore in the Caribbean Sea. These features were described as “small, low islands composed largely of sand,” which “remain above water at high tide.” A number of wooden buildings are found on these cays, which are used by Jamaican fishers. Despite the periodic inhabitation of these islets, both Nicaragua and Honduras informed the International Court of Justice that they had agreed not to make any claim that the cays could generate “any maritime area beyond the territorial sea.” The Court then determined that Honduras had the better claim to sovereignty over the cays, and proceeded to draw territorial sea enclaves around them, but otherwise ignored them in determining the maritime boundary between the two countries. The resolution of this dispute thus serves as another example of state practice where countries have concluded that small islets are not entitled to generate exclusive economic zones and should be ignored in delimiting a maritime boundary. Clipperton Atoll. Clipperton Atoll (Isla de La Pasion) is a semi-rectangular atoll with 1.6 square kilometers of land, located 1,120 kilometers southwest of Mexico. It was awarded to France in a 1931 arbitration.13 Although small groups have stayed on the atoll for periods of time to exploit guano, it has never been inhabited by a permanent population.14 France claims an exclusive economic zone around Clipperton, but Mexico has strongly protested the claim, and France has apparently agreed to allow Mexican vessels to fish in the waters that would constitute the EEZ, thus acquiescing to the protests. Isla Perejil (Parsley). This barren uninhabited rocky islet is 200 meters offshore from the southern coast of Morocco, but has been claimed by Spain since 1668 and seems now to have the status of a neutralized and demilitarized 11

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Japan to Protest China Survey Near Okinotori – Exclusive Economic Zone in Question, Japan Times, May 10, 2004, available at http://search.japantimes.co.jp/cgi-bin/nn20040510a3.html. Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicar, v. Hond.) (Judgment of Oct. 8, 2007), available at http://www.icj-cij.org/docket/ files/120/14075.pdf (last visited Sept. 28, 2009). Difference Relative to the Sovereignty over Clipperton Island (Fr. v. Mex.), 2 R.I.A.A. 1105 (Perm. Ct. Arb. 1931), reprinted in 26 Am. J. Int’l L. 390 (1932). See generally Jon Van Dyke & Robert A. Brooks, Uninhabited Islands and the Ocean’s Resources: The Clipperton Island Case, in Law of the Sea: State Practice in Zones of Special Jurisdiction 351 (Thomas A. Clingan Jr. ed., 1982).

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zone after a skirmish between Spain and Morocco in 2002. The commentator F.A. Ahnish has explained that “[i]t is unreasonable to argue . . . that the rock of Perejil . . . should be entitled to a full belt of territorial sea” because “it is a small, uninhabited rock and situated only 200 metres from the Coast of Morocco.”15 Ilhas Selvagens (Savage Islands). These uninhabited islands are Portuguese, located half way between Madeira (also Portuguese) and the Canary Islands (which are Spanish) in the Atlantic Ocean. Portugal has claimed an EEZ around the Ilhas Selvagens, but Spain has protested this claim, asserting that these islets are “rocks” under Article 121(3) of the Law of the Sea Convention. Pedra Branca. This tiny islet (also known as Horsburgh Light) was awarded to Singapore by the ICJ in May 2008,16 and then in July, Singapore claimed that it could draw an EEZ from it. It has a lighthouse on it but has never been inhabited. Because of its location, if it were able to generate an EEZ, such a claim would impact the EEZ of Malaysia, and Malaysia has strongly protested Singapore’s claim, arguing that Pedra Branca must be considered to be a “rock” under Article 121(3). Datuk Cheah Kong Wai, the Director-General of the Maritime Institute of Malaysia, explained in July 2008 that to generate an EEZ a feature must have “a habitable environment that allows humans to live independently based on resources available naturally. Humans should have access to basic necessities such as fresh water, without having to rely on sources from outside and also be able to carry out economic activities such as farming, fishing or livestock rearing.” He added that operating a lighthouse does not qualify as an “economic activity” because “it is an act of facilitating navigation, a requirement [imposed by the Law of the Sea Convention] on states bordering a strait.”17 These examples demonstrate that when countries make claims for EEZs around small uninhabited island features they are frequently challenged by their neighbors. Dokdo has stark physical beauty, military personnel have been stationed on it for the past several decades, and fishing families occasionally take up temporary residence on it. But its two main islets and smaller outcroppings remain essentially barren, rocky, and uninhabitable. The distinguished Korean 15

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Faraj Abdullah Ahnish, The International Law of Maritime Boundaries and the Practice of States in the Mediterranean Sea (1993). Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay. v. Sing.) (Judgment of May 23, 2008), available at http://www.icj-cij.org/docket/files/130/14492 .pdf (last visited Sept. 26, 2009). Pedra Branca EEZ: Singapore’s Claim on Shaky Ground, New Straits Times, July 24, 2008, available at http://voiceofmalaysian.com/tag/pedra-branca-eez-singapore%E2%80%99s-claimon-shaky-ground (interview with Datuk Cheah Kong Wai, the Director-General of the Maritime Institute of Malaysia).

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scholar, Choung Il Chee, wrote in his 1999 book that Dokdo “is a rocky island and unsuitable for human inhabitation.”18 Similarly, Han Key Lee has written that “this barren group of islets [is] unfit for sustained human habitation.”19 Professor Jin-Hyun Paik of Seoul National University wrote in 1998 that “the natural conditions of the Dokdo Islands would suggest that these islands might not generate their own EEZs or continental shelves.”20 It would appear, therefore, that Dokdo should be considered to be a “rock” that cannot generate an exclusive economic zone. Some have argued otherwise by quoting from Professor Charney’s 1999 article where he speculated that economic activity in the waters surrounding an islet could arguably constitute an “economic life of their own” to allow the islet to generate an EEZ.21 This bootstrapping approach has not been accepted, however, and when it has been asserted – by, for instance, Japan with regard to Okinotorishima – it has met with strong resistance by neighboring countries, as explained above.

IV. Even If Dokdo Were Accepted as an “Island” Rather Than a “Rock,” It Would Not Play a Substantial Role with Regard to the Delimitation of the Maritime Boundary in the East Sea Even if Dokdo were somehow to be considered to be an “island” rather than a “rock” under Article 121, it would not be given much importance by a tribunal asked to delimit the maritime boundary between Korea and Japan because of its tiny size and relative insignificance. Tribunals have repeatedly ignored or slighted islands in maritime delimitations, even ones that have substantial populations residing on them. Among the many examples that can be listed include the following: •

The North Sea Continental Shelf Case (1969),22 where the International Court of Justice stated that a boundary delimitation should “ignor[e] the presence of islets, rocks and minor coastal projections [that would have a] disproportionally distorting effect.”

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Choung Il Chee, Korean Perspectives on Ocean Law Issues for the 21st Century (1999). Han Key Lee, Tokdo, in Han’guk ui Yongt’o [Korea’s Territory] (1969) (S. Korea), reprinted and translated in Korea’s Territorial Rights to Tokdo in History and International Law, 29 Korea Observer 1 (1998). Jin-Hyun Paik, Evolution of Maritime Boundary Delimitation Law and Its Implications on Northeast Asia Law (unpublished paper delivered at the 1st Annual Korean-US Marine Policy Forum, Seoul) (Oct. 22–23, 1998) (on file with author). Charney, supra note 4, at 867–69. North Sea Continental Shelf (F.R.G. v. Den./ Neth.), 1969 I.C.J. 3 (Feb. 20).

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The Anglo-French Arbitration (1977),23 where the arbitral tribunal rejected the argument made by the United Kingdom that the Channel Islands (Jersey and Guernsey) had the capacity to generate a continental shelf independent of the English and French shelves, and gave only a “half-effect” to Britain’s Scilly Islands. The Tunisia-Libya Continental Shelf Case (1982),24 where the ICJ completely ignored the island of Jerba (which now has more than 100,000 inhabitants) and gave the islands of Kerkennah only a half effect, even though they then contained a population of 15,000 and cover 180 square kilometers. The Gulf of Maine Case (1984),25 where a chamber of the ICJ ruled that Seal Island, off the southwest coast of Nova Scotia in Canada, should be given only half-effect in drawing the maritime boundary, even though this island is four kilometers long and was then inhabited year round. The Libya-Malta Case (1985),26 where the ICJ ruled that tiny and uninhabited Filfla Island, located five kilometers south of Malta’s main island, should be ignored altogether in determining the boundary between the two countries (and it also adjusted the boundary line toward Malta to give Libya a larger exclusive economic zone because of Libya’s longer coastline as compared to that of Malta). The Eritrea-Yemen Arbitration,27 where the arbitral tribunal gave no effect whatsoever to the Yemenese island of Jabal al-Tayr and those in the al-Zubayr group, because their “barren and inhospitable nature and their position well out to sea . . . mean that they should not be taken into consideration in computing the boundary line.” The Qatar-Bahrain Case,28 where the ICJ ignored completely the small, uninhabited, and barren Bahraini islet of Qit’at Jaradah, situated midway between the main island of Bahrain and the Qatar Peninsula, explaining that “the Court has sometimes been led to eliminate the disproportionate effect of small islands” in drawing maritime delimitation lines. The Court also ignored completely the “sizeable maritime feature” of Fasht al Jarim, which apparently had only “a minute part” above water at high tide, because using the Delimitation of the Continental Shelf Between the United Kingdom of Great Britain and Northern Ireland and the French Republic (U.K. v. Fr.) 18 R.I.A.A. 95, 18 I.L.M. 397 (1979). Continental Shelf (Tunis. v. Libya), 1982 I.C.J. 18 (Apr. 14). Delimitation of the Maritime Boundary in the Gulf of Maine Area (U.S. v. Can.), 1984 I.C.J. 246 (Oct. 12). Continental Shelf (Libya v. Malta), 1985 I.C.J. 13 (Mar. 21). Award of the Arbitral Tribunal in the Second Stage of the Proceeding (Maritime Delimitation) (Eri. v. Yemen), 119 I.L.R. 147 (Perm. Ct. Arb. 1999). Maritime Delimitation and Territorial Question between Qatar and Bahrain, 2001 I.C.J. 40 (July 1).

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feature as a basepoint would “distort the boundary and have disproportionate effects.” • The Romania-Ukraine Case (2009),29 where the ICJ completely ignored Ukraine’s Serpents’ Island (Ostrov Zmeinyy), a 0.17 square kilometer feature 35 kilometers east of the Danube Delta in the Black Sea. This decision is certainly relevant to the Dokdo situation, because the features are virtually the same size (Dokdo is 0.l8 square kilometers), both are barren and have never been inhabited by any permanent population, and both are in a location that could be seen as material to the maritime boundary between neighboring countries. The ICJ allowed Serpents’ Island to have a 12-nautical-mile territorial sea, but otherwise ruled it had no bearing on the maritime boundary, because it was too small to have any effect on the length of Ukraine’s coastline and was too far from Ukraine’s coastline to be considered part of the coast. The Court found it unnecessary to determine whether it was a “rock” under Article 121(3), but noted (in paragraph 185) that “the Court may on occasion decide not to take into account of very small islands or decide not to give them their full potential entitlement to maritime zones, should such an approach have a disproportionate effect on the delimitation line under consideration,” citing Libya/Malta (1985), Qatar/Bahrain (2001), and Nicaragua/ Honduras (2007). The Court then concluded “that, in the context of the present case, Serpents’ Island should have no effect on the delimitation in this case, other than that stemming from the role of the 12-nautical-mile arc of its territorial sea.” Other decisions where islands have been given a reduced role in the delimitation of maritime boundaries include the Guinea/Guinea-Bissau Case (1986),30 the Jan Mayen Case (1993),31 and the St. Pierre and Miquelon Arbitration (1992).32 Professor Charney summarized all these decisions in his 1999 article by saying that “third–party tribunals have ignored or heavily discounted small islands because of their size, even if they were not Article 121(3) features.”33 Thus, whether or not Dokdo is a “rock” under Article 121(3), it almost certainly would be given no effect or only a very limited effect in any maritime delimitation line drawn by a judicial or arbitral tribunal. 29

30

31

32

33

Maritime Delimitation in the Black Sea (Rom. v. Ukr.) (Judgment of Feb. 3, 2009), available at http://www.icj-cij.org/docket/files/132/14987.pdf (last visited Aug. 26, 2009). Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, 25 I.L.M. 252 (1986). Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 I.C.J. 38 (June 14). Delimitation of the Maritime Area between Canada and France (St. Pierre and Miquelon), 31 I.L.M. 1149 (1992). Charney, supra note 4, at 876.

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V. Conclusion: What Should Korea Do Now? Although it seems almost certain, based on the application of governing legal principles to the historical record, that an international tribunal would rule that Korea has sovereignty over Dokdo, it is understandable that Korea is reluctant to submit the matter to an international court, or even to acknowledge that this matter is a “dispute.” But it cannot be denied that the Dokdo matter is a festering problem that makes it difficult for Korea and Japan to work together on issues of importance, especially regarding the development of resources in the East Sea. Japan seems to be reluctant to abandon its claim to Dokdo, because it worries this action might weaken its claims to other islands and to maritime space in other areas. Japan’s claims to the Senkaku (Diaoyutai) Islands northeast of Taiwan and to the Northern Territories north of Hokkaido are probably much more important to it than its claim to Dokdo, but Japanese leaders worry that a concession on Dokdo would have ripple effects on its other claims. Japan also claims 200-nautical-mile exclusive economic zones around small islands such as Okinotorishima, Minamitorishima, and Iwo Jima (Ioto) in the northwestern Pacific, and its claim to an EEZ around Okinotorishima has been vigorously challenged by China. Japan is reluctant to do anything that might undercut these claims, and Japanese political leaders believe they will effectively end their political careers if they are seen as having given up Japanese territory needlessly. Any solution to be effective and enduring must thus be seen as a “win-win” situation for both countries. Korea’s present strategy is to promote understanding of Korea’s historical links to Dokdo and thus, the validity of its sovereignty over these islets. This strategy is sound, but it is unlikely to make Japan’s claim disappear anytime soon. To bring some earlier closure, Korea might consider trying a “package deal” approach, in which the two countries would address a number of issues together, so that Japan could be seen as having prevailed on some important issues while giving way on other issues, such as its claim to sovereignty over Dokdo. The issues that could be addressed together might include the status and continuation of the joint development zone between Japan and Korea (located in the East China Sea southeast of Cheju) and the maritime delimitation of the East Sea. Korea could, for instance, agree that Dokdo should be ignored in the maritime delimitation of the East Sea, which, as explained above, would almost certainly be the approach taken by any judicial or arbitral tribunal. This agreement would lead to the conclusion that the East Sea should be divided by the median line between Ulleungdo and Japan’s Oki Islands, which would still leave Dokdo clearly on the Korean side of the line.

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Korea might also reassess its claim, based on the theory of natural prolongation, to an extended continental shelf in the East China Sea, which led to the establishment of a joint development zone there three decades ago. The natural prolongation theory has been utilized infrequently in recent maritime delimitations. Other issues related to trade, the environment, and compensation for the Korean “comfort women” might also be packaged together in these talks. A composite settlement could clear the decks on a series of controversies and establish the framework for close neighborly ties. Such an innovative “thinking-outside-the-box” approach could promote peace and prosperity in the region, allow for the rational development of the resources of the East Sea, and establish a better life for the young people in both countries.

Chapter IV Territorial Disputes in East Asia, the San Francisco Peace Treaty of 1951, and the Legacy of U.S. Security Interests in East Asia Seokwoo Lee I. Introduction In 1895, Japan signaled its intention to join the world’s great colonial powers by embarking on an aggressive campaign of territorial expansion in East Asia.1 This campaign, though successful on its own terms, spread death and misery to millions of people living in the acquired territories. Finally, in 1945, Japan’s empire imploded. This chapter argues that while the post-war period offered the opportunity for the complete and unambiguous resolution of territorial questions regarding Japan, the lack of precision in key diplomatic documents, especially the San Francisco Peace Treaty of 1951, allowed certain territorial disputes to arise between Japan and its neighbors. For example, Japan and Russia both claim sovereignty over the Kurile Islands, a small group of islands, currently occupied by Russia, lying to the north of Hokkaido, the northernmost of Japan’s four main islands. Additionally, Japan, China, and Taiwan all claim sovereignty over eight uninhabited islands in the East China Sea known as the Senkaku Islands. Finally, Japan and Korea both claim sovereignty over the Liancourt Rocks, a pair of rocky islets in the Sea of Japan/East Sea. The Liancourt Rocks are currently occupied by Korea.

1

The geographical definition of East Asia used in this chapter encompasses Northeast Asia, which includes the East China Sea and the Sea of Japan/East Sea. It is surrounded by the People’s Republic of China (hereinafter China), the Republic of China (hereinafter Taiwan), Japan, North Korea, South Korea (hereinafter Korea, unless otherwise specified), and Russia. The order of the reference to the disputants in this chapter is based on the current occupant country first and the counter disputants later. Regarding the name of the islands in dispute, this chapter uses internationally known names or the names used in the current occupant country.

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This chapter first examines the historical background of each dispute including the bases for the claims made by the various parties. In the case of the dispute between Russia and Japan over the Kurile Islands, treaties executed between the two countries in 1855 and 1875 are the starting point of the discussion. Questions remain as to whether the San Francisco Peace Treaty had the effect of reinstating the terms of pre-war treaties, and if so, whether the treaties themselves were precise enough to put the conflict to rest. The claimants disagree over who first discovered and effectively occupied the Senkaku Islands and whether they were terra nullius when Japan incorporated the islands in January 1895. In the same context, it is also questionable whether China ceded the Senkaku Islands along with Taiwan to Japan under the Shimonoseki Treaty after being defeated in the Sino-Japanese War in May 1895. The question also remains as to whether the islands reverted to China after Japan’s defeat in 1945, were incorporated into Taiwan in 1949, or were restored to Japan as part of Okinawa in 1972. As to the Liancourt Rocks, Japan specifically affirmed its claim to the Liancourt Rocks by officially incorporating them into Shimane Prefecture in 1905. Japan opines that the Liancourt Rocks were terra nullius in 1905, and therefore subject to occupation, while Korea asserts that historical documentation proves that the Liancourt Rocks belonged to Korea prior to Japan’s alleged 1905 incorporation, thereby refuting Japan’s contentions that the Liancourt Rocks were terra nullius. Korea regained its independence in the aftermath of the Second World War, and Japan specifically renounced its claims to several named islands in the Sea of Japan/East Sea when it signed the San Francisco Peace Treaty. However, the treaty was silent regarding the status of the Liancourt Rocks. Thus, for almost fifty years the two sides have exchanged unilateral declarations of sovereignty over the tiny islands. This chapter analyzes the diplomatic and political maneuvering that allowed these territorial questions to remain unanswered. Included in this section is a discussion of the declarations of intent issued by the Allied Powers late in the war when it was apparent that Japan would be defeated, i.e., the Cairo Declaration, the Yalta Agreement, and the Potsdam Proclamation. These resolutions provided the general framework for the San Francisco Peace Treaty. The evolution of the San Francisco Peace Treaty itself, as revealed in a series of interim drafts, is also examined. The ongoing territorial disputes in East Asia, as this research demonstrates, involve intertwined political and legal issues. In other words, these three territorial disputes have multifaceted implications for the disputants on the one hand, and for the relations between the disputants and the interested powers, notably the United States, on the other hand. The rivalry between the United States and the former Soviet Union in the period of the Cold War; the complicated stance of the United States in the cross-strait relations between China and Taiwan; and the hands-off policy of the United

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States in the territorial disputes between Korea and Japan are only partial examples of U.S. involvement in the territorial disputes in East Asia. This situation is complicated by the fact that regional stability in East Asia has been largely influenced by U.S. security interests. Finally, this chapter offers observations regarding the future course that the disputes might take.

II. The Current Positions of Each Claimant on the Territorial Disputes on Islands in East Asia The current position of each claimant on the territorial disputes on islands in East Asia vividly illustrates a deadlock situation. For example, as to the territorial dispute over the Kurile Islands, Russia has emphasized that the inviolability of Russia’s border remains “its principle,”2 and the Russian parliament also stressed that it will not ratify any agreement on the transfer of any of the Kurile Islands to Japan, and the settlement of the issue is not “a matter of today, tomorrow or even the day after tomorrow.”3 Russian Foreign Minister Igor Ivanov further announced that Russia planned to explore mutually acceptable forms of cooperation with Japan over the disputed Kurile Islands, but that, “We intend to solve these questions without detriment to the sovereignty and territorial integrity of the Russian Federation.”4 President Yeltsin of Russia once said that the problem of the four islands should be put aside for the next generation of leaders to resolve.5 Meanwhile, Japanese Prime Minister Miyazawa said that “the disputed ‘Northern Islands’ [should be] returned to Japanese control,”6 and Japanese Foreign Minister, Taro Nakayama, urged Russia to make a “political decision to end the territorial dispute over the [Kurile Islands].”7 Concerning the disputed Senkaku Islands, the Director of the Treaty and Legal Affairs Department of Taiwan’s Foreign Affairs Ministry stated that “[It]

2

3

4

5

6

7

See ‘Interference’ Claims, Itar-Tass News Agency, Mar. 30, 1999, http://www.dur.ac.uk/ibru/ resources/newsarchive by search term ‘Kurile’ [hereinafter IBRU News Database/Kurile]. See “Will Not Transfer” Kuril Island to Japan, Itar-Tass News Agency, May 22, 1992, IBRU News Database/Kurile. See Peace Treaty Discussions in Tokyo, Itar-Tass News Agency, Feb. 10, 2000, IBRU News Database/Kurile. See Yeltsin on Kurile Islands, Kyodo News Service, June 13, 1991, IBRU News Database/ Kurile. See Statement on Northern Islands, Kyodo News Service, Feb. 3, 1992, IBRU News Database/ Kurile. See Japan Appeals for Decision on ‘Kuriles’, Kyodo News Agency, Oct. 11, 1991, IBRU News Database/Kurile.

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is indisputable that the islands are part of the territory of [Taiwan],”8 and that “Taiwan will continue to defend its national sovereignty and fishing rights by protecting our territorial integrity and solving disputes rationally.”9 A spokesman for the Chinese Foreign Ministry also emphasized that “[The Senkaku] Islands belong to China, this is an historical fact,”10 and further went on to say that “Beijing [is] sticking to the principle stated by Deng Xiaoping years ago that the territorial dispute should be shelved and both sides should go into joint development, [and] the islands dispute . . . would be resolved through bilateral negotiations ‘when conditions are ripe.’”11 However, the Foreign Minister of the current occupant country, Japan, stated that “[The Senkaku Islands] in question had been Japanese territory historically and legally and no territorial dispute exists . . . and therefore there was no need for talks . . . on the issue,”12 and the Japanese Prime Minister, Ryutaro Hashimoto, further stressed that the “[Senkaku Islands] were indigenous to our nation, and no territorial dispute over the islands exists.”13 The official stance on the disputed Liancourt Rocks stated by the Korean Ministry of Foreign Affairs is that: “[Liancourt Rocks] cannot be subject to any diplomatic negotiations or review by the International Court of Justice inasmuch as [they are] an integral part of Korean territory historically, geographically and legally . . ., and international law supports it. We have been exercising real territorial and jurisdictional rights over the islets and therefore, they are not subject to negotiations.”14 Meanwhile, Japanese Foreign Minister Ikeda maintained that “[Liancourt Rocks] are historically and in view of the international law, an integral part of Japan,”15 and further, Japanese Prime Minister Hashimoto restated in the Japanese Diet that “Japan’s position over the [Liancourt Rocks] . . . had been

8

9

10

11 12 13

14

15

See Taiwan Restates Islands Claim, Central News Agency (Taipei), Apr. 19, 1996, http:// www.dur.ac.uk/ibru/resources/newsarchive by search term ‘Senkaku’ [hereinafter IBRU News Database/ Senkaku]. See Japanese Shrine Built on Diaoyu Islands, Xinhua Domestic Service, Apr. 29, 2000, IBRU News Database/Senkaku. See Senkaku Islands Dispute, Kyodo News Service, Dec. 16, 1996, IBRU News Database/ Senkaku. Id. Id. See Tokyo Restates Claim to Islands, Kyodo News Service, May 10, 1996, IBRU News Database/Senkaku. See Dispute over Tok-To/Takeshima, Yonhap News Agency (Seoul), Mar. 2, 1996, http:// www.dur.ac.uk/ibru/resources/newsarchive by search term ‘Tok-Do and Takeshima’ [hereinafter IBRU News Database/Tok-Do and Takeshima]. Id.

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consistent and that Japan will continue diplomatic efforts to resolve the dispute peacefully.”16 From analysis of these statements and counter-statements the following positions of each claimant on the territorial disputes on islands in East Asia can be drawn. First, among the stances on the respective territorial disputes held by the current occupants, slightly different nuances are recognizable. Against the respective territorial disputes, Japan (in the case of Senkaku Islands) and Korea (in the case of Liancourt Rocks) have refused to recognize the existence of the territorial disputes, and thus maintained that there is no reason to negotiate. Meanwhile, as mentioned earlier, the Russian position on the issue of the Kurile Islands can be said to be that Russia recognizes the existence of the territorial dispute between Russia and Japan, but refuses to take any action on the issue. Second, the stances taken by the counter disputants can be categorized in the following way. Japan (in the cases of the Kurile Islands and Liancourt Rocks), and China and Taiwan (in the case of Senkaku Islands) maintain that the disputed islands are, respectively, an integral part of their country. However, Japan, and China and Taiwan prefer to approach the issue by diplomatic efforts, and thus to resolve the disputes peacefully. Third, despite these territorial disputes, each claimant reaffirms its existing friendly and co-operative relations with the other counter disputant(s). Each further agrees to strive to resolve the frictions stemming from the territorial issue,17 though there has not been any substantial progress made in this connection save in respect of the Kurile Islands.18

16 17 18

See supra note 13. See supra note 14. After President Yeltsin’s visits to Japan in September 1992 and October 1993, the Tokyo Declaration was signed, which established “the clear basis for negotiations toward an early conclusion of a peace treaty through the solution of the territorial issue on the basis of historical and legal facts and based on the documents produced with the two countries’ agreement as well as on the principles of law and justice.” Thereafter, substantial progress was made between the two parties, including the Russia – Japan Summit Meeting on the occasion of the Moscow Nuclear Safety Summit in April 1996; Russia – Japan Summit Meeting on the occasion of the Denver Summit in June 1997; Russia – Japan Summit Meeting in Krasnoyarsk in November 1997; Russia – Japan Summit Meeting in Kawana in April 1998; Japanese Prime Minister Obuchi visit to Russia in November 1998 (signed the Moscow Declaration on Establishing a Creative Partnership between Japan and the Russian Federation, and Agreement on the Establishment of a Subcommittee on Border Demarcation and a Subcommittee on Joint Economic Activities within the Framework of the Russian – Japanese Joint Committee on the Conclusion of a Peace Treaty). Ministry of Foreign Affairs, Gov’t of Japan, Japan’s Northern Territories (1999), http://www.mofa.go.jp/region/europe/russia/territory/index.html (last visited Oct. 8, 2009). The measures taken by the two parties to create an appropriate environment for negotiations toward solving the territorial issue are: mutual visits between Japanese citizens and the

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III. Territorial Disputes in East Asia, the San Francisco Peace Treaty of 1951, and the Legacy of U.S. Security Interests in East Asia 1. Territorial Disputes between Russia and Japan Concerning Kurile Islands a. Drafts of the Territorial Clause of the San Francisco Peace Treaty and their Implications The territorial disposition of the Kurile Islands was addressed in the San Francisco Peace Treaty. Article 2(c) provided that “Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of September 5, 1905.”19 Since the San Francisco Peace Treaty provides only for a renunciation of Japanese sovereignty over the Kurile Islands without mentioning by name who should own them, a clarification of the effect of the legal disposition of these territories is required. Thus, allied to the basic rules of treaty interpretation as provided for in the Vienna Convention on the Law of Treaties20 (hereinafter Vienna Convention), each draft of the territorial clauses of the San Francisco Peace Treaty will be gone through for that purpose. The territorial clause of the San Francisco Peace Treaty on the Kurile Islands provided that “Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of September 5, 1905,”21 can be interpreted as follows: first, various wartime resolutions, in particular the Yalta Agreement, have significant legal weight in respect of territorial dispositions of the Kurile Islands; second, the Soviet Union is the only recipient of the Kurile Islands envisaged by the Allied Powers; third, there are no agreed definitions of the “Kurile Islands” among the Allied Powers and, even, within the U.S. Department of State; four, due to the significantly contradictory nature of the various drafts of the treaty, and other relevant instruments, the question as to what exactly constituted the Kurile Islands remains unclear; and five, there are strong indications that the Allied Powers preferred not to resolve the matter of the ultimate disposition of the Kurile Islands by the

19

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21

current Russian residents of the Kurile Islands without passports or visas; visits to the graves in the Kurile Islands; and, withdrawal of Russian military troops from the Kurile Islands. Id. Treaty of Peace with Japan, art. 2(c), Sept. 8, 1951, 3 U.S.T. 3169; 136 U.N.T.S. 45, available at http://www.taiwandocuments.org/sanfrancisco01.htm [hereinafter SF Peace Treaty]. Vienna Convention on the Laws of Treaties, May 23, 1980, 1155 U.N.T.S. 331 [hereinafter Vienna Convention]. SF Peace Treaty art. 2(c), supra, note 19.

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Table 1. Territorial Disposition of the Kurile Islands in the Drafts of the San Francisco Peace Treaty Drafts

Territorial Disposition of the Kurile Islands

March 19, 1947

The currently disputed Kurile Islands (Etorofu, Kunashiri, Shikotan, and the Habomais) were to be handed over to the Soviet Union. The currently disputed Kurile Islands were retained by Japan. This draft refrained itself from defining the Kurile Islands that Japan should cede to the Soviet Union. The currently disputed Kurile Islands were retained by Japan. The currently disputed Kurile Islands were excluded from Japanese territory, and to be ceded to the Soviet Union. The currently disputed Kurile Islands were retained by Japan. The Kurile Islands should be transferred to the Soviet Union, but the draft failed to clarify the definition of the Kurile Islands. Etorofu and Kunashiri were recognised as the Kurile Islands, thus should be transferred to the Soviet Union, while Shikotan and the Habomais were to be retained by Japan. These drafts stated Japanese acceptance of the territorial disposition over the Kurile Islands exercised by the Allied Powers, but it also failed to clarify what the reference to Kurile Islands in the provision meant. This draft manifested the cession of the Kurile Islands to the Soviet Union, but it was not clarified what was included in the definition of the Kurile Islands. This draft manifested the cession of the Kurile Islands to the Soviet Union, but it was not clarified what was included in the definition of the Kurile Islands. This draft counted Etorofu and Kunashiri as part of the Kurile Islands to be ceded to the Soviet Union, but Shikotan and the Habomais would be retained by Japan. This draft manifested the cession of the Kurile Islands to the Soviet Union, but it was not clarified what was included in the definition of the Kurile Islands. These drafts manifested a renunciation of Japanese sovereignty over the Kurile Islands without specifying who should own them. The Kurile Islands were not clearly defined.

August 5, 1947 January 8, 1948 October 13, 1949 November 2, 1949 December 8, 1949 December 19, 1949 December 29, 1949; January 3, 1950 August 7, 1950; September 11, 1950 March 12, 1951 March 17, 1951 April 7, 1951

May 3, 1951

June 14, 1951; July 3, 1951; July 20, 1951; August 13, 1951

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San Francisco Peace Treaty and, instead, left it to the future to resolve doubts through the invocation of international solutions. b. Japan’s Renunciation of Sovereignty over the Kurile Islands The status of the Kurile Islands was addressed in the San Francisco Peace Treaty. However, the Allied Powers failed to specify any particular State as the beneficiary of the Japanese renunciation, and therefore, it is unclear how the Allied Powers intended to effect the legal disposition of these territories. In treaties of peace in which the vanquished relinquish territory, such renunciation is generally made either in favour of the country to which the renounced territory is ceded, or in favour of an ultimate recipient, or in favour of the victorious power or powers designated as having the right to dispose of the sovereignty of the renounced territory. In this respect the San Francisco Peace Treaty is unusual in that Japan renounced “all right, title and claim” to the Kurile Islands, without either conveying title to any other power, or specifying any ultimate recipient, or placing the disposition of title explicitly in the hands of the victorious powers. As far as the San Francisco Peace Treaty is concerned, Japan simply renounced its rights to these territories without retaining or obtaining any legal right to the question of the subsequent disposition, seizure, or cession of these territories by any other power or powers. Thus, the salient characteristic of the situation is that Japan, by the San Francisco Peace Treaty, simply removed Japanese sovereignty from the territories in question without specifying to whom the territories were to be ceded or who had a legal right to dispose of the territories prior to definitive cession. Some Allied Powers suggested that the territorial clauses of the San Francisco Peace Treaty should not merely delimit Japanese sovereignty according to the 1945 Potsdam Proclamation, but specify precisely the ultimate disposition of the renounced Japanese territories. Since, however, it would have raised questions to which there are now no agreed answers, the San Francisco Peace Treaty did not determine the ultimate disposition of all the territories which were taken from Japan, including the Kurile Islands. In view of the lack of the Allied Powers’ unanimity on the future status of the Kurile Islands, it was agreed that, in the interests of a speedy settlement, no attempt should be made to reach a final solution of these difficult and complex questions but that the appropriate course was to have the San Francisco Peace Treaty provide only for a renunciation of Japanese sovereignty over certain agreed territories. Clearly, the course was to proceed then, so far as Japan was concerned, leaving the future to resolve doubts by invoking international solutions other than the San Francisco Peace Treaty.22

22

Dept. St. Bull. Sept. 1951, at 454–55.

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c. The Legal Effect of the Soviet Union’s Non-Signing of the San Francisco Peace Treaty Russia claims that the Kurile Islands were promised to the Soviet Union by the Yalta Agreement, and that Japan accepted this decision when it accepted the Potsdam Declaration leading to Japan’s surrender in August 1945. Under the terms of the San Francisco Peace Treaty, Japan relinquished title over the Kurile Archipelago, but the treaty did not transfer these islands to another State. Furthermore, the San Francisco Peace Treaty provided that no State that did not sign the treaty shall derive benefits from it.23 In his speech in the 2nd Plenary Session of the San Francisco Peace Conference on September 5, 1951, Andrei Gromyko, the Delegate of the Soviet Union and Deputy Minister of Foreign Affairs, stated why the Soviet Union would not sign the San Francisco Peace Treaty. Notable among the reasons advanced were the following: questions of territorial disposition regarding the Soviet Union, including the Kurile Islands; legally non-binding status of previous international agreements, including the Yalta Agreement; lack of protective measures against Japanese re-militarism; lack of provision on the withdrawal of foreign occupation forces from Japan, notably U.S. troops; lack of clarity on the restitution of former Chinese territory, and its disposition;24 questions of reparation by Japan for the damage caused during Japanese occupation; and denial of the Soviet Union’s request for veto power over the proceedings at the San Francisco Peace Conference.25 Although, as he warned, the Soviet Union did not sign the San Francisco Peace Treaty, it is hardly conceivable to postulate any other State than the Soviet Union as the intended beneficiary of the Japanese renunciation of the Kurile Islands in the San Francisco Peace Treaty. It is indisputably supported by the history of several prior international agreements and drafting records 23 24

25

SF Peace Treaty art. 25, supra, note 19. All the countries at war with Japan, except China and Taiwan but including the Soviet Union, were invited to the San Francisco Peace Conference beginning September 4, 1951. The reason why neither China nor Taiwan was invited to the Conference was the fact that several of the Allied Powers, most notably the United Kingdom, had already recognized China and could not support Taiwan representing ‘China.’ On the other hand, it was inconceivable to invite China since it was actively engaged in warfare against the UN-sponsored allied coalition in the Korean War. Peter Berton, The Japanese-Russian Territorial Dilemma: Historical Background, Disputes, Issues, Questions, Solution Scenarios or A Thousand Scenarios for the Thousand Islands Dispute 45 (1992). Andrei Gromyko, the Delegate of the Soviet Union, Deputy Minister of Foreign Affairs, speech at the 2nd Plenary Session of the San Francisco Peace Conference (Sept. 5, 1951), in Graham Allison et al., Beyond Cold War to Trilateral Cooperation in the AsiaPacific Region: Scenarios for New Relationships Between Japan, Russia, and the United States 126–27 (1992) for extract version of the speech [hereinafter Beyond Cold War]; see also id. at 45–46.

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during the negotiations leading to the San Francisco Peace Treaty. It can be also interpreted, at least theoretically, that Japanese renunciation of the Kurile Islands in the San Francisco Peace Treaty was tantamount to de facto recognition that these territories had been ceded to the Soviet Union which occupied them at that time.26 Nonetheless, it is also questionable whether the Soviet Union gained ownership over the Kuriles Islands in international law given its status as a nonsignatory of the San Francisco Peace Treaty. Two main sources, the Vienna Convention and the San Francisco Peace Treaty itself, can be examined to clarify this matter. d. Territorial Disposition of the Kurile Islands in the San Francisco Peace Treaty Japan has a marginally better case that the currently disputed Kurile Islands have historically been Japanese, were never taken by Japan by force, and thus should in fairness be regarded as Japanese in the San Francisco peace settlement. Etorofu, Kunashiri, and Shikotan have been described in Japanese and international usage as part of the Kurile Archipelago, and it would be difficult to prove that they are not a part of the “Kurile Islands” as the term is used in the San Francisco Peace Treaty. By signing the San Francisco Peace Treaty, Japan formally renounced “all right, title and claim to the Kurile Islands.” The San Francisco Peace Treaty, which conferred no rights upon the Soviet Union, because it refused to sign, did not determine the sovereignty of the territories renounced by Japan, leaving that question, as was stated by the delegates of the United States at San Francisco, to “international solvents other than this treaty.” It is the considered opinion of the United States that by virtue of the San Francisco Peace Treaty, Japan does not have the right to determine the sovereignty over the territories renounced by it therein.27 In a strict legal sense, therefore, it is established that Japan cannot rightfully claim ownership of the Kurile Archipelago, including Etorofu, Kunashiri, and Shikotan that are clearly fitting into the terminology of either Kurile Archipelago or Kurile Islands. Japan has only rightful title to the Habomais placed outside of the currently disputed “Kurile Islands.” Most significantly, by failing to sign the San Francisco Peace Treaty, Russia, on the other hand, does

26

27

See Louis J. Adams, Theory, Law and Policy of Contemporary Japanese Treaties 74 (1974). There are, however, other arguable theories, such as that to the extent any residual sovereignty may remain in Japan after the renunciation, the power to perfect sovereignty in the Soviet Union rests not with Japan but with the parties to the treaty, because the renunciation ran to such parties. See Memorandum from Walter S. Robertson, Assistant Sec’y of State for Far E. Affairs, to the Sec’y of State Regarding Japan-USSR Peace Treaty Negotiations (Aug. 25, 1956) (on file with U.S. National Archives and Records Administration).

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not, and cannot, have clear legal title to the Kurile Islands (Etorofu, Kunashiri, Shikotan, and the Habomais). In sum, the outcome of the territorial dispute over the Kurile Islands adjudged on the basis of the San Francisco Peace Treaty may be itemized as follows: first, there is a legal ownership vacuum on Etorofu, Kunashiri, and Shikotan, and Russia has exercised its jurisdiction over them without any international endorsement; and second, Russia should be required to return the Habomais to Japan,28 due to Japan’s rightful title to the Habomais and Russia’s legally groundless occupation of them. e. Further Observations on the Territorial Dispute over the Kurile Islands (1) The Paths to the Joint Declaration of 1956 and the Territorial Issue Talks were initiated in London in June 1955 at the Soviet Union’s initiative to normalize relations between it and Japan. From the beginning, the Soviet Union pressed for a simple declaration of the termination of the war and an exchange of envoys, with settlement of outstanding issues later, but was confronted by Japanese demands for a prior settlement of outstanding issues before resumption of relations. In negotiations extending intermittently from June 1955 to March 1956, agreement was reached on a number of clauses to a draft treaty, but an impasse developed on the territorial issue. The terms of the agreement re-establishing diplomatic relations between the Soviet Union and Japan, finally reached in Moscow on October 19, 1956, combined Hatoyama’s five points with most of the agreed clauses of the draft peace treaty which had been reached in the previous negotiations in London and Moscow. On the territorial issue, Shikotan and the Habomais are withheld pending the conclusion of a peace treaty, and it is not specifically provided that the status of Etorofu and Kunashiri, the heart of the previous impasse, would continue to be a subject of future negotiation.29 This situation significantly

28

29

In that context, the issue of how Russia could transfer the Habomais to Japan is another important issue to explore, since those islands were not Russia’s to start with, despite the fact that Russia regarded them as Russian territory by Allied decision and by occupation. The fact that there are no Russian civilians in the Habomais so far, however, can shed light on developing the ways to transfer the Habomais to Japan without the human factor implications. For information on the current situation of the Kurile Islands, see Oleg Bondarenko, Paper on the Contemporary Situation in the Kuril Islands, in Beyond Cold War, supra note 25, at 13. As to internal law in Russia and the resolution of the territorial issue over the Kurile Islands, it is also noted that the territory of Russia cannot be altered without an expression of the people’s will by means of a referendum according to the Declaration of State Sovereignty and the Russian Constitution. See S. Punzhin, Legal Aspects of the Resolution of the Territorial Dispute between Japan and Russia, in Beyond Cold War, supra note 25, at 34. Memorandum from Walter S. Robertson, Assistant Sec’y of State for Far E. Affairs to the Sec’y of State Regarding Normalization of Relations between Japan and the USSR (Oct. 24,

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changed, however, since the Soviet Union made an issue of the U.S.-Japan Security Treaty, and concluded by stating that Shikotan and the Habomais would be returned to Japan only upon condition of signature of a peace treaty and departure of all foreign troops from Japan.30 (2) Influential Factors Dissuading Russia and Japan from Making Further Progress (a) Russian and Japanese Policy Factors Japanese negotiators and influential politicians, in fact, were not interested in raising the territorial issue as a priority because other questions such as entry into the United Nations and fisheries arrangements needed settling first.31 The negotiators also regarded these negotiations largely in relation to domestic Japanese political factors, including their own political futures. Therefore, their approaches to resolving the territorial issue were totally different depending on where they stood. One group, which was placed in a particularly shaky political position and had experienced a decline in political influence, was generally supporting proposals such as the following: to reach an early agreement to sign a peace treaty involving the return of only Shikotan and the Habomais; a reservation of position on Etorofu and Kunashiri by not mentioning them in the treaty; and return of all “war criminals” immediately after the signing of the treaty.32 Meanwhile, the other group, placed in the opposite position, usually had been the most outspoken advocate of hard bargaining with the Soviet Union.33 In the meantime, due to the Soviet Union’s border problems with its other neighbors, it was doubtful that it could be induced to return the disputed

30

31

32

33

1956) (on file with U.S. National Archives and Records Administration); Peace Declaration, N.Y. Times, Oct. 20, 1956. Incoming Telegram from U.S. Embassy, Moscow, USNARA/Doc. No.: 661.94/1-2860 EMW (Jan. 28, 1960) (on file with U.S. National Archives and Records Administration). Memorandum of Conversation Regarding Japanese-Soviet Relations, USNARA/Doc. No.: 661.941/10-3056 CJC (Oct. 30, 1956) (on file with U.S. National Archives and Records Administration). Memorandum of Conversation Regarding Japanese-Soviet Negotiations in London, USNARA/ Doc. No.: 661.94/2-156 CSBM (Feb. 1, 1956) (on file with U.S. National Archives and Records Administration). Office Memorandum from Noel Hemmendinger, Acting Dir. of the Office of Ne. Asian Affairs, to Walter S. Robertson, Assistant Sec’y of State for Far E. Affairs Regarding JapanUSSR Negotiations (Sept. 16, 1955) (on file with U.S. National Archives and Records Administration); Memorandum of Conversation Regarding Soviet-Japanese Negotiations in Moscow, USNARA/Doc. No.: 661.941/8-1056 CS/K (Aug. 10, 1956) (on file with U.S. National Archives and Records Administration).

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islands under any circumstances short of war, in part because of the dangerous precedent this would set for Soviet borders in other areas.34 (b) United States Foreign Policy Factor The U.S. Senate gave its advice and consent to the ratification of the San Francisco Peace Treaty with the following declarations: As part of such advice and consent the Senate states that nothing the treaty contains is deemed to diminish or prejudice, in favor of the Soviet Union, the right, title, and interest of Japan, or the Allied Powers as defined in said treaty, in and to South Sakhalin and its adjacent islands, the Kurile Islands, the Habomai Islands, the island of Shikotan, or any other territory, rights, or interests, possessed by Japan on December 7, 1941, or to confer any right, title, or benefit therein or thereto on the Soviet Union; and also that nothing in the said treaty, or the advice and consent of the Senate to the ratification thereof, implies recognition on the part of the United States of the provisions in favor of the Soviet Union contained in the so-called ‘Yalta agreement’ regarding Japan of February 11, 1945.35

34

35

State of Department Airgram Regarding Northern Territories’ Issues, State Dep’t File No. Pol 19 Kuril Is, State Dep’t Records, Record Group 59 (Nov. 25, 1970) (on file with U.S. National Archives and Records Administration); Punzhin, supra note 28. See also Telegram from U.S. Embassy, Moscow to Dep’t State, USNARA/Doc. No.: Pol 32-6 Japan-USSR (June 22, 1964) (The U.S. intelligence report observed that with Chinese help territorial problems were apparently beginning to bedevil Soviet diplomacy. In particular, it noted that in talks with Japanese socialists, China supported Japanese claims to the Kurile Islands, and that the Soviet Union took too much land on Amur and in Eastern Europe. This report also suggested that the Soviet Union might well be concerned that concession of the Kurile Islands to Japan might strengthen the Chinese position on border issues and might be beginning to fear that such concession might embolden some Eastern Europeans to challenge the Soviet Union’s World War II territorial gains). Memorandum, Kurile Islands, State Dep’t Decimal File No. 661.941/8-356, State Dep’t Records, Record Group 59 (Aug. 3, 1956) (on file with the U.S. National Archives and Records Administration). See also U.S. Cong., Foreign Relations Comm., 82d Cong., 2d Session, Report of the Committee on Foreign Relations on Executives A, B, C, and D: Japanese Peace Treaty and Other Treaties Relating to Security in the Pacific. 9. Territorial Provisions . . . It is important to remember that article 2 is a renunciatory article and makes no provision for the power or powers which are to succeed Japan in the possession of and sovereignty over the ceded territory. During the negotiation of the treaty some of the Allied Powers expressed the view that article 2 of the treaty should not only relieve Japan of its sovereignty over the territories in question but should indicate specifically what disposition was to be made of each of them. The committee believes, however, that this would have been an unwise course to pursue. It might have raised differences among the Allies which would have complicated and prolonged the conclusion of the peace. Under the circumstances it seems far better to have the treaty enter into force now, leaving to the future the final disposition of such areas as . . . the Kuriles . . . .

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As is vividly expressed, the U.S. position as to the Japan-Soviet negotiations was that if Japan recognized Soviet sovereignty over the Kurile Islands, the United States would have to reserve its rights under Article 26 of the San Francisco Peace Treaty to assert sovereignty over the Ryukyus.36 This stance was repeated consistently and delivered to Japan through various channels. On the question of what the U.S. attitude would be if Japan were to agree that it had no objection to the Soviet Union obtaining sovereignty over the Kurile Islands and other territories, Mr. William J. Sebald, then Acting Assistant Secretary of the U.S. Department of State, Far Eastern Affairs, responded that Japan had renounced all rights to the Kurile Archipelago by Article 2 of the San Francisco Peace Treaty, and therefore, Japan was in no position to transfer sovereignty to anybody. He further emphasized that if the Japanese agreed to transfer sovereignty over the Kurile Islands to the Soviet Union, it would seem that they were giving the Soviet Union treatment more favorable than that provided in the San Francisco Peace Treaty. Therefore, then, he concluded that the United States would have to reserve its rights under Article 26 of the treaty, and such rights might be interpreted to include the Ryukyus and the other territories.37 One of the numerous internal memoranda of the U.S. Department of State on this issue crystallized its position on upholding the status quo as follows: [Any] United States action supporting Japan’s claim to the Kuriles might appear to reflect on our position under the San Francisco Treaty in the Ryukyus . . . which Japan also renounced under the treaty; encouragement of Japanese irredentism in the north might also encourage it in the south; the hostile presence of the Soviet Union on Japan’s northern border will serve as a constant irritant in their relations.38

The optimal conditions for the U.S. foreign policy in East Asia, in particular during the period of the Cold War, could thus best be achieved by dissuading Japan from purporting to recognize Soviet sovereignty over the Kurile Islands. In other words, the United States weighed its political advantages from the position that it would assert further interests over Japanese territory. This U.S. position resorted to using Article 26 of the San Francisco Peace Treaty – that is, even if Japan does accord such recognition to the Soviet Union’s claims, it appeared possible for the United States to maintain that there would be no change in the status of the territories that resulted from the 36 37

38

Memorandum, Robertson Regarding Japan-USSR Peace Treaty Negotiations, supra note 27. Memorandum of Conversation by William J. Sebald, Acting Assistant Sec’y of the U.S. Dep’t of State, Far E. Affairs (Aug. 13, 1956) (on file with U.S. National Archives and Records Administration). Memorandum from William J. Sebald, Deputy Assistant Sec’y of State for Far E. Affairs to Robert D. Murphy, Deputy Under Sec’y of State for Political Affairs Regarding Japan-USSR Relations (Apr. 20, 1955) (on file with U.S. National Archives and Records Administration).

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San Francisco Peace Treaty.39 This resulted in various repercussions. On the one hand, as a legal matter, whether such recognition by Japan gave the United States the right to claim sovereignty over the Ryukyus would be highly doubtful in view of the difference in treatment of these territories in Articles 2 and 3 of the San Francisco Peace Treaty.40 Furthermore, there also appeared to be nothing significantly relevant in this respect, since Article 26 was designed mainly to grant nations making treaties with Japan after conclusion of the San Francisco Peace Treaty the same rights as the signatories of that treaty and conversely to prevent any post-San Francisco signatories from getting advantages, particularly economic, not granted to the signatories at San Francisco.41 On the other hand, there were political implications. It was reported that some members of the Hatoyama delegation were pleased that there had been no definite mention of Etorofu and Kunashiri in the agreements which had been signed on October 19, 1956, since there would be the possibility that Russia could make a stronger connection between their possible release of Etorofu and Kunashiri and the requirement that the United States return the Ryukyus and the other territories, including Bonin Islands. In other words, the thought allegedly expressed was perhaps that Russia could force the United States to do for Japan what the Japanese had been unable to accomplish.42 U.S. involvement and influence, as mentioned earlier, emphasized the multilateral character of the territorial dispute over the Kurile Islands. However, notwithstanding Article 26 of the San Francisco Peace Treaty, as previous experiences of concluding separate peace treaties between Japan and China,43 Japan and Taiwan,44 and so on, demonstrate, the greater obstacle is reaching an agreement between the claimants themselves.

39 40 41

42

43

44

Memorandum, Robertson Regarding Japan-USSR Peace Treaty Negotiations, supra note 27. Id. Memorandum from W. Park Armstrong, Jr., Special Assistant for Intelligence to the Sec’y of State to William J. Sebald, Deputy Assistant Sec’y of State for Far E. Affairs Regarding Current Soviet Intentions toward Japan (Feb. 23, 1955) (on file with U.S. National Archives and Records Administration). Memorandum of Conversation Regarding Japanese-Soviet Negotiations for Establishing Diplomatic Relations, USNARA/Doc. No.: 661.941/10-2656 CS/K (Oct. 26, 1956) (on file with U.S. National Archives and Records Administration). Treaty of Peace and Friendship between Japan and the People’s Republic of China, Aug. 12, 1978, reprinted in 17 I.L.M. 1054–55 (1978), available at http://www.taiwandocuments.org/ beijing.htm. Treaty of Peace between the Republic of China and Japan, signed at Taipei, Apr. 28, 1952, 138 U.N.T.S. 3, 38–44, available at http://www.taiwandocuments.org/taipei01.htm.

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2. Territorial Disputes among Japan, China, and Taiwan Concerning the Senkaku Islands a. Territorial Arrangements for the Senkaku Islands under the San Francisco Peace Treaty The term Senkaku Islands, or any Chinese or Western name corresponding to the name conventionally used, did not appear specifically in the territorial clauses of the San Francisco Peace Treaty. Further, the Senkaku Islands were not mentioned specifically in any international agreement, and apparently were ignored internationally until the awakening of interests in oil explorations of the continental shelf in 1969. However, the drafts of the San Francisco Peace Treaty could shed some light on the issue. As to the Senkaku Islands, the territorial provisions in the San Francisco Peace Treaty can be categorized into two parts: (1) the territorial limits of Japan, and territorial disposition of Taiwan; and (2) U.N. trusteeship over the Senkaku Islands. By mentioning the specific islands Japan should cede to China, and delineating Taiwan through latitude and longitude, the drafters of the San Francisco Peace Treaty did not include the Senkaku Islands as China or Taiwan’s territory. In other words, putting aside the question of whether the drafters designated the Senkaku Islands as parts of the Ryukyu Islands, it was manifested that the Senkaku Islands were not envisaged as a part of China or Taiwan. In the successive drafts of the San Francisco Peace Treaty, provisions on the Senkaku Islands dealt more with the introduction of U.N. trusteeship over the islands rather than with their territorial disposition. The first available draft of the San Francisco Peace Treaty, dated March 19, 1947, provided that “Japan hereby renounces all rights and titles to the Ryukyu Islands forming part of Okinawa Prefecture, and to Daito and Rasa Islands.”45 By this draft, Japan also renounced the Senkaku Islands since the Senkaku Islands are part of the Ryukyu Islands, in particular Okinawa Prefecture. With regard to the Senkaku Islands defined in the San Francisco Peace Treaty, the following points could be noted: first, as mentioned earlier, the term Senkaku Islands, or any Chinese or Western name corresponding to the name conventionally used, did not appear specifically in the territorial clauses of the San Francisco Peace Treaty; second, the Senkaku Islands were not included as either Chinese or Taiwanese or Japanese territory by the drafters of the San Francisco Peace Treaty; third, Article 3 of the San Francisco Peace Treaty did not, to the point of specificity, define the territories that were placed within the area of U.N. trusteeship with the United States as the sole administering authority, 45

Memorandum from Dean G. Acheson under Sec’y of State to General MacArthur Regarding Outline and Various Sections of Draft Treaty art. 7 (Mar. 20, 1947) (on file with U.S. National Archives and Records Administration).

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due to the fact that the boundaries of the Ryukyu Islands had never been previously legally defined; and further, the precise demarcation and delineation of the area of the Ryukyu Islands have also been subject to disputes between claimants and interested parties; and fourth, throughout the drafts, in particular in the earlier drafts, there are strong assumptions that Japan renounced all rights and title to the Ryukyu Islands south of 29º N. latitude, an area which includes the disputed Senkaku Islands. b. Implications of Okinawa Reversion Treaty The Okinawa Reversion Treaty signed by the United States and Japan on June 17, 1971, which included the Senkaku Islands as part of Okinawa to be returned to Japan, brought the Senkaku Islands dispute back into the limelight, with immediate challenges by both China and Taiwan. As to the status of the Senkaku Islands, the U.S. Department of State has consistently maintained the following positions: first, the term “Nansei Shoto” as used in Article 3 of the San Francisco Peace Treaty was intended to include the Senkaku Islands. Nansei Shoto, as used in the treaty, refers to all islands south of 29° N. latitude, under Japanese administration at end of World War II, that were not otherwise specifically referred to in the treaty;46 second, under the treaty, the United States administered the Senkaku Islands as part of the Ryukyu Islands, but considered that residual sovereignty over the Ryukyu Islands remained with Japan;47 and third, though Japan would then have full right to her territories, the U.S. government considered that any conflicting claims to the Senkaku Islands were a matter for resolution by the parties concerned.48 Therefore, the United States assumed administration of all the islands in the area stipulated in the San Francisco Peace Treaty, including the Senkaku Islands, without reference to sovereignty questions. The general assumption that they were part of the Ryukyu Islands was not challenged by Taiwan until 1970. In sum, the United States had taken no position on sovereignty over the Senkaku Islands, stated that the United States returned them to Japanese administration with the rest of the Ryukyu Islands in 1972, and reiterated that “any dispute over sovereignty should be settled by the parties themselves, or, if they wish, by third party adjudication.”49

46

47

48 49

Senkakus Dispute, USNARA/Doc. No.: Pol 32-6 Senkaku Is 051240 (Mar. 25, 1972) (on file with U.S. National Archives and Records Administration). Telegram Regarding Continental Shelf, USNARA/Doc. No.: Pol 32–6 Senkaku Is; XR Pol 33 China Sea (Aug. 11, 1970) (on file with U.S. National Archives and Records Administration). Senkakus Dispute, supra note 46. Telegram Regarding Senkakus Dispute, USNARA/Doc. No.: Pol 32–6 Senkaku Is; Taipei 2803 (June 9, 1971) (on file with U.S. National Archives and Records Administration).

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Although the United States recognized the residual sovereignty of Japan over Nansei Shoto, including the Senkaku Islands, which the United States administered pursuant to Article 3 of San Francisco Peace Treaty, it was also the U.S. position, however, that the treaty alone was not necessarily the final determinant of the sovereignty issue.50 In other words, in the event a dispute over sovereignty over the Senkaku Islands arose, neither the San Francisco Peace Treaty nor the Okinawa Reversion Treaty would be dispositive of the dispute, which would have to be resolved by the claimants or, if they choose, through third party adjudication, such as by the International Court of Justice (hereinafter ICJ).51 3. Territorial Disputes between Korea and Japan Over the Liancourt Rocks a. Drafts of the Territorial Clause of the San Francisco Peace Treaty and their Implications Based on the implications of the relevant legal instruments preceding the San Francisco Peace Treaty mentioned above, a careful interpretation of how a series of drafts defined the terms of the San Francisco Peace Treaty regarding the Liancourt Rocks will be analyzed below. The first available draft of the territorial clause on the Liancourt Rocks dated March 19, 194752 provided that “Japan hereby renounces all rights and titles to Korea and all minor offshore Korean islands, including Quelpart Island, Port Hamilton, Dagelet (Utsuryo) Island and Liancourt Rock (Takeshima). . . .”53 This inclusion of the Liancourt

50

51

52

53

Telegram Regarding Senkaku Islands, USNARA/Doc. No.: Pol 32–6 Senkaku Is; XR Pol 33 China Sea (Sept. 14, 1970) (on file with U.S. National Archives and Records Administration). See also Memorandum to Henry A. Kissinger Regarding Farewell Call on the President by Ambassador Chow Shu-kai of the Republic of China and Supplementary Talking Points for Courtesy Call by Chinese Ambassador Chow Shu-kai (Apr. 10, 1971) (on file with U.S. National Archives and Records Administration). (It is the U.S. position that neither the San Francisco Peace Treaty nor the Okinawa Reversion Treaty is necessarily the final determinant of sovereignty over the Senkaku Islands). Telegram Regarding Senkaku Islands, USNARA/Doc. No.: Pol 32–6 Senkaku Is; XR Pol 19 Ryukyu Is (Aug. 19, 1970) (on file with U.S. National Archives and Records Administration); Telegram Regarding Senkaku Islands, id. (Sept. 14, 1970) (on file with U.S. National Archives and Records Administration). Memorandum from Dean G. Acheson, under Sec’y of State to General MacArthur, the Supreme Commander for the Allied Powers Regarding Outline and Various Sections of Draft Treaty (Mar. 20, 1947) (on file with U.S. National Archives and Records Administration). There is the possibility that earlier drafts existed, though their contents on the territorial disposition were identical. See Memorandum by Samuel W. Boggs, Special Adviser on Geography, Office of Intelligence Research Regarding Disposition of the Kuriles in the Treaty with Japan (July, 23, 1947) (citing the treaty draft dated on Feb. 3, 1947) (on file with author). SF Peace Treaty, supra note 19, art. 4.

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Rocks as Korean territory continued throughout the drafts of August 5, 1947;54 January 8, 1948;55 October 13, 1949;56 and November 2, 1949.57 Concerning the above provisions in the previous drafts, William J. Sebald, the U.S. Political Adviser for Japan, recommended a reconsideration of the Liancourt Rocks pointing out that it was considered of high importance, because according to him, “Japan’s [claim] to these islands is old and appears valid. Security considerations might conceivably envisage weather and radar stations thereon.”58 He further commented: It is suggested that Liancourt Rocks . . . be specified in our proposed Article 3 as belonging to Japan. Japan’s [claim] to these islands is old and appears valid, and it is difficult to regard them as islands off the shore of Korea. Security considerations might also conceivably render the provision of weather and radar stations on these islands a matter of interest to the United States.59

Though the effect of this memorandum on the territorial disposition of the Liancourt Rocks was not obviously addressed in other diplomatic documents, the position of the drafters of the San Francisco Peace Treaty was reversed in subsequent drafts. In the meantime, the pattern of designating either Korea or Japan as the recipient of the Liancourt Rocks changed, and no further reference was made to the Liancourt Rocks in the subsequent drafts. This has led to self-serving interpretations by both claimants relying on different versions of earlier drafts in the absence of a definitive disposition of the Liancourt Rocks in the San Francisco Peace Treaty. The adoption of this pattern was the reflection of compromise, as shown below, between the Commonwealth Japanese Treaty Working Party and the U.S. Department of State’s new stance, including Secretary Dulles’ proposed shortened version of the draft.

54

55

56

57

58

59

Office Memorandum from Hugh Borton, Special Assistant to the Dir., Office of Far E. Affairs to Charles E. Bohlen, Counselor of the Dep’t of State Regarding Draft Treaty of Peace for Japan (Aug. 6, 1947) (on file with U.S. National Archives and Records Administration). Memorandum Regarding Background of Draft of Japanese Peace Treaty, State Dep’t Decimal File No. 740.0011 PW (PEACE)/1-3048 CS/W, State Dep’t Records, Record Group 59 (Jan. 30, 1948) (on file with U.S. National Archives and Records Administration). Office Memorandum Regarding Attached Treaty Draft, State Dep’t Decimal File No. 740.0011 PW (PEACE)/10-1449, State Dep’t Records, Record Group 59 (Oct. 14, 1949) (on file with U.S. National Archives and Records Administration). Commentary on Treaty of Peace with Japan (Nov. 2, 1949) (on file with U.S. National Archives and Records Administration). Telegram from William J. Sebald, U.S. POLAD for Japan to Secretary of State (Nov. 14, 1949) (on file with U.S. National Archives and Records Administration). Commentary on Treaty of Peace with Japan, State Dep’t Records, Record Group 59 (Nov. 2, 1949) (on file with the U.S. National Archives and Records Administration).

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Among the list of general areas of agreement reached by the Commonwealth Japanese Treaty Working Party in London is an item on “Territories to be taken from Japan need not be mentioned in a Peace Treaty.”60 On other territorial issues, it was generally agreed by the Commonwealth Japanese Treaty Working Party that: first, Japanese sovereignty would be confined to the four main islands and to a number of adjacent minor islands whose precise definition would be a matter for the Peace Conference; and second, the disposition of the territories to be ceded by Japan need not be dealt with in the San Francisco Peace Treaty itself. In the treaty Japan might merely renounce all claims to the ceded territories.61 When Japan agreed in Article 2 of the San Francisco Peace Treaty to renounce “all right, title and claim to Korea, including the islands Quelpart, Port Hamilton, and Dagelet,” the drafters of the treaty did not include the Liancourt Rocks within the area to be renounced. Japan has, and with reason, assumed that its sovereignty still extends over the Liancourt Rocks, and the Koreans have disputed this assumption.62 Therefore, as Charney pointed out, “There is even a dispute over whether by implication or, by general terms, the victors in World War II intended to return the disputed [Liancourt Rocks] to Korea.”63 During the course of drafting the San Francisco Peace Treaty, Korea’s views were solicited, in consequence of which, the Korean Ambassador requested the U.S. Secretary of State in a letter of July 19, 1951 to amend Article 2(a) of the draft treaty so as to include the Liancourt Rocks as well as Quelpart, Port Hamilton and Dagelet among those islands over which Japan would renounce right, title, and claim by virtue of recognizing Korea’s independence. In his reply to the Korean Ambassador dated August 10, 1951, Dean Rusk, the Assistant Secretary of State, stated that the United States could not concur in the proposed amendment as it applied to the Liancourt Rocks since, according to his information, the Liancourt Rocks had never been treated as a part of Korea,

60

61

62

63

Memorandum by Mr. John M. Allison, U.S. Del. to the United Nations (May 25, 1950) (on file with author); Memorandum by Mr. Hamilton, U.S. Representative on the Far E. Comm’n Regarding Territorial Provisions in Peace Treaty with Japan (May 26, 1950) (on file with author). British Embassy, Washington, D.C., U.S., Commonwealth Working Party on Japanese Peace Treaty: Report of the Commonwealth Working Party at 8 (Cabinet Office, S.W.1) (May 17, 1950) (on file with U.S. National Archives and Records Administration). Foreign Service Despatch from John M. Steeves, First Secretary of U.S. Embassy in Japan, Koreans on Liancourt Rocks, State Dep’t Decimal File No. 694.9513/10-352, State Dep’t Records, Record Group 59 (Oct. 3, 1952) (on file with U.S. National Archives and Records Administration). J.I. Charney, Probable Future Outcomes of Some Island Disputes around Japan: Comments 161 (unpublished paper presented at the Annual Conference on “Maritime Boundary Issues and Islands Disputes in the East Asian Region” in Pusan, Korea) (Aug. 4, 1997).

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Table 2. Territorial Disposition of the Liancourt Rocks in the Drafts of the San Francisco Peace Treaty Drafts

Territorial Disposition Note of the Liancourt Rocks

March 19, 1947 August 5, 1947 January 8, 1948 October 13, 1949 November 2, 1949 December 8, 1949

Japanese Japanese Japanese Japanese Japanese Japanese

December 19, 1949 December 29, 1949 January 3, 1950

Korean territory Japanese territory Japanese territory

August 7, 1950 September 11, 1950 March 12, 1951 March 17, 1951 April 7, 1951 May 3, 1951 June 14, 1951 July 3, 1951 July 20, 1951 August 13, 1951

N/A N/A N/A N/A Japanese territory N/A N/A N/A N/A N/A

renunciation renunciation renunciation renunciation renunciation territory

Incoming Telegram by William J. Sebald (US POLAD for Japan) to U.S. Secretary of State, November 14, 1949 The Commonwealth Japanese Treaty Working Party: “Territories to be taken from Japan need not be mentioned in a Peace Treaty;” Secretary Dulles’ proposed shortened version of the draft

and they had been under the jurisdiction of the Oki Islands Branch Office of Japan’s Shimane Prefecture since 1905 and it did not appear that they had ever before been claimed by Korea. As a result, Article 2(a) of the San Francisco Peace Treaty made no mention of the Liancourt Rocks.64 Accordingly, it appeared that the United States viewed that the San Francisco Peace Treaty constituted a determination of the “minor islands” to be left to Japan under the Potsdam Declaration, and that the treaty left the Liancourt Rocks to Japan. The United States remarked however that the U.S. view was simply that of one of the several signatories of the treaty, and that Article 22 of

64

Letter from Mr. Kenneth T. Young, Jr., Dir., Office of Ne. Asian Affairs to U.S. Embassy in Korea (Nov. 5, 1952) (on file with author).

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the San Francisco Peace Treaty, providing for reference to the ICJ, was drafted in order to settle the disputes deriving from the treaty.65 In determining what course of action should be taken in light of this development, the question arose whether the statement made in Assistant Secretary Rusk’s letter entailed the legal conclusion that the San Francisco Peace Treaty left the Liancourt Rocks to Japan. On the one hand, it may be argued that the determination of the minor islands to be left under Japanese sovereignty required by the Potsdam Proclamation has been made by the treaty, i.e., Japan retained everything not renounced under Article 2, that Korea, prior to the signing of the treaty specifically asked for a renunciation of the Liancourt Rocks by Japan and was turned down and that therefore it was the intent of the drafters of the treaty that Japan did not renounce the Liancourt Rocks, and that these islands were accordingly included in the minor islands determined to remain under Japanese sovereignty. On the other hand, it may be argued that Assistant Secretary Rusk’s letter refusing to include the Liancourt Rocks in the enumeration of islands renounced in connection with the renunciation of Korea was based on the U.S. understanding of the historical facts, providing that “Dokdo . . . was according to our information never treated as part of Korea” [emphasis in original], and that his statement left the door open to Korea to show that it had in fact treated the Liancourt Rocks as part of Korea prior to 1905, when the Japanese placed the Liancourt Rocks under the jurisdiction of Japan’s Shimane Prefecture. Under this theory Korea would still be free to establish legally, if it could, that the “Korea” renounced in the San Francisco Peace Treaty included the Liancourt Rocks.66 This is all the more so given that the reports on the Liancourt Rocks were based for the most part on Japanese language references available in the Department of State and the Library of Congress, and the studies prepared within the Department of State and by the Japanese Foreign Office on some of the islands.67 b. The United States’ Response to the Territorial Dispute over the Liancourt Rocks Despite the U.S. view that the San Francisco Peace Treaty left the Liancourt Rocks to Japan, and had so informed the Korean Ambassador in Washington,68

65

66 67

68

Conflicting Korean – Japanese Claims to Dokdo Island (Otherwise Known as Takeshima or Liancourt Rocks) (Aug. 26, 1954) (on file with author); SF Peace Treaty art. 22, supra note 19. For the full text of this article, see ch. III n. 94. Id. Division of Research for Far East, Office of Intelligence Research, State of Dep’t, DRF Information Paper Notes on Certain Islands Adjacent to or Formerly Occupied by Japan (Unedited Draft), State Dep’t Records, Record Group 59 (Apr. 19, 1950) (on file with author). Letter from Dean Rusk, Assistant Sec’y of State to You Chan Yang, Korean Ambassador in Washington, D.C., U.S. (Aug. 9, 1951) (on file with U.S. National Archives and Records Administration).

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it was also evident that the United States was aware of the fact that its status was unsettled and in dispute.69 Accordingly, it seemed highly doubtful that the United States would wish to become involved in the controversy by taking a position as to whether Korea or Japan had sovereignty over the Liancourt Rocks. Although the United States proclaimed that it would not become involved in any territorial dispute arising from the Liancourt Rocks, in view of the position already taken by SCAP, by Assistant Secretary Rusk in a note dated August 10, 1951 to the Korean Ambassador in Washington D.C.,70 and by designating these rocks as a Japanese facility by a U.S.-Japan Joint Committee,71 the United States is already “inescapably involved” in the Liancourt Rocks dispute.72 Furthermore, under certain circumstances, if and when it should appear necessary for the United States to take a position on this issue, the position of the United States was to publicize the Rusk note and disclaim any desire to intervene in this matter.73 69

70

71

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Supreme Commander for the Allied Powers, Area Authorized for Japanese Fishing and Whaling, SCAPIN (Supreme Commander for the Allied Powers Instruction Note) No. 1033 (June 22, 1946) (on file with U.S. National Archives and Records Administration). See also Letter from Lt. Gen. Doyle O. Hickey, Gen. Staff, Chief of Staff to E. Allan Lightner, Jr., Charge d’Affaires, ad interim in U.S. Embassy in Korea (Nov. 27, 1952) (on file with author). For the skeptical U.S. response against Korean claims, see Use of Disputed Territory (Tokto Island) as Live Bombing Area, State Dep’t Records, Record Group 59, (Oct. 15, 1952) (on file with U.S. National Archives and Records Administration). This position has never been formally communicated to the Japanese government. Memorandum Regarding Possible Methods of Resolving Liancourt Rocks Dispute between Japan and the Republic of Korea, USNARA/694.9513/7-2253 (July 22, 1953) (on file with U.S. National Archives and Records Administration) [hereinafter Memorandum Regarding Possible Methods of Resolving Liancourt Rocks Dispute]. Outgoing Telegram to U.S. Embassy, Korea, USNARA/694.9513/11-1452 (Nov. 14, 1952) (on file with U.S. National Archives and Records Administration); Note No. 187 from U.S. Embassy in Korea to R.O.K. Ministry of Foreign Affairs (Dec. 4, 1952) (on file with author); Memorandum of Conversation Regarding Liancourt Rocks, USNARA/694.95B/11-1754 CSBM (Nov. 17, 1954) (on file with U.S. National Archives and Records Administration) (Minister Shigenobu Shima, Japanese Embassy in Washington, DC, noted that the U.S. military forces in Japan had listed Liancourt Rocks as a military facility granted for their use under the Administrative Agreement and had later returned this facility to Japanese control. Mr. Shima said this appeared to constitute U.S. recognition of the validity of Japan’s claim). Memorandum by William T. Turner, Charge d’Affaires, U.S. Embassy in Japan Regarding Liancourt Rocks (Takeshima Island) Controversy, (Nov. 30, 1953) (on file with author) [hereinafter Memorandum by Turner in 1953]; Memorandum by Turner (Nov. 17, 1954). (William J. Sebald, Deputy Assistant Secretary, Far Eastern Affairs, expressed the view that it was important for Japan to keep its claim alive and not to permit its rights to be prejudiced by default. He suggested that a note to Korea or other periodic formal statements would serve this purpose). Memorandum by Turner in 1953, supra note 72.

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Both Korea and Japan, the two disputants, were well aware of the United States’ hands-off policy toward the territorial dispute over the Liancourt Rocks. However, efforts to rely on the influence of the United States had continuously been attempted, especially by Japan.74 The United States itself explored, particularly at the instance of Japan, several scenarios in the event that the need arose for it to play an active role in the resolution of the dispute. These included

74

The legal implication of the U.S. position on the issue of the sovereignty of the Liancourt Rocks should be understood in conjunction with the fact that the United States, initially the U.S. Department of State, took the primary role to draft the San Francisco Peace Treaty for the purpose of designing the post-World War II territorial configurations in East Asia. This is all the more so given that U.S. political influence has dominated bilateral relations between claimants, Korea and Japan, and the United States beyond the material periods. For the drafting of the San Francisco Peace Treaty, the U.S. government set up working groups within the Department of State. They regularly met to discuss specific topics, make reports according to their timetable, and submit them to the Department of State and relevant organizations for circulation and further consideration. Among them, the Inter-Divisional Area Committee on the Far East (hereinafter ‘Inter-Divisional Area Committee’) was both a product of and a contributor to the post-war planning program of the Department of State. By the autumn of 1943, general discussion of post-war policy within the Department of State had already reached an advanced stage. The Inter-Divisional Area Committee began its meeting in October 1943, and until February 1944, it held some twenty-seven sessions. In the course of these twenty-seven meetings, the Inter-Divisional Area Committee agreed on the preferred solutions to some thirty post-war problems, and postponed two questions – the future of Portuguese Timor and the Japanese mandated islands – for further discussion, see U.S. Dep’t of State, Report on the Work of the Inter-Divisional Area Committee on the Far East, Oct. 1, 1943 – Feb. 1, 1944: Division of Japanese Affairs 13 (on file with author). As far as its relationship with the other policymaking committees in the Department of State and the government was concerned, the Inter-Divisional Area Committee was the “working committee” of the Department of State. It was in this group that the basic task of obtaining agreement among the important “middle-group” of officers of the Department of State was accomplished. It was the drafting body for the preliminary papers, which meant that it considered, corrected, and reviewed the work of individual officers. It was therefore the first important step in the long process of obtaining the approval of a particular policy within the Department of State. For this reason, the work of the Committee was exceptionally important. Id. at 14–5. In the hierarchy of the committee system that developed for the formulation of the post-war policy of the U.S. government, the Inter-Divisional Area Committee occupied a position at the bottom of the pyramid. Depending upon the procedure in effect at various times during 1944–45, the papers of the Committee would generally be submitted to the Post War Programs Committee, to the Policy Committee, or to the Staff Committee. Depending upon the decision of these higher groups, the papers would then go to the President or State-War-Navy Coordinating Committee for further consideration or be held in the Department of State pending developments. There were, of course, many changes in the papers after they left the Inter-Divisional Area Committee, but these papers were given their first definite formulation in this group and hence their most extensive consideration. In this latter sense in particular, the Inter-Divisional Area Committee was the pivotal “Working Committee” in the post-war planning program of the Far East. Id. at 15.

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a request for U.S. mediation, submission to the ICJ, submission to the U.N. Security Council, and even a request for U.S. military intervention based on their security treaty. In sum, the United States maintained its position according to its preferential order as follows: first, the United States would take no action inasmuch as both governments would try to settle the dispute by direct negotiation; second, if the Japanese government requested the U.S. government to act as a mediator in this dispute, the United States would refuse, and instead suggest that the matter might appropriately be referred to the ICJ. The United States could inform the Japanese government that this procedure might be preferable to submitting it to the United Nations; and third, if the Japanese government requested the legal opinion of the U.S. government on this question, the United States would make available to the Japanese government the U.S. position on the Liancourt Rocks as stated in the Rusk note of August 10, 1951,75 and recommend adjudication by the ICJ.76

IV. Conclusion Despite the emphasis that very careful drafting of the territorial clauses of the San Francisco Peace Treaty was to be made in order to ensure that no islands would be left in disputed sovereignty, today, half a century after conclusion of the San Francisco Peace Treaty, its uncertain legacy is still evident in East Asia. This is particularly so given that historical facts did not count as a major factor in the post-World War II territorial dispositions in East Asia. Territorial dispositions by the San Francisco Peace Treaty were largely reflective of the Allied Powers’ policy in the post-World War II territorial arrangements in East Asia without serious consideration of the interests of the local rival claimants to title over specific territories. The fact that they were more concerned about their own geo-political and strategic interests resulted in outcomes perpetuating the current territorial disputes in East Asia.

75

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Memorandum Regarding Possible Methods of Resolving Liancourt Rocks Dispute, supra note 70. Outgoing Telegram by Dean Rusk, Sec’y of State to U.S. Embassies in Korea and Japan (Mar. 27, 1961) (on file with U.S. National Archives and Records Administration); see also Outgoing Telegram to U.S. Embassies in Korea and Japan by John F. Dulles, Sec’y of State (Dec. 8, 1953) (on file with U.S. National Archives and Records Administration) (“Issue seems less acute at moment so perhaps no action on our part required. However in case issue revived believe our general line should be that this issue, if it cannot be settled by Japanese and Koreans themselves, is kind of issue appropriate for presentation International Court of Justice”).

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The ongoing territorial disputes in East Asia, as this research demonstrates, involve intertwined political and legal issues. In other words, these three territorial disputes have multi-faceted implications for the disputants on the one hand, and for disputants and the interested powers, notably the United States on the other. The rivalry between the United States and the then-Soviet Union in the period of Cold War, and afterward with Russia; the U.S.’s complicated stance against the cross-strait relations between China and Taiwan; and the U.S.’s hands-off policy against the territorial disputes between Korea and Japan are only partial examples of U.S. involvements in the territorial disputes in East Asia. This is all the more so given that regional stability in East Asia has been largely influenced by U.S. security interests. Geographically and geo-politically, the East Asian region has maintained its notorious reputation for the most complexity in the field of territorial and maritime disputes among its neighboring countries. It also can be said that the legal issues of the East Asian region involve many aspects of the 1982 United Nations Convention on the Law of the Sea (hereinafter UNCLOS).77 Given the exercise of maritime jurisdiction in the form of territorial sea, contiguous zone, exclusive economic zone, and continental shelf to islands and, in some cases, rocks, the outcome of maritime boundary disputes often depends on ownership and the classification of such features as an island or a rock sustaining human habitation or economic life. In sum, “territorial issues determine matters of maritime delimitation. Territorial disputes have their roots in the past whereas maritime delimitation is future-oriented once the territorial issues have been settled.”78 As to the determination of the question of sovereignty by applying the general understanding of constituting a valid claim to territory from the perspective of international law, the outcome of this research indicates as follows:

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All claimants, with the exception of Taiwan (given its questionable status it does not appear to be eligible to be a party to the UNCLOS), ratified the new 1982 UNCLOS. The dates of ratification of UNCLOS by the disputants over the three islands in East Asia are as follows: China (June 7, 1996; with declaration), Japan (June 20, 1996), Korea (January 29, 1996), and Russia (March 12, 1997; with declaration) United Nations Convention on the Law of the Sea of 10 December 1982, Dec. 10, 1982, 1833 U.N.T.S. 396, available at http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty6.asp. See also A.E. Boyle, UNCLOS, ITLOS and the Settlement of Maritime Boundary Disputes between Taiwan and Japan, in International Law Conference on the Dispute over Diaoyu/ Senkaku Island (Taiwan Law Soc. & Taiwan Institute Int’l Law eds., 1997). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), 1994 I.C.J. 112, 226 (July 1), available at http://www.icj-cij.org/icjwww/idocket/iqb/iqbframe. htm (separate opinion of Judge Kooijmans).

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By evaluating historical records and other evidence, it is reasonable to reach the conclusion that Japan cannot rightfully claim ownership of the Kurile Archipelago, including Etorofu, Kunashiri, and Shikotan, that clearly fit the terminology of either Kurile Archipelago or Kurile Islands. Japan has only a rightful title to the Habomais placed outside of the currently disputed “Kurile Islands.” Most significantly, by failing to sign the San Francisco Peace Treaty, Russia, on the other hand, does not, and cannot, have clear legal title to the Kurile Islands (Etorofu, Kunashiri, Shikotan, and the Habomais) thereunder. In sum, the outcome of the territorial dispute over the Kurile Islands may be itemized as follows: first, there is a legal ownership vacuum on Etorofu, Kunashiri, and Shikotan, and Russia has exercised its jurisdiction over them without any international endorsement; and second, Russia should be required to return the Habomais to Japan, due to Japan’s rightful title to the Habomais and Russia’s legally groundless occupation of them. Meanwhile, the presence of a significant Russian population on the islands for over half a century introduces an additional legal dimension of the principle of self-determination. As regards to the Senkaku Islands, the detailed evidence produced by the Chinese side coupled with the fact that the islands in question are remote, isolated, and uninhabited, place China and Taiwan in a stronger position than Japan, at least up until January 1895, when Japan incorporated the islands into Japanese territory. This is all the more so given that Japan has produced virtually no evidence of its sovereign activities over the Senkaku Islands, despite the fact that the probative value of the submitted Chinese historical evidence can also be questioned given its nature. With regard to the Senkaku Islands defined in the San Francisco Peace Treaty, the Senkaku Islands were not included as either Chinese and Taiwanese or Japanese territory by the drafters of the San Francisco Peace Treaty; and, Article 3 of the San Francisco Peace Treaty did not, to the point of specificity, define the territories that were placed within the area of the U.N. trusteeship with the United States as the sole administering authority. However, China and Taiwan’s virtual inaction over the Senkaku Islands during the very recent material periods might have strong implications of abandonment. Accordingly, overall one is inclined to conclude that Japan has a stronger claim to the disputed islands. The historical evidence supporting the claimants’ respective claims to the Liancourt Rocks would indicate that Korea has probably made out a better case, despite Korea’s virtual inaction over the Liancourt Rocks during the material periods. When Japan agreed in Article 2 of the San Francisco Peace Treaty to renounce all right, title, and claim to Korea, the drafters of the treaty did not include the Liancourt Rocks within the area to be renounced. In determining what course of action should be taken in the light of this development, the question arose whether the San Francisco Peace Treaty left the Liancourt Rocks

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to either Korea or Japan. Therefore, the question which claimant has lawful territorial sovereignty or ownership over the Liancourt Rocks takes us back to the question whether the Liancourt Rocks belonged to Korea prior to Japan’s alleged 1905 incorporation. In other words, again, it is the issue of the degree of probative value of historical evidence produced by Korea, which outweighs that of Japan. To appreciate the nature of the territorial disputes over Liancourt Rocks, due consideration should be given to the historical relationship between Korea and Japan. Japanese colonization of Korea commenced in 1904, a period which predates Japan’s official incorporation of the Liancourt Rocks into Shimane Prefecture. Despite determining the abstract legal question of sovereignty over the disputed islands in East Asia, it is quite another thing to effectuate it in practice. Given the institutional void in the East Asian region insofar as the resolution of territorial disputes is concerned, and given the current political atmosphere in the region, one is skeptical of the feasibility of a regional dispute resolution mechanism any time soon.79 Be that as it may, it is imperative that the disputants approach the issues through dialogue and a spirit of compromise. An all-or-nothing approach, which obviously does not reckon with the mutual interests of the disputants, will only aggravate an already precarious situation. Therefore, it is suggested that various confidence building measures, including joint development of the disputed maritime zone for the mutual benefit of all the affected parties, should be engendered first, instead of a hasty emphasis on the question of sovereignty over the disputed territories. Finally, every effort should be made to determine the real worth of the disputed territories instead of placing undue reliance, as is presently the case, on exaggerated notions of what is at stake. All the claimants (China, Japan, Korea, Russia, and Taiwan) over the Kurile Islands, Senkaku Islands, and Liancourt Rocks, respectively, do have certain international legal obligations in accordance with the U.N. Charter principle of peaceful settlement of disputes, notably the principles enshrined in Article 2 and Article 33(1). The duty to conduct good faith negotiations in certain circumstances also finds substantial support in the recent decision by the ICJ in the Gabcíkovo-Nagymaros Project, as the ICJ emphasized that good faith negotiations should be conducted under international law.80

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See M.K. Young, Regional Institutions in East Asia and The Pacific: Is the Time Ripe?, 89 Am. Soc’y Int’l L. Proceedings 471 (1995); G. Triggs, Confucius and Consensus: International Law in the Asian Pacific, 21 Melb. U.L. Rev. 650 (1997). Gabcíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 78–79, 83 (Sept. 25) (quoting its Judgment in the 1969 North Sea Continental Shelf cases).

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Additionally, it is submitted that the mode of resolution and the legal arguments in respect of these controversies in East Asia shed light on several ongoing disputes in other regions in Asia including, inter alia, the Spratly Islands and Paracel Islands.81 Therefore, the eventual resolution of these disputes implicates the regional dynamics of territorial dispute settlements among several Asian nations.

81

For brief information on this issue, see generally Border and Territorial Disputes 469–71, 542–45 (John B. Allcock, et al. eds., 1992); Greg Austin, China’s Ocean Frontier: International Law, Military Force and National Development 98–161 (1998); Monique Chemillier-Gendreau, Sovereignty over the Paracel and Spratly Islands (2000); C.C. Joyner, The Spratly Islands Dispute: What Role for Normalizing Relations between China and Taiwan, 32 New Eng. L. Rev. 819 (1998); C. Liu, Chinese Sovereignty and Joint Development: A Pragmatic Solution to the Spratly Islands Dispute, 18 Loy. L.A. Int’l & Comp. L. Rev. 865 (1996); L.A. Mito, The Timor Gap Treaty as a Model for Joint Development in the Spratly Islands, 13 Am. U. Int’l L. Rev. 727 (1998); S. Sharma, Territorial Acquisition, Disputes and International Law 282–90 (1997); J. Shen, International Law Rules and Historical Evidences Supporting China’s Title to the South China Sea Islands, 21 Hastings Int’l & Comp. L. Rev. 1 (1997).

Chapter V A Possible Practical Solution for the Dispute over the Dokdo/Takeshima Islands from the Perspective of the Law of the Sea Atsuko Kanehara* I. Introduction This chapter will deal with the dispute between Korea and Japan over the Dokdo/Takeshima Islands from the perspective of the law of the sea and not as a typical territorial dispute as such. It will focus upon the recent incidents that have occurred between them. The reason why the author finds an undoubted significance in such an examination is that the cooperation and differences1 which the two countries acknowledged and realized in these occasions are strongly expected to be able to shed practical light upon the dispute that exists at present. For instance, in 2005 Korea and Japan narrowly in a friendly manner managed a conflict in the case in which the Japanese Coast Guard exercised hot pursuit under Article 111, paragraphs 1 and 2 of the United Nations Convention on the Law of the Sea (UNCLOS) against a Korean fishing boat. The Korean vessel was alleged to have committed illegal fishing in the Exclusive Economic Zone (EEZ) of Japan. After the Korean vessel escaped into the high seas, the Japan Coast Guard vessel and Korean Maritime Police vessels faced off against each other. After a two-day standoff, this incident was peacefully resolved through intensive negotiations on the spot at sea. The master of the Korean fishing boat was handed over to the Korean authority and Japan accepted a sort of bond from the Korean boat.2 * Professor of Public International Law, Faculty of Law, Sophia University. 1 The cooperation accomplished between the two countries will be touched upon later in appropriate places in relation to issues of fisheries and delimitation of the Continental Shelf existed between them. 2 Regarding the incident, see Atsuko Kanehara, Fisheries Law Enforcement by Japan in Its Exclusive Economic Zone and Hot Pursuit from the Exclusive Economic Zone onto the High Seas of a Foreign Vessel Which Failed to Obey to Heave to, 48 Japanese Ann. Int’l L. 199 (2005). The sea area

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Then in 2006, the two countries faced tense situations concerning marine scientific research planned by each country and actually conducted by the Korean side in the sea areas where claims of the two countries for the Exclusive Economic Zone (EEZ) overlapped due to the territorial dispute over the Dokdo/ Takeshima Islands.3 Japan declared its plan for marine scientific research to be conducted in April of 2006, and in the face of harsh protests by Korea, Japan refrained from carrying out its plan. Then, Korea, in turn, made public its plan to conduct marine scientific research in July of the same year, and despite the formal protest against it by Japan, Korea exercised its marine scientific research. After intensive negotiations, both countries finally decided to conduct their marine scientific research cooperatively being accomplished in 2006. Such cooperation is expected to continue.4 In addition, they agreed to resume negotiation in respect to the issue of maritime delimitation, especially that of the EEZ including the sea areas where the claims of the two countries for the EEZ overlapped, and this was after a six-year pause since 2000. This resumption of negotiations can be regarded as a successful result through the substantial talks between the two countries. Generally speaking, islands cause many difficult problems under the law of the sea.5 In the case of the Dokdo/Takeshima Islands, however, Korea and

3

4

5

concerning which the resolution of the conflict situation was achieved was the high seas and the EEZ of Korea at the same time, depending on matters. In relation to the matters designated by Article 56 of the UNCLOS the sea areas were the Korean EEZ, and for others they are the high seas. From such a viewpoint, too, this incident provoked an interesting issue regarding to the distribution of a sovereign right and jurisdiction between a country conducting the hot pursuit country and the coastal state of the EEZ or the flag state in respect to a fishing boat flying its flag on the high seas. Id. at. 114–120. As for the incident and some analysis principally from the perspective of Article 74, Paragraph 3 of the UNCLOS, see Atsuko Kanehara, Marine Scientific Research in the Waters Where Claims of the Exclusive Economic Zones Overlap between Japan and the Republic of Korea-Incidents between the Two States in 2006, 49 Japanese Ann. Int’l L. 98, 98–122 (2006). More generally, relating to the possible questions raised by the marine scientific research on the sea areas where multiple countries make claims for the EEZ, see Atsuko Kanehara, Nikkan Kaiyo Kagaku Chosa Mondai heno Kokusaiho ni Motozuku Nihon no Taio [Japanese Positions under the Relevant International Law Rules in Respect to the Problem of the Marine Scientific Research between Republic of Korea and Japan] 1321 Jurisuto [Jurist] 59 (2006) ( Japan) [hereinafter Japanese Positions]; Atsuko Kanehara, Marine Scientific Research in the Sea Zones Where Claims of Two States for the Exclusive Economic Zone Overlap under the United Nations Convention on the Law of the Sea (unpublished paper submitted to the 7th Science Council of Asia (SCA) Conference, SCA Joint Project Workshop D, International Cooperation in Securing the Ocean in Asia, held at Okinawa Convention Centre in Japan) ( June 15, 2007). Article 121 of the UNCLOS prescribes the condition for a rock to be entitled to have their own jurisdictional sea areas and sea beds. For a thorough examination in Japanese of the various positions of countries and drafting history of the relevant provisions of both 1958 Geneva

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Japan do not have different positions as to their status as islands.6 Considering their geographical location, it might not cause such a complicated problem regarding the issues of a base point and the legal effect on maritime delimitation. Which country can include the islands in the base point is dependent on resolving the issue of which country has territorial title over the Islands. In other words, the territorial dispute over the Islands forms the very crux of the dispute over EEZ delimitation. Thus, it can be said that the territorial dispute as such over the Dokdo/Takeshima Islands has an unfortunate impact upon the law of the sea issue that lie between the two countries. Taking into consideration of this fact, there is the hint of a possible practical solution to resolve the differences between the two countries in the near future from the perspective of the law of the sea. In addition, judging from the way how each side coped with these recent incidents seems to be in line with a practical tendency in their thinking. It is hoped that if their cooperative attitudes could reach a productive result on the law of the sea issues with regard to the Dokdo/Takeshima Islands, it could at the same time circumscribe their core differences. A simplification and redefinition of the current deadlocked situations will allow Korea and Japan time and opportunities for successful negotiation in order to reach a final resolution of the dispute. Looking at the situation from the other side of the coin, if the two countries do not have possibility to gain substantial benefits by securing sovereignty over the Dokdo/Takeshima Islands, why do they so persistently adhere to the sovereignty over the Islands, such a small portion of land at sea?7 As sovereign states why should they spend so much time and energy in conflict with each other over this dispute to the point of risking the destruction of friendly and cooperative relations between them that have continued for a very long time?

6

7

Conventions on the Law of the Sea and the UNCLOS, see Soji Yamamoto, Shima no Kokusaiho jo no Chii [Legal Status of an Island in the Law of the Sea] (1991) ( Japan). Whether a portion of land at sea is an island or rock is an important question for the interpretation of Article 121 of the UNCLOS. However, the author clearly points out the fact that the decision as to whether a certain land at sea is an island or a rock could not give a definitive answer for the question on the law of the sea, namely whether the land at sea is entitled to have its own jurisdictional sea areas of the state that has the territorial sovereignty over the land at sea. This is due to the lack of clarity of Article 121 of the UNCLOS. Above all, it does not define a rock itself, while it gives a definition of an island. It solely sets forth the condition for a rock to be entitled to have its own jurisdictional sea areas and seabeds. In addition, Korea and Japan have not disputed the status of the Dokdo/Takeshima Islands as islands, and therefore, the author in this paper stops short at just indicating the issue. As for a significant analysis about this issue, see Jon M. Van Dyke, Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary, 38 Ocean Dev. & Int’l L. 196 (2007). The size of the islands is 0.23 km2.

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By examining the dispute from the viewpoint of the law of the sea and thoroughly considering what benefits can or cannot be acquired by claiming for and holding sovereignty over the Dokdo/Takeshima Islands would undoubtedly lead both countries to a wise and cool hearted political and legal decision as sovereign states. Further, very importantly, as Asian countries, Korea and Japan can take this opportunity in demonstrating to international society a successful management of disputes contributing to international practice that can develop the law of the sea and the international law of dispute settlement. The two countries are both state parties to the UNCLOS, which is the most important international convention on the law of the sea and sometimes referred to as “the Constitution of the Law of the Sea.” If both countries succeed in resolving the Dokdo/ Takeshima Islands dispute under the law of the sea, it will undeniably present a model for states in the world that are or will be involved in the similar situations as those of Korea and Japan.8 The following incidents will be touched upon in this chapter: the marine scientific research conducted in the sea areas where the claims of the two countries for the EEZ overlap; the cooperation concerning the fisheries in the sea areas including the disputed sea areas;9 the delimitation of the continental shelf by the Agreements that contain delimitation; and also a scheme of joint development of resources on the sea bed. In section II, I will provide a succinct survey of how islands cause conflicts in the law of the sea. Then, there will be a re-definition of the Dokdo/Takeshima Islands dispute focused upon from the perspective of the law of the sea. In section III, I will explain the recent incidents occurring between Korea and Japan mentioned above so that I may derive their value as an example of international conflict management of those incidents achieved by the two countries. In section IV, I will conclude this chapter with some suggestions about a possible practical solution for the Dokdo/Takeshima Islands dispute.

8

9

Korea and Japan concluded an Agreement on Joint Development of the continental shelf resources in 1974. It set an important precedent of joint development of the continental shelf resources early in the 1970’s which will be explained later in this chapter. The People’s Republic of China and Japan are in a similar situation as that of between Korea and Japan, and they agreed in 2001 to a prior notification system regarding marine scientific research to be conducted in the sea zones where the claims of the two countries for the EEZ overlapped. This also may form a valuable practice of a provisional arrangement under Article 74, Paragraph 3 of the UNCLOS. The phrase of “the disputed sea areas” is difficult to define precisely. In this chapter, in appropriate cases and in case of no risk of misunderstanding, the phrase will be used as designating the sea areas lying between the delimitation lines that Korea and Japan asserts to each other as the delimitation line of the EEZ.

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II. Conflicts in the Law of the Sea over the Existence of Islands 1. General Survey a. Interests of Sovereign States in Holding Territorial Sovereignty over Islands Korea and Japan strongly want to ensure territorial sovereignty over the Dokdo/ Takeshima Islands. In this regard, the fundamental question is: What stakes do the two countries precisely have in the island? Countries spend extravagant expenditures and invest significant manpower to acquire and secure territorial sovereignty over an island. As sovereign states, both countries should take the fact into serious consideration in deciding their policy of how to manage the Dokdo/Takeshima Islands dispute. In this regard, the law of the sea perspective may shed a realistic and practical light on the questions that are raised here. As for the presuppositions for such an examination, a general survey is indispensable to examine the issues raised by the existence of an island under the law of the sea. b. Issues Raised under the Law of the Sea with regard to Islands Islands present complex questions for the law of the sea. Since both Korea and Japan are state parties to the UNCLOS, it is appropriate to find examples of disputes caused by the existence of an island that may occur under the UNCLOS. For instance, states may be in conflict with each other over the following issues. First, it is critical to determine whether or not “a portion of land” at sea has the status of “an island” under the UNCLOS. This is because islands can have its own jurisdictional sea areas and seabeds, and islands can give huge jurisdictional sea areas and seabeds to the state that has sovereignty over the island,10 especially when an island is located at a certain distance from its coast. Second, in comparison with the first issue, when an island is near coast lines, it is frequently argued whether or not the island forms a base point on the baseline from which the width of a territorial sea or other jurisdictional sea areas and seabeds are measured.11 Third, depending on the location of an island, the legal effect of its existence upon the maritime delimitation becomes a very difficult issue to be dealt with. In judicial and arbitration procedures as well as negotiations between the parties to a dispute, this issue frequently poses difficulties for courts, arbitral boards, and the parties. For example, one issue is whether or not it is equitable to give full effect to an island and move the delimitation line toward the direction of the other state. Or is it more equitable 10 11

UNCLOS art. 121, ¶ 2, Dec. 10, 1982, 1833 U.N.T.S. 396. Concerning a straight base line, Article 7, Paragraph 1 of the UNCLOS permits coastal states to use islands along the coast in its immediate vicinity as a base point.

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to give only a half effect to the island and move the delimitation line toward the other state? Why is it given half effect and not two-thirds? Without convincing reasons in many judicial and arbitration cases, islands have been given a half effect in drawing a maritime delimitation line.12 Why are these questions so serious to the states concerned? The answer almost totally depends on each case. States have multiple interests in relation to nearby sea areas and seabeds such as fishery resources, mineral deposits, security or military concerns, as well as their importance as sea-lanes for navigation, and so on. Thus, sovereign states should seriously assess, on a case by case basis, what particular benefits will be obtained and secured in determining its position concerning an island. If the most beneficial solution for both state parties to an island dispute can be derived from that consideration, then such a solution can be possibly the most practical not only from the perspective of the law of the sea but in a wider context of the dispute. Needless to say, the truism that sovereign states have a strong tendency in desiring the enlargement of their territories by claiming territorial sovereignty over islands should be set aside. This is because such a desire frequently prevents countries from judging what is most beneficial in resolving such disputes. 2. The Dokdo/Takeshima Islands Dispute to be Re-Defined from the Viewpoint of the Law of the Sea a. The Dokdo/Takeshima Islands has been becoming the Critical Point for the Delimitation of the EEZ Both Korea and Japan define Dokdo/Takeshima as islands under the UNCLOS revealing a commonality in their positions. The Dokdo/Takeshima Islands are situated between both countries and it is not precisely said to be in the imme12

In maritime delimitation cases, “the relevant circumstances” to be considered is one of the most complicated issues, and it may give a subjective nature to the decisions. Among the “relevant circumstances,” how to reflect the effect of islands on delimitation is or can be very fungible and subjective. Concerning the question, see Malcolm D. Evans, Maritime Boundary Delimitation: Where Do We Go From Here?, in The Law of the Sea-Progress and Prospects 137, 137–160 (David Freestone, Richard Barnes & David Ong eds., 2006); Malcolm D. Evans, Maritime Delimitation and Expanding Categories of Relevant Circumstances, 40 Int’l Comp. L.Q. 1, 30–33 (1991). As for the treatment by the precedents of relevant circumstances, see also Atsuko Kanehara, Tairikudana no Kyoukaikakutei ni okeru Kohei no Gensoku [Equitable Principle of Continental Shelf Delimitation], 101 Kokka Gakkai Zasshi [ J. Ass’n Pol. & Soc. Sci.] 493–559, 601–648, 766–821 (1988) ( Japan) [hereinafter Equitable Principle]; Atsuko Kanehara, Some Remarks on Developing Rules Concerning Maritime Delimitation Mainly of Continental Shelf [hereinafter Developing Rules] (unpublished paper submitted on the Occasion of Commemoration of the Golden Jubilee of Asian and African Legal Consultative Organization, Meeting of Experts on the Emerging Issues on the United Nations Convention on the Law of the Sea) (Nov. 24, 2006) (on file with author).

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diate vicinity of each state’s coastline. As to whether the Dokdo/Takeshima Islands form a base point on the baseline from which a width of the territorial sea is measured, the two countries have disputed this issue. However, that issue is solely incidental to the claims of territorial title over the islands. Each country has incorporated the Islands as a base point when they assert the delimitation line of the EEZ between them, and such attitudes of both are in line with their claims of territorial title over the Islands. Each side insists on a median line as the delimitation line for the EEZ using the Islands as a base point on the baseline from which the width of their territorial sea and their EEZ are measured. In this respect, Korea recently changed its position so as to regard the Islands as a base point. Thus, the remaining point of conflict is clearly defined as the issue as to which state has sovereignty over the Dokdo/Takeshima Islands. At the same time, however, we have to acknowledge the reality that unless the dispute concerning territorial title over the Islands is settled, the delimitation of the EEZ will not be perfectly resolved. Regarding the delimitation of the continental shelf, since the two agreements concluded in 1974 between the two countries are effective, the issue will not necessarily be seriously raised at this time. Putting aside the point that sovereign states have a strong tendency to enlarge their territories, the question remains as to what benefits would Korea and Japan gain if either could secure sovereignty over the Dokdo/Takeshima Islands? The conflicts and cooperation that the two countries have undergone may give some indication at least from the practical viewpoint of the law of the sea. The conflicts and cooperation between the two countries have a long history, especially in the matter of fisheries. Before the UNCLOS, and the establishment of the legal regime of the EEZ over which a coastal state holds a sovereign right relating to exploration and exploitation of living and non-living marine resources, Korea and Japan concluded an agreement in 1965 to manage fisheries in the waters lying between them.13 After both countries had become parties to the UNCLOS, and after its coming into force, they agreed to a new Fishery Agreement which was signed in 1998 and came into force in 1999.14 The new agreement incorporated into its foundation the essence of the legal regime of the EEZ under the UNCLOS.15

13

14

15

Agreement on Fisheries between Japan and the Republic of Korea, Japan-S. Korea, June 22, 1965, provided in both Korean and Japanese, available at http://www3.mofa.go.jp/mofaj /gaiko/treaty/pdf/A-S40-247_1.pdf; Minutes agreed by both parties on the Agreement, http:// www3.mofa.go.jp/mofaj/gaiko/treaty/pdf/A-S40-247_2.pdf. Agreement on Fisheries between Japan and the Republic of Korea, Japan-S. Korea, Nov. 28, 1998, available at http://www3.mofa.go.jp/mofaj/gaiko/treaty/pdf/A-H11-1039.pdf (provided in both Korean and Japanese). For instance, id. pmbl., arts. 1, 2.

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In 1974, two agreements were established by Korea and Japan regarding the continental shelf with one determining the delimitation line for the northern part, and the other setting up a joint development scheme on the designated seabed areas. Considering the history and the current situations between them, what are the benefits for both countries to be gained from the Dokdo/Takeshima Islands? To examine this point in the next section, a detailed explanation will be given with these agreements and the recent incidents that have occurred over the sea areas surrounding the Islands.

III. Recent Incidents Concerning the Dokdo/Takeshima Islands Dispute 1. Seabed: The Continental Shelf a. The Two Agreements Concluded in 1974 Preceding the current dispute concerning the EEZ delimitation and other issues relating thereto, the two countries succeeded in managing the continental shelf delimitation. Korea and Japan concluded two agreements in 1974 which came into force in 1978. One is for the northern part (Northern Part Agreement)16 and the other for the southern part (Southern Part Agreement).17 The Northern Part Agreement provides for the delimitation line on the basis of the median/equidistance method, and the delimitation line generally follows the median line between the two countries. It should be noted that on this median line, the Dokdo/Takeshima Islands were not included as a base point on the baseline from which the width of the territorial sea and the continental shelf are measured.18 In addition, this median line is used to designate the provisional zones where cooperative conservation and management of fishery resources are instituted and where a special legal regime is applied under the newly concluded Fishery Agreement in 1998. The Southern Part Agreement establishes a Joint Development Zone that is mainly located on the Korean side of a hypothetical median line.19 From

16

17

18

19

Agreement Concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries, Japan-S. Korea, Jan. 30, 1974, 1225 U.N.T.S. 103. Agreement Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, Japan-S. Korea, Jan. 30, 1974, 1225 U.N.T.S. 136. Korea quite recently changed its position regarding the median line to be used for the EEZ delimitation between Korea and Japan. In that median line, the Dokdo/Takeshima islands form one of the base points. Regarding the explanation of the Joint Development under the 1974 The Southern Part Agreement, and the current situation of the Continental Shelf delimitation between China and

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the perspective of this chapter, some analysis of the Southern Part Agreement should be meaningful.20 b. Joint Development Scheme in a Context of Disputes on Maritime Delimitation From the Southern Part Agreement, the following two points can be derived that can shed light on a practical solution for maritime delimitation. First, as to the method to resolve the issue of maritime delimitation, Korea and Japan agreed to joint development in place of setting forth a maritime delimitation line. In comparison, there are cases in which a delimitation line is determined concurrently with the establishment of joint development zones.21 For instance, it is assumed that if there is a mineral deposit straddling the delimitation line, a joint development project is undoubtedly useful for the purpose of efficient exploitation of mineral resources. In that case, joint development is conducted even after a delimitation line is agreed to between the states concerned. This practice clearly indicates that joint development can be a tool not only as a final solution but also a provisional solution for maritime delimitation. As will be seen later, joint development of resources can fall under a possible provisional arrangement under Article 74, Paragraph 3 and Article 83, Paragraph 3 of the UNCLOS.22 In case of the Southern Part Agreement, Korea and Japan agreed to the joint development scheme without determining a delimitation line because there were differences in their positions relating to the international principles and rules on the continental shelf delimitation. On the one hand, Korea’s position was that the delimitation should be conducted by respecting the principle of natural prolongation which the International Court of Justice declared as the basis of a coastal state’s sovereign right over the continental shelf in the 1969 North Sea Continental Shelf Case,23 five years before the conclusion of the Southern Part Agreement; and, on the other hand, Japan argued that the delimitation should be conducted based upon the median/equidistance method in accordance with Article 6 of the 1958 Geneva Convention on the Continental Shelf. To overcome the differences between them, and also to practically proceed toward

20

21 22 23

Japan, see Yukiya Hamamoto, Tairikudana no Kyodo Kaihatsu, [Joint Development of the Continental Shelf ], 565 Kokursaimondai [Int’l Aff.] 30 (2007) (Japan). As for an interim arrangement pending final solution of delimitation issues, including the significance of joint development scheme, see, for instance, Rainer Lagoni, Interim Measures pending Maritime Delimitation Agreements, 78 Am. J. Int’l L. 345 (1984). Hamamoto, supra note 19, at 36–38. As for this issue, see Kanehara, Developing Rules, supra note 12. North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.) 1969 I.C.J. 3, para. 43.

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exploitation of seabed resources as fast as possible, both countries chose and agreed to the joint development scheme. Joint development is a very practical tool for resolving the issue of maritime delimitation, and international practice for it both in cases where solutions were found with and without delimitation can be found. Prominent writers also acknowledge the practical significance of joint development of resources as a tool to resolve disputes on continental shelf delimitation.24 Korea and Japan achieved resolution in a relatively early period of maritime and the continental shelf delimitation in 1974. This is a leading case of a successful agreement on joint development. Second, in close relation to the first point, joint development may be the method of not only a “final resolution” for maritime delimitation problems but also provide a “provisional solution” for it. Article 83, Paragraph 3 of the UNCLOS states that: Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

Article 74, Paragraph 3 for EEZ delimitation provides for the same rules as Article 83, Paragraph 3. A joint development scheme can fall under the ”provisional arrangement” of continental shelf delimitation of Article 83, paragraph 3, and for an EEZ under Article 74, Paragraph 3. As a provisional arrangement under Article 83, Paragraph 3 of the UNCLOS, joint development has such status and gives to the states concerned practical benefits taking into account the following considerations. In general, disputes over maritime delimitation take a protracted period of time until a final resolution is reached, and in particular, those cases involving disputes of territorial title over islands such as the dispute over the Dokdo/ Takeshima Islands. Joint development agreed to by the states concerned pending the final resolution of delimitation may avoid undesirable and inappropriate results such as the freezing of the exploitation of resources. In addition, as far as the parties to the dispute can agree on joint development, friendly relation may be maintained and the parties can move forward in their negotiation on the completion of final delimitation while concurrently carrying out a joint development scheme.25 In this regard, in addition to the adoption of a joint development scheme, inclusion of disclaimer clauses as to a future and final decision and/or prospec24 25

See Hamamoto, supra note 19; Lagoni, supra note 20. See Kanehara, Developing Rules, supra note 12; Hamamoto, supra note 19; Lagoni, supra note 20.

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tive review clauses may be useful in order to make progress toward conclusion of a final agreement. The use of that type of provision in the negotiations and agreements for maritime delimitation can bear the continuous and flexible nature of situations and the development of the knowledge about the existence of resources to be expected on the continental shelf. The parties can also consider the development of the international rules on delimitation during the pending period and can reflect and incorporate it into their final agreement. The Southern Part Agreement contains such a disclaimer clause concerning the joint development zone providing that any provision of the Agreement may not be regarded as deciding the issue of sovereign rights over the joint development zone, or influencing the positions of the both parties regarding continental shelf delimitation.26 Further, it also includes a provision for stalling disagreement regarding delimitation for as long as fifty years.27 In reflecting the object and purpose of these provisions, Korea and Japan have been still in the process of the continental shelf delimitation and revision of the Southern Part Agreement in that sense. As mentioned in the introduction to this chapter, it is expected that the two countries will consider and reflect on the development of the relevant international rules on continental shelf delimitation in future reviews of the 1974 Agreement. It will certainly be a good opportunity for the two Asian countries to demonstrate a leading international practice to the world. From a different point of view, however, at least until now, the joint development zone designated by the Southern Part Agreement has not experienced substantial exploitation and given commercial benefits.28 This is due to the uncertainty of whether the expected mineral deposits exist. The time for review will come in 2028, and whether or not that will become an openly contentious issue between the two countries depends on the situation of oil production and the oil market in the world. In addition, the resolution of EEZ delimitation in the near future will have an impact on the review of the Southern Part Agreement regarding the continental shelf. Considering joint development as a “provisional arrangement” for the EEZ, Article 74, Paragraph 3 is read as the same as Article 83, Paragraph 3. Accordingly, the analysis here about the significance of the joint development scheme under the Southern Part Agreement holds true, mutats mutandis, to the issue of EEZ delimitation between Korea and Japan. The next section takes a look at issues concerning EEZ delimitation between the two countries.

26

27 28

Agreement Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, supra note 17, art. 28. Id. art. 31. Hamamoto, supra note 19, at 32.

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2. EEZ Delimitation and the Issues Thereto a. Fisheries (1) From the 1965 Fishery Agreement to the 1998 Fishery Agreement In 1965, setting aside their territorial dispute over the Dokdo/Takeshima Islands, Korea and Japan concluded the Fishery Agreement. It established a twelve-mile Exclusive Fishery Zone for each Party,29 and also a joint control zone where the two parties should take regulative measures pending the realization of conservation and management measures for the purpose of ensuring maximum sustainable yields.30 The Joint Fishery Committee would be in charge of scientific research in order to recommend with regard to the regulative measures to be taken.31 After the UNCLOS came into force and the two countries ratified it, they renewed the Fishery Agreement in 1998. (2) The 1998 Fishery Agreement Based upon the EEZ regime under the UNCLOS, on each side of the tentative delimitation line, sea areas are regarded as the EEZ of each country.32 The tentative delimitation lines are the same as those adopted by the 1974 Northern Part Agreement on the continental shelf which does not include Dokdo/Takeshima as a base point on the baseline from which the width of the territorial sea and the continental shelf are measured. Accordingly, for the tentative delimitation line of the EEZ under the 1998 Fishery Agreement, the Dokdo/Takeshima issue was again set aside or ignored as had been in the previous 1965 Fishery Agreement. The 1998 Fishery Agreement establishes two provisional zones: the Northern Provisional Zone and the Southern Provisional Zone.33 In this regard, the new Fishery Agreement utilized the method of provisional zones in place of completing a final delimitation of the EEZ as well. The demarcation of the provisional zones, especially the Northern Provisional Zone including the sea areas where the Dokdo/Takeshima Islands are situated, raised a contentious

29

30 31

32 33

Agreement on Fisheries between Japan and the Republic of Korea 1965, supra note 13, art. 1, ¶1. Id. art. 3. Id. arts. 67. For an analysis and the introduction of the adopting processes of the 1965 and 1998 Agreements, see, e.g., Kiminobu Hukamachi, NIkkan Gyogyo Mondai [Fisheries Issue between Japan and Korea], in Gendai no Kaiyoho [The Modern Law of the Sea] 196, 196–223 (Chiyuki Mizukami ed., 2003) ( Japan). UNCLOS, supra note 10, art. 7. Agreement on Fisheries between Japan and the Republic of Korea 1998, supra note 14, art. 9.

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issue during the negotiation process for the adoption of the Agreement.34 This was because in those sea areas there exits a rich fishery resource deposit referred to as “Yamato Tai” or “Yamato Deposit.” Korea insisted that the provisional zone should be set widely. This was intended to prevent Japan’s EEZ from the covering almost all of the “Yamato Tai.” Japan took the position that the Northern Provisional Zone should be confined to the sea areas which would be subject to the influence of the existence of the Dokdo/Takeshima Islands if they had been taken into consideration in drawing the delimitation line. By taking this position, Japan purported to widen its EEZ so as to include “Yamato Tai” as much as possible. In the final text of the Agreement, the eastward limit of the Northern Provisional Zone is determined by the line of 133.5 E Longitude and as the result, 45 percent of the “Yamato Tai” is included in the Northern Provisional Zone and its remaining portion comes to be located in Japan’s EEZ. The Agreement establishes the Joint Fishery Committee that has the power to recommend to the parties conservation and management measures of the fishery resources not only in the two provisional zones but also for the EEZ sea areas of each party.35 Irrespective of minor difference of terms in the relevant provisions of the Agreement, recommendations by the Joint Committee for the two provisional zones should be respected but are not be interpreted to be legally binding. Thus, it is acknowledged that the new Fishery Agreement achieved a measure of success in maintaining cooperative and friendly relation between Korea and Japan in terms of fisheries, although leaving the final delimitation of the EEZ untouched, and setting aside the existence of the Dokdo/Takeshima Islands in the tentative delimitation line as was done in the 1974 Agreements on the continental shelf. (3) Function of the Joint Fishery Committee The Committee has the power to recommend to the parties conservation and management measures of the fishery resources in relation not only to the two provisional zones but also to the EEZ sea areas of the two countries. It may lead to compatible conservation and management of fishery resources on the EEZs of the two countries. It is very similar to the concept of the compatibility principle under Article 7 of the United Nations Convention on Straddling Fish Stocks and Highly Migratory Fish Stocks.36 Needless to say, it also reflects the 34 35 36

Hukamachi, supra note 31, at 204. Agreement on Fisheries between Japan and the Republic of Korea 1998, supra note 14, art. 12. Concerning the concept of conservation and management of fishery resources under the UN Convention, see Atsuko Kanehara, A Critical Analysis of Changes and Recent Development in the Concept of Conservation of Fisheries on the High Seas, 41 Japanese Ann. Int’l L. 9 (1998).

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idea of international and regional cooperation provided by Article 63 of the UNCLOS. In this regard as well, the two Asian countries are a model for other states in the world. 2. Marine Scientific Research (MSR) in the EEZ a. The EEZ and MSR Article 56, Paragraph 1(b)(ii) of the UNCLOS confers on coastal states with EEZ jurisdiction with regard to MSR, and Article 246, Paragraph 2 provides that MSR in the EEZ and on the continental shelf shall be conducted with the consent of the coastal states.37 In 2006, there was a tense situation between Korea and Japan regarding a MSR that was planned to be conducted in the sea areas surrounding the Dokdo/Takeshima Islands over which the two countries’ EEZ claims overlapped. b. The Incidents in 2006 38 In April of 2006, Japan planned its MSR in the waters on the Japanese side from the median line which ran between Ulleungdo and the Dokdo/Takeshima Islands. The MSR planned was a hydrographic survey to study sea bottom topography in the southwest sea areas of the Sea of Japan.39 Korea was going to submit name changes for undersea features on the occasion of the meeting of the Sub-Committee on Undersea Feature Names scheduled in June of 2006. Japan tried to prevent this, and for that purpose, it intended to gather scientific information of the undersea features concerned by conducting its own MSR. As soon as this plan was made public by the Japanese government, Korea issued harsh protests and the latter made clear that every means, including even coercive measures, would be taken in order to intercept Japanese vessels conducting the MSR. On the 21st and 22nd of April, the two countries conducted negotiations. During the talks, Japan required Korea to abandon its proposal

37

38 39

In accordance with Article 246, Paragraphs 3 and 5, depending on nature or kind of the MSR a coastal state has wide discretion or limited one in granting its consent. For a general survey of the incidents in 2006, see Kanehara, supra note 3. A hydrographic survey to study the topography of the sea bottom and sea current survey that Korea planned and carried out in July may raise an issue as to the nature or kind of the MSR. This is because Article 246, Paragraphs 3 and 5 of the UNCLOS differentiate the conditions on granting of consent by coastal state. Furthermore, if the MSR is beyond the reach of the definition set by the Article, as far as it is conducted on the high seas or has the nature of being incidental to navigation as the MSR in order for ensuring safety of navigation, such a MSR can be carried out freely on the high seas as exercising the freedom of use of the high seas. Since both Korea and Japan have not raised this issue, the author here only indicates it as one to be argued under the relevant provisions of the UNCLOS. Concerning the categorization of the MSR, see, for instance, Kanehara, Japanese Positions, supra note 4.

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of changing the names of the undersea features. In return, Korea insisted that Japan give up its plan for the MSR. As a result, three points were agreed to. First, Japan would abandon its MSR plan. Second, Korea would not propose the change of names of the undersea features. Third, negotiation of EEZ delimitation would be resumed in due course which had been discontinued for six years since 2000. On the 3rd of June, Korea explained to Japan its plan for MSR which was a sea current survey to be conducted on the waters including the disputed sea areas.40 Irrespective of Japan’s protest and request of postponement or suspension of the Korea’s MSR plan, Korea commenced and carried out such a survey on the 5th of July in the waters that included the area which lay between the median line that Japan insisted and the median line that Korea asserted. Japan immediately lodged a diplomatic protest and urged Korea to stop at sea.41 On the 4th and 5th of September, another round of negotiation over EEZ delimitation was conducted. During the talks, a joint MSR plan (a survey plan of radioactive release into the sea) was discussed and agreed to which was to be carried out in October of 2006. This joint MSR plan set six points as research spots with three of them being situated in the waters between the Japan’s median line and the Korea’s median line with the remaining three points on the Japanese side of Korea’s median line. This joint MSR was solely performed on an ad hoc basis, and, therefore, it establishes neither a continuous cooperative scheme nor provisional arrangements for MSR in the disputed sea areas. While Japan consistently proposed a prior notification system of planned MSRs to be conducted in the sea areas where the EEZ claims of the two countries overlapped, it was not able to obtain consent from Korea. In contrast, a prior notification system was already agreed in 2001 between the People’s Republic of China and Japan under similar circumstances.42

40

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42

In this context, the disputed sea areas mean those between Korea’s median line and Japan’s median line both of which will be explained in (c) of this subsection. As explained in the supra note 39, it is a difficult issue to define the MSR that is under the jurisdiction of a coastal state of the EEZ under Article 56, Paragraph 1 (b) (ii) of the UNCLOS. It is argued, for instance, military research does not fall under that MSR, and accordingly is not restricted by the prior consent regime by a coastal state of the EEZ. In addition, it is sometimes argued that a sea current survey is incidental to navigation, and thus, it can be conducted without restriction as the freedom of navigation is guaranteed on the sea areas that are EEZs of some coastal states. Concerning the MSR issue between China and Japan and Japanese positions, see Akira Takada, Marine Scientific Research in the Exclusive Economic Zone and Japan-China Agreement for Prior Notification, 44 Japanese Ann. Int’l L. 134, 147–149 (2001).

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c. The Two Countries’ Positions regarding the Delimitation of the EEZ Both are simply arguing that the delimitation line should be a median line. The dispute over the Dokdo/Takeshima Islands comes to the crux of EEZ delimitation. For Japan, the median line (“Japan’s median line”) runs between Ulleungdo and the Dokdo/Takeshima Islands. Korea asserts that the median line (Kore’s median line”) should be between the Oki Islands and the Dokdo/Takeshima Islands. Previously, Korea did not regard the Dokdo/Takeshima Islands as a base point on the baseline, and the prior Korean median line was that running between Ulleungdo and the Oki Islands. Presently, it is asserting that the median line runs between the Oki Islands and the Dokdo/Takeshima Islands. Thus, the territorial dispute over the Islands really forms the core of the dispute over EEZ delimitation. d. Results of the Incidents in 2006 with regard to the MSR and EEZ Delimitation As has been reviewed, no EEZ delimitation was established, and no provisional cooperative arrangements were successful for MSR pending the final resolution of the delimitation issue. Regarding the use of possible dispute settlement procedures, on the 18th of April, Korea submitted its declaration in accordance with Article 298 of the UNCLOS, the core of which was its denial of acceptance of any of the procedures provided for in Section 2 of Part XV of the UNCLOS with respect to all the categories of disputes referred to in paragraph (a), (b), and (c) of Article 298. While Japan has accepted the jurisdiction of the International Court of Justice (ICJ) in accordance with Article 36, Paragraph 2 of the ICJ Statute, Korea has not. Thus, there is no possibility for the ICJ or the International Tribunal for the Law of the Sea to deal with a dispute that involves the issue of the Dokdo/Takeshima Islands. Other compulsory dispute settlement procedures under Section 2 of Part XV of the UNCLOS cannot be triggered either. Negotiation remains for the two countries to resolve the dispute. Fortunately, on the occasion of the conflict that occurred in 2006, Korea and Japan agreed to resumption of negotiations on EEZ delimitation after a six year pause. In addition, while the two countries have not made progress on the issue, they again devised a cooperative method of a joint MSR on an ad hoc basis and continuing on that basis. In general, judging from international practice concerning maritime delimitation, and in particular, in case of the dispute between Korea and Japan, a lengthy period of time is expected to be needed before the two countries are able to reach a final resolution to EEZ delimitation. Furthermore, considering the common interests of international society for the development of scientific knowledge, the significance of the MSR is not confined to the interests of the two countries. Taking this into consideration, the permanent cooperative framework of the MSR in the disputed sea areas

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is undoubtedly preferable pending a final resolution of the dispute on EEZ delimitation. While Japan has consistently proposed to Korea an agreement on a Prior Notification System similar to an agreement in 2001 between China and Japan, Korea has yet to accept it.

IV. Conclusions So far this chapter has examined the dispute over the Dokdo/Takeshima Islands between Korea and Japan from the perspective of the law of the sea, taking up mainly current incidents occurred between the two countries. On the one hand, the purpose of the examination was to circumscribe the differences of the positions of both countries to its very core. It is based upon the author’s firm perception that such a simplification through redefinition of the current deadlocked situation will undoubtedly allow Korea and Japan much time and opportunities for meaningful negotiation in order to reach a final resolution of the dispute. Actually from the perspective of the law of the sea, the two countries have succeeded in managing the issues of continental shelf delimitation, fisheries, and the MSR in the sea areas surrounding the Dokdo/Takeshima Islands. They have taken advantage of joint development of resources on the seabed, provisional zones for the cooperative conservation and management of fishery resources, and the joint MSR project conducted despite being done on an ad hoc basis. Through these arrangements, both countries consistently set aside the question of sovereignty over the Dokdo/Takeshima Islands. In other words, without taking up that entangling issue, they could devise a friendly and practical solution in order to proceed in the exploitation of living and non-living marine resources and gaining scientific knowledge by the MSR that would be beneficial not only for the two countries, but also for international society as well. In addition, these successful arrangements will be an exemplar for other countries that are or will be involved in similar situations as those existing between Korea and Japan. From the examination here, what real stakes the two countries have with respect to the Dokdo/Takeshima Islands are made fairly clear. The territorial dispute as such over the Dokdo/Takeshima Islands has an unfortunate impact on the law of the sea issues. Nonetheless, both have tactically overcome this hurdle by firmly utilizing practical and cooperative sense. On the other hand, looking at the point from a different viewpoint, we can further derive important suggestions from the fact that without touching upon the issue of sovereignty over the Dokdo/Takeshima Islands, the two countries succeeded in cooperation by realizing the joint development of resources and the joint MSR. These facts present a critical question. Namely, what are the real gains that each country wants to acquire by claiming sovereignty over the Islands, an extremely small area of land at sea.

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The acknowledgment of the following facts by the two countries as sovereign states is crucial in deciding their positions concerning the sovereignty over the Islands: that they could manage their disputes from the vantage point of the law of the sea and that their keen interests in fishery resources can and will be secured by their own means of a joint and cooperative scheme of resource exploitation. This cannot be overly emphasized in any way. Then, what interests do the two countries have by persistently insisting on sovereignty over the Islands? The truism that sovereign states eagerly want to enlarge their own territories cannot be denied. However, can adhering to such a truism lead sovereign states to wise, practical, and productive decisions? Regarding the resources on the continental shelf, substantial commercial production is not expected despite the establishment of the joint development scheme in the Southern Part Agreement. While the Northern Part Agreement delimits the seabeds beneath the sea areas close to the Dokdo/Takeshima Islands, there is merely an inconclusive prediction of the existence of significant resources. Access to fishery resources is probably the weightiest issue due to the existence of rich resources in the so-called “Yamato Tai ” or “Yamato Deposit” nearby the Dokdo/Takeshima Islands. Despite this difficult situation, the provisional zones set by the 1998 Agreement provides the two countries with a prudent way of furthering cooperation in the conservation and management of the fishery resources so that both countries can increase and even maximize the benefit from the development of these resources. In addition, appropriate and cool-headed calculation inevitably led them to, for instance: reconsideration of the range of the provisional zones; substantiation of the conservation and management standards and measures for that purpose; and fair distribution of the benefits to be acquired from the exploitation of the resources. Thus, both countries have much room to maximize their interests in fishery resources within the cooperative scheme without unnecessarily aggravating the dispute over the sovereignty of the Dokdo/Takeshima Islands. For that purpose, the role of the Joint Fishery Committee should be reconsidered. In addition to its current authority to deliver recommendations, one way to further cooperate in the conservation and management of fishery resources is to confer upon the Committee more power in respect to not only the provisional zones but also to the EEZ of the two countries. Another remaining issue is the distribution of particular enforcement jurisdiction over fishing boats conducting fishing activities in the provisional zones. Under the existing agreement, Korea and Japan takes measures solely against fishing boats that fly its own flag. A more effective way should be devised to tighten fishery regulations, set common substantive regulative rules, and exercise enforcement. With respect to MSR, the joint MSR project could satisfy both countries’ desire for conducting MSR to a significant degree without having to delimit

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the EEZ. Japan has consistently proposed a permanent scheme for a joint MSR not on an ad hoc basis but a prior notification system which should be preferable and hopefully eventually agreed to by Korea. The People’s Republic of China and Japan have already proceeded to that stage. So far, it has been shown that the issues of development of resources and MSR can be managed without touching upon the issue of the sovereignty over the Dokdo/Takeshima Islands. As far as these matters are concerned, a claim of sovereignty over the Islands is not supported by the keen interests of the two countries. Then, the crucial question persistently arises: what are the real interests for each country in claiming sovereignty over the Islands? At least, both countries now have time and opportunities to seriously face and think thoroughly through this fundamental question. The analysis of the Dokdo/ Takeshima Islands dispute from the perspective of the law of the sea can confine the conflict to its core points and provide the two countries with an opportunity to actually and practically consider their national interests in claiming sovereignty over the Islands.

Chapter VI Dokdo, Colonialism, and International Law: Lessons from the Decision of the ICJ in the Land and Maritime Dispute between Cameroon and Nigeria Dakas C.J. Dakas* I. Introduction [The approach of the International Court of Justice in the Bakassi case] is clearly rooted in a Eurocentric conception of international law . . .1 . . . [E]xposing the ignominious role of international law in the colonial project is an imperative exercise that brings with it the liberating realization that to speak of colonialism and its crippling effect in the past tense is to wallow in idle fantasy; thus underscoring the imperative of vigilance.2

The October 2002 decision of the International Court of Justice in the contentious case between Cameroon and Nigeria (Equatorial Guinea intervening)3 is, on the face of it, a decision in respect of an inter-state territorial dispute. This chapter argues, however, that in the circumstances of the case, colonialism was on trial. Properly analyzed, at the heart of the case is British colonial responsibility to the people of Bakassi. As rightly noted: Without question . . . the . . . judgment is a travesty and a cunning if brutal reenactment of colonial injustices. It is a sad reminder that the case arose in the first instance as a direct consequence of the buccaneer activities of the imperial powers of Europe who, having earlier traded in African virile peoples, sought at

* Associate Professor of Law, Department of International Law & Jurisprudence, Faculty of Law, University of Jos. 1 The Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nig.: Eq. Guinea Intervening) 2002 I.C.J. 492 para. 5 (Oct. 10) (Al-Khasawneh, J., separate opinion), available at http://www.icj-cij.org/docket/files/94/7467.pdf [hereinafter Bakassi Case]. 2 Dakas C.J. Dakas, The Role of International Law in the Colonization of Africa: A Review in Light of Recent Calls for Re-Colonization, 7 Afr. Y.B. Int’l L. 87–88 (1999). 3 Bakassi Case, supra note 1.

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Regrettably, the International Court of Justice evaded this central issue and chose, instead, to immerse itself in a spurious analysis whose end result was the consecration of colonialism. This chapter situates the discourse within the specific context of the Dokdo issue, given its colonial antecedents, and, inter alia, underscores the imperative of critical legal scholarship that interrogates the colonial enterprise, with a view to purging international law of its colonial vestiges.

II. The Colonial Dimension of the Dokdo Issue “Dokdo” is the Korean name for a territory that is the subject of competing claims between the Republic of Korea and Japan. The Japanese name is “Takeshima,” while various Western explorers and colonial writers christen it “Liancourt Rocks.”5 The discourse that follows justifies, in my respectful view, my preference for “Dokdo.” The territory in question has been described as “two rocky islets and 32 even smaller outcroppings that have a combined land area of 0.18 square kilometers in the East Sea/Sea of Japan.”6 In spite of its small size, Dokdo evokes sentiments and emotions, predicated largely on nationalistic fervor, that eclipse its physical size. My interest, however, is borne out of the fact that the Dokdo issue is rooted in colonialism and, therefore, cannot be addressed without coming to terms with the reality of Japanese colonial and imperial exploits in the Republic of Korea. The history of Japanese exploits in Korea – and Asia in general – is a chequered one. However, our point of departure is the fact that in 1905, Japan, proceeding from the premise that Dokdo was terra nullius, claimed sovereignty over it. In 1910, Japan, in further pursuit of its colonial and imperial exploits in Asia, annexed Korea as part of its territory. It is instructive that in the Cairo Declaration of November 27, 1943, Great Britain, the United States and China, decried “the aggression of Japan,” including “the enslavement of the people of Korea,” resolved to expel Japan from all the territories “which she

4 5

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Editorial of Tuesday, The Guardian (Nigeria), Oct. 22, 2002 at 22. Northeast Asian History Foundation, Dokdo: Korean Territory since the 6th Century, Ne Asian Hist. Found., 2006, at 11–12. Jon M. Van Dyke, Legal Issues Related to Sovereignty over Dokdo and its Maritime Boundary, 38 Ocean Dev. & Int’l L. 157 (2007).

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ha[d] taken by violence and greed” and expressed their determination to ensure that “Korea . . . become[s] free and independent.”7 The end of World War II culminated, in part, in the defeat of Japan and the liberation of Korea.8 However, in spite of the fact that Korea has been in effective possession and control of Dokdo for over half a century now, Japan still contests Korea’s sovereignty over the territory, although Korea’s position is that the issue of its sovereignty over the territory is beyond dispute. In a painstaking and scholarly analysis of the question of sovereignty over Dokdo, Professor Van Dyke concludes that Korea’s claim is “substantially stronger than that of Japan.”9 Van Dyke predicates his conclusion on, inter alia, the historical evidence of Korea’s exercise of sovereignty during previous centuries and the recognition of Korea’s claim by Japanese cartographers and government officials during the 18th and 19th centuries; the implausibility of the Japanese assertion in 1905 that the islets were “terra nullius, the link between the 1905 incorporation of the islets and Japan’s expansionist military activities leading to the complete subjugation of Korea, and the inability of Korea to protest effectively during that time because of Japanese military domination over the Korean government; the principle of contiguity, given the proximity of the islets to Korea’s Ulleungdo than to Japan’s Oki Islands; and Korea’s actual physical control of the islets during the past half century.10 Van Dyke’s analysis and conclusion on the question of sovereignty over Dokdo are very persuasive. However, the major focus in this chapter is not the determination of which state, as between Japan and the Republic of Korea, has sovereignty over the territory. Instead, the primary focus is the imperative of constructive and productive interrogation of the interface of international law and colonialism and its implications for Dokdo. Furthermore, it is imperative to underscore the fact that Dokdo generates a unique and distinct challenge. While most territorial disputes that are rooted in colonialism, such as the Bakassi case, involve former colonies (in the Bakassi case, Cameroon and Nigeria, being former colonies of France and Great Britain, respectively), Dokdo involves a former colonizer (Japan) and a former colony (Republic of Korea). In this circumstance, this chapter addresses critical 7

8

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The Cairo Declaration, U.K.-U.S.-China, Nov. 27, 1943 (regarding Japan) available at http:// www.ndl.go.jp/constitution/e/etc/c03.html. For an insightful discussion of the manner in which the victorious Allied powers engendered the framework for the termination of the state of war between them and Japan, with a view to settling outstanding questions, such as the status of the minor islands, including Dokdo, that were under the sovereignty of Japan at the end of the war, see Seokwoo Lee, The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia, 11 Pac. Rim L. & Pol’y J. 63 (2002). Van Dyke, supra note 6, at 195. Id. at 195–196.

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questions, such as the following: Is Japan at liberty to invoke international law norms that predominated in the colonial era and in respect of which the Republic of Korea could not, on account of its colonial status, make any meaningful input in its formation or crystallization? Should intertemporal law be invoked in the resolution of a dispute where one or more of the parties to the dispute played no meaningful role in the development of the normative framework that is being called into play? Should intertemporal law be invoked where it would lead to an absurd and monstrous result? Should intertemporal law be invoked where the outcome would undermine a peremptory norm? Before delving into these issues, however, I shall explore the interface of international law and colonialism in the specific context of the African colonial dispensation and, thereby, set the stage for an appraisal of the colonial dimensions of the Bakassi case and its implications for Dokdo.

III. Prelude to Bakassi: The Interface of International Law and Colonialism in the Context of the African Colonial Dispensation In light of the fact that Africa’s colonial experience set the stage for the Bakassi case, it is apposite, at this juncture, to x-ray the interface of international law and colonialism in the specific context of the African colonial dispensation. Africa’s contact with the West, the motivation behind colonialism, and the rapacious plunder thereby occasioned on the continent, are the subject of extensive research by historians, political scientists, geographers, sociologists, etc.11 It is axiomatic that African history has been so distorted, especially by Eurocentric scholars, that for a long time, the conventional “wisdom” was that Africa had no history prior to its contact with the West. As Machel puts it: “[Africa was] excluded from history, forgotten in geography [and] only existed with reference to a colonial point of reference.”12 Thus, Hegel, a German philosopher, went so far as to proclaim that Africa is “no historical part of the world; it has

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See, e.g., Basil Davidson, The Black Man’s Burden: Africa and the Curse of the Nation-State (1992); Basil Davidson, Africa in History (1991); Daniel Offiong, Imperialism and Dependency (1980); Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (1996); Walter Rodney, How Europe Underdeveloped Africa (1981); UNESCO General History of Africa: Africa Under Colonial Domination, 1880–1935, Vol. VII (Adu A. Boahen ed., 1985); and Crawford Young, The Heritage of Colonialism, in Africa in World Politics 19 (John W. Harbeson & Donald Rothchild eds., 1991). Samora Machel, quoted in Patrick Wilmot, Ideology and National Consciousness, 189 (1980).

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no movement or development to exhibit.”13 The reality is that “Africa has, for generations now, been viewed through a web of myth so pervasive and so glib that understanding it becomes a two-fold task: the task of clarifying the myth and the separate task of examining whatever reality has been hidden behind it . . . Only if the myth is stripped away can the reality of Africa emerge.”14 Indeed, the task of reconstructing Africa’s authentic history is so monumental that it continues to engage the attention of African and non-African scholars who have undertaken the historic mission of setting the records straight. While this task continues, numerous studies so far abound which counter the stereotypic labeling of pre-colonial Africa as “uncivilized,” “savage,” “barbaric,” etc. Walter Rodney’s How Europe Underdeveloped Africa15 and the works of a host of other scholars16 are replete with evidence – including the testimonies of some of the early European explorers17 to the effect that the popular portrayals 13

Georg Hegel, The Philosophy of History, quoted in Joseph E. Harris, Africans and Their History 9 (2nd rev. ed., 1998). Harris’ text addresses critical issues such as “A tradition of Myths and Stereotypes [about Africa]” (Chapter 1), “The Evolution of Early African Societies” (Chapter 2), “Early Kingdoms and City-States” (Chapter 3), “The Scramble and Partition” (Chapter 11), “African Diplomacy, Resistance and Rebellion” (Chapter 12), and “The European Colonizers: Policies and Practices” (Chapter 13). Unfortunately, as Harris observes, “[r]ace in general, and myths and stereotypes surrounding physical features and skin color in particular, have been so pervasive and basic in black-white relations and in accounts of those interactions that in spite of a stream of scientific evidence to the contrary, the concept of black inferiority continues to thrive in many minds.” Id. On the question of race in the United States, see, e.g., Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal (rev. ed., 1995). 14 Paul Bohannan, Africa and the Africans 1 (1964). Questioning the myths surrounding the history of Africa, Okoye asserts: Africa has a long and enduring history behind it, longer than any historian has described it. Africa has had its own rich sweep of events which European conquest and settlement have failed to reckon with. Yet, no civilization of the world can be divorced from the continent. The depth of its antiquity, the immensity of its treasure and the resilience of its people form a fascinating study which no single intellect can comprehend, no single volume describe. Mokwogo Okoye, African Responses 389 (1964). 15 Rodney, supra note 11. 16 See generally Basil Davidson, Black Mother: Africa – The Years of Trial (1970); W.N. Huggins & J.G. Jackson, An Introduction to African Civilizations (1973); Okoye, supra note 14; Africa in Classical Antiquity (L.A. Thompson & J Ferguson eds., 1969); The African Past Speaks (Joseph C. Miller ed., 1980); The People of Africa (H.M. Schieffelin ed., 1974). 17 For instance, Blyden is reported to have remarked that an exhibition by Africans opened his eyes to “capacities and susceptibilities altogether inconsistent with the theory that dooms such a people to a state of perpetual barbarism or of essential inferiority to the more favoured races.” E.W. Blyden, Report on the Falaba Expedition 1872, quoted in Schieffelin supra note 16, at XI. After witnessing the wonders of Egypt, Volney, a French Oriental traveler, exclaimed, “To think that this black race, today enslaved by us and the object of our disdain, is the same to which we owe our arts and sciences and even our speech,” quoted in Okoye, supra note 14, at 92.

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of Africa in Europe were clearly misconceived, and that, far from enabling or facilitating the development of Africa, Europe’s contact with Africa – since the days of the ignominious slave trade – ushered in the underdevelopment of the continent. For the purpose of this chapter, we shall examine the striking manner in which “international” law, particularly in the 19th century,18 justified the colonial project. What is even more spectacular is the stupendous manner in which international legal scholars, with few exceptions, availed the colonial project of their intellectual armory. Thus, Jenks undertakes a survey of the views of “the leading writers” of the 19th century and the early years of the 20th century – Kent, Wheaton, Phillimore, Hall, Westlake, Oppenheim, Anzilloti, Fauchille, Holtzendorf, Nys, Bello, Rivier and F. de Martens – on international law and western civilization, and describes these publicists as “so outstanding a company from nine different nations that no one can dismiss their views as unrepresentative or unimportant” and submits that “their views differ only in degrees of emphasis.”19 Wheaton, for instance, remarks, “Is there a uniform law of nations? There certainly is not the same one for all the nations and states of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilised and Christian people of Europe or to those of European origin.”20 The views of Westlake who, at the material time, was, inter alia, the Whewell Professor of International Law at the University of Cambridge and reputed to be “a jurist of world-wide reputation,”21 merit further scrutiny. Accordingly, the ensuing discourse essentially examines and critiques Westlake’s views, which with varying degrees of emphasis, are largely representative of the perspectives of his Western contemporaries on the questions of sovereignty and civilization 18

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The 19th century is, from a legal perspective, remarkable in several respects: the decline of natural law and the concomitant triumph of legal positivism, as well as the construction and consolidation of sovereignty and statehood as the exclusive preserve of the “civilized.” Additionally, and as a corollary of the foregoing, the 19th century has the dubious distinction of notoriety for its colonial legacy. As the specter of re-colonization haunts Africa, it would be tantamount to laboring under a delusion to ignore the question as to whether, notwithstanding the profound transformation that international law has undergone over the years, the ghost of the 19th century still hovers over us. On the legacy of the 19th century, see generally, Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int’l L. J. 1 (1999) and David Kennedy, International Law and the Nineteenth Century: History of an Illusion, 17 Quinnipiac. L. Rev. 99 (1997). C. Wilfred Jenks, The Common Law of Mankind 69–74 (1958). Henry Wheaton, Elements of International Law 16 (William Beach Lawrence ed., 6th ed., 1855). Furthermore, Oppenheim notes that “only such territory can be the object of occupation as belongs to no State, whether it is entirely uninhabited, for instance an island, or inhabited by natives whose community is not to be considered a State.” L. Oppenheim, International Law: A Treatise, Vol. I, 555 (H. Lauterpacht ed., 8th ed. 1955). J. Fischer Williams, Memories of John Westlake 1, 7 (J. Fischer Williams ed., 1914).

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and invariably, the colonial question. Indeed Shaw singles out Westlake as the “foremost among . . . theorists” who took the view that “the organized tribes of peoples of non-European lands had no sovereign rights over their territories and thus no sovereign title by means of effective occupation.” Accordingly, the inhabitants were “factually and not legally in occupation of the territory, which could be treated as terra nullius and acquired by any State in accordance with the requirements of international law.” Shaw further points out that the views of such theorists “appeared to dominate throughout the nineteenth century when Africa was being divided amongst the competing European powers.”22 1. Pre-Colonial Africa as “Uncivilized” and Devoid of Sovereignty John Westlake, proceeding from the premise that reflection on the principles of international law “helps to determine the action of [one’s] country by swelling the volume of its opinion,”23 sets out a pyramidal legal edifice in furtherance of the colonial project. This he does principally through his conception of the nature and acquisition of territorial sovereignty. Chapter IX of his text is strikingly captioned “Territorial Sovereignty, Especially with Relation to Uncivilised Regions.” In a sub-chapter titled “The Title to Territorial Sovereignty,” Westlake ducks the question as to how “the old civilized world” acquired the title to territorial sovereignty, as according to him, the issue is not “capable of discussion apart from the several dealings, as cession or conquest, which transfer it.”24 However, he unhesitatingly delves into a consideration of the status of “uncivilised natives” in international law. Westlake submits that “[w]hen people of the European race come into contact with American or African tribes, the prime necessity is a government.”25 Such a government has to be capable of protecting the former in a manner that enables them to “carry on the complex life to which they have been accustomed in their homes” and “protect the natives in the enjoyment of a security and well-being at least not less than they enjoyed before the arrival of the strangers.”26 Questioning whether “the natives [could] furnish such a government” or look up to the Europeans, he submits that “in the answer to that question lies, for international law, the difference between civilisation and the want of it.”27 In his view, most of the populations with whom Europeans came into contact in America and Africa could not furnish the kind of government in question. Accordingly, 22 23 24 25 26 27

Malcolm Shaw, Title to Territory in Africa: International Legal Issues 32 (1986). John Westlake, Chapters on the Principles of International Law V (1894). Id. at 134. Id. Id. Id.

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international law “has to treat such natives as uncivilised” and “regulates, for the mutual benefit of civilised states, the claims which they make to sovereignty over the region, and leaves the treatment of the natives to the conscience of the state to which sovereignty is awarded.”28 In effect, the regions inhabited by such “uncivilised natives” were not, on their own, sovereign. In this circumstance, he challenges the competence of the “uncivilised natives” to effect a transfer of territory by cession: “What is the authority – chief, elders, body of fighting men – if there is one . . . empowered to make the cession?”29 Westlake, by taking this position, boxes himself into a corner. If, as he claims, “uncivilised natives” were incapable of effecting a transfer of territory through cession, what is the legal status of treaties that, to his knowledge, were entered into between various African chiefs and respective European Powers? 2. The Legal Status of Treaties with “Uncivilized Natives/Tribes” In a spirited effort to wriggle out of the dilemma occasioned by his condescending treatment of the status of the “uncivilised natives” and its implications for their treaty-making competence, in effect, he patronizes them. “[N]o men are so savage as to be incapable of coming to some understanding with other men, and wherever contact has been established between men, some understanding, however incomplete it may be, is a better basis for their mutual relations than force.” On the specific status of treaties between European Powers and “uncivilised natives,” he contends that the latter “take no rights under international law,” with the result that “no document in which such natives are made to cede the sovereignty over any territory can be exhibited as an international title.” However, “[t]o whatever point natives may have advanced,” cession by them in accordance with their customs “may confer a moral title,” and even then only with reference to “property or power as they understand while they cede it.” Therefore, “no form of cession by them can confer any title to what they do not understand.” Yet, “while the sovereignty of a European state over an uncivilised region must find its justification, as it easily will, not in treaties with natives but in the manner of the case and compliance with conditions recognised by the civilised world,” Westlake further submits, “it is possible that a right of property may be derived from treaties with natives, and this even before any European sovereignty has begun to exist over the spot.”30 This statement is, at best, ambiguous. The distinction that Westlake makes between sovereignty and “a right of property” may well be tenable, but that does not explain how the “natives,” whose sovereignty he disputes, acquired the

28 29 30

Id. Id. at 139–143. Id. at 144–145.

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competence to alienate property through treaties with European states.31 Additionally, the assertion that “no form of cession by [uncivilised natives] can confer any title to what they do not understand,” on the face of it, gives the impression that Westlake’s position is informed by concern for the interests of the “uncivilised natives.” However, this must be appreciated within the broader context of Westlake’s mission and, in particular, his assertion denying the rights of the “uncivilised natives.” This is further borne out by the manner in which he selects and contrasts two treaties with “uncivilised” chiefs.32 The first, exemplifying what a “treaty . . . with natives ought not to be,” is that concluded between the British South Africa Company and King Umtasa in 1890. Westlake decries the fact that the treaty, to use his own words, “dignifies” the latter as “king or chief of Manika;” preferring, instead, to describe him as a “savage” and “such a drunkard as to be subject to delirium tremens.” The treaty grants to the company the “sole absolute and entire perpetual right and power” to do the acts specified therein “over the whole or any portion of the territory” of the king. The company, in turn, agrees “under the King’s supervision and authority” to perform certain functions, including assisting “in the establishment and propagation of the Christian religion and the education and civilisation of the native subjects of the King” as well as “the extension and equipment of telegraphs and of regular services of postal and transport communications.”33 Westlake finds fault with this treaty not because, as he claims, the king in question was a drunkard and could not possibly comprehend what he was doing – leaving one to wonder why this issue finds expression in the text in the first place. Instead, Westlake contends that, taken alone, the stipulations in the treaty might not have been beyond the understanding of the king, “but when they were mixed with a farrago which must have been mere jargon to him, the whole must be dismissed as something which could not have received his intelligent consent.” It is apparently of no concern to Westlake that the treaty speaks of the “territory” of the king and his “supervision and authority,” thus suggesting that the company was conscious of the existence of a government in the territory in question, one capable of providing the “supervision and authority” that the treaty envisages.34

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Cf. Mark F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion 21 (1926): “[I]t is difficult to see why, if the natives are to be regarded as capable of possessing and transferring property, they should not also be considered competent to hold and transfer the sovereignty which they actually exercise.” Id. at 151–154. Id. Id.

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In contrast, Westlake “pleasant[ly]” offers as “an example to be followed,” an 1889 treaty between “Her Majesty’s acting Consul for Nyassa” and, according to him, “the chiefs of a nation [Makololo] which for intelligence and character ranks very high among those which must still be called uncivilized.” The treaty, inter alia, makes a distinction, which is important, between the “subjects of the queen of England” and “our subjects” (the subjects of the chiefs), grants the former certain rights but exercisable “according to the laws in force” in the territory of the chiefs, provides for the payment of “duties or customs” to the chiefs, and sets out a framework for dispute resolution. Additionally, there is a stipulation to the effect that the chiefs “will at no time whatever cede any of [their] territory to any other power, or enter into any agreement treaty or arrangement with any foreign government except through and with the consent of the government of Her Majesty the queen of England, &c.”35 This treaty, according to Westlake, “contains nothing beyond the comprehension of the Makololo chiefs.” However, he maintains that “there is no cession of territorial integrity by them.” Be that as it may, there is no doubt that the treaty contains an undertaking by the chiefs not to cede any part of their territory to any “other power.” Indeed, it is revealing that Westlake glosses over the obvious fact that the treaty reckons with the fact that, but for its provisions, the Makololo chiefs would have been competent to effect a cession of their territory to a power of their choice. If, contrary to the treaty provisions, the chiefs had ceded their territory or part of it to another power, one wonders whether the British would not have invoked the terms of the treaty and alleged that the chiefs were in breach of their treaty obligations. If, but for the terms of the treaty, the chiefs had ceded their territory or part of it to a power of their choice, one also wonders whether the British would have challenged the title of that other power on the ground of an alleged absence of sovereignty on the part of the chiefs.36 Furthermore, it is poignant that the treaty evidences the existence of a government in Makololo, with laws to which the British, by the terms of the treaty, were subject. My point is not that the colonizing powers acquired valid title over African lands through cession on the strength of the various treaties that were entered 35 36

Id. If they did, that would have put their own title – to the extent that it was claimed to be predicated on the treaty – in jeopardy. Accordingly, it would not have been in the interest of the British, even if they would have ordinarily preferred otherwise, to challenge the sovereignty of the African states. It is against the backdrop of this reality that Shaw’s example of how Britain deferred to Germany on the strength of an 1883 treaty between the latter and a “local chief” in respect of the “Cameroons territory,” and his assertion that “[h]ad the area been regarded as terra nullius, the mere signing of a document would not have been sufficient and there would therefore have been scope for Britain to recoup the situation,” should be appreciated. Shaw, supra note 23, at 39.

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into with African chiefs. Instead, the determination of the validity or otherwise of such treaties depends on several factors. For instance, given the languages in which the treaties were couched, did the African chiefs really appreciate their import? Obviously this has nothing to do with illiteracy. It is one thing to be literate, while it is quite another thing to comprehend the medium through which treaty stipulations are expressed. In such situations, the role of interpreters could be valuable. However, there has to be evidence to the effect that such interpreters are indeed knowledgeable and faithfully carry out their task. Additionally, the existence or otherwise of fraud, coercion, corruption, and other vitiating or invalidating elements are relevant considerations. As a matter of fact, some of the terms of the treaties make a caricature of themselves by their very absurdity and call into question any claims to the effect that the African chiefs were willing parties. The 1861 treaty between King Docemo and the British concerning the Port and Island of Lagos is instructive: I, Docemo, do, with the consent and advice of my council, give, transfer, and by these presents grant and confirm unto the Queen of Great Britain, her heirs and successors forever . . . full and absolute dominion and sovereignty of the said port, island, and premises . . . freely, fully, entirely, and absolutely.37

Beyond the question of free choice and informed consent, it is of tremendous significance, given Westlake’s claims, that the treaty speaks of “sovereignty,” which King Docemo, in the exercise thereof, “grant[s]” to the British. In this sense, one finds a common analogy in commercial law: Nemo dat quod non habet. Nonetheless, it is questionable whether the British, in spite of the explicit reference to sovereignty in the treaty, actually recognized the sovereignty of the African states. To the extent that they did, it was merely a self-serving – indeed disingenuous – strategy to ward off rival European claimants. If they actually did, one would have expected them to accord the African states a treatment commensurate with this recognition in the process of treaty-making and other relations. In effect, such treaties had less to do with legal relations between the European powers and the African states than among the European powers themselves. Put another way, the European powers, spurred by their imperial ambitions, were constrained to accord the African states some semblance of sovereignty if so doing meant that – as among themselves – they could anchor their titles to territories in Africa on the so-called treaties of cession with African states. This is undoubtedly a manifest exhibition of the contradictions and foxy character of the colonial project. In any event, even if the European powers intended – and this is questionable – that the African states could in fact invoke the treaties against them, the 37

U.O. Umozurike, International Law and Colonialism in Africa 40 (1979).

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chances were slim because the treaty provisions were often heavily weighted against the latter. Besides, where would the African states have sought redress against the European powers? An international judicial or arbitral body was obviously out of the question. Before domestic African dispute resolution institutions? Apart from the question of sovereign immunity, would the European powers have submitted themselves to the jurisdiction of such institutions? Indeed, in the few instances where the treaties made provision for dispute resolution, the European powers were not even ready to allow differences between their “subjects” and the African states to be adjudicated upon by African dispute resolution institutions. Neither was created institutions with the joint input of the European powers and the African states. Instead, the treaty between the British and the Makololo chiefs, for instance, provided that should “any difference” arise between “British subjects” and the chiefs, as to the duties or customs payable to the latter, or as to any other matter, “the dispute shall be referred to a duly authorised representative of Her Majesty, whose decision in the matter shall be binding and final.”38 Furthermore, the reality is that in concluding or, better put, purporting to conclude treaties with African States, the primary concern of the colonizing powers was not compliance with the rules of the game. This is borne out, for instance, by the revelations of a former British infantry commander, A.B. Thruston, who, recounting his personal experience, aptly describes the process of treaty-making with Africans as “an amiable farce” and a “little comedy.”39

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Westlake, supra note 24, at 153. In his own words, quoted, on account of its significance, in extenso: I had been instructed . . . to make a treaty with Kivalli by which he should place himself under British protection; in fact, I had a bundle of printed treaties which I was to make as many people sign as possible. This signing is an amiable farce, . . . the equivalent of an occupation. The modus operandi is somewhat as follows: A ragged untidy European, who in any civilised country would be in danger of being taken up by the police as a vagrant, lands at a native village . . . [T]he chief comes and receives his presents, the so-called interpreter pretends to explain the treaty to the chief. The chief does not understand a word of it but he looks pleased as he receives another present of beads; a mark is made on a printed treaty by the chief and another by the interpreter, the vagrant, who professes to be the representative of a great empire, signs his name. The chief takes the paper but with some hesitation, as he regards the whole performance as a new and therefore dangerous piece of witchcraft. The boat sails away and the new ally and protégé of England or France immediately throws the treaty into the fire. Kavalli was an important personage and it was desirable that he should perform this little comedy with us before he should do so with the Belgians. A.B. Thruston, African Incidents: Personal Experiences in Egypt and Unyoro 170–71 (1900), quoted in Yilma Makonnen, International Law and the New States of Africa: A Study of the International Legal Problems of State Succession in the Newly Independent States of Eastern Africa 14–15 (1983) (emphasis added). 39

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It is clear, from the discourse thus far, that Westlake’s conception of the nature and acquisition of territories in the context of colonialism is fraught with contradictions. His spirited attempts to get out of the quagmire only throws him from the frying pan into the fire. In the course of one such attempt, he resorts to “constructing the Makololo chiefs and divining their consciousness” in a vain effort to “give his scheme some semblance of coherence,”40 without articulating a credible basis for such recourse. Eventually, Westlake exhibits his true colors. “The inflow of the white race cannot be stopped where there is land to cultivate, ore to be mined, commerce to be developed, sport to enjoy, curiosity to be satisfied.”41 3. Terra Nullius and the Acquisition of Territory by Europeans in Africa The denial of the sovereignty of pre-colonial African states and their competence to effect transfers by cession is far from academic. The inescapable conclusion – and this suited the colonial project – is that even where lands in Africa were factually inhabited by Africans, such lands were, from the point of view of law, treated as terra nullius. It was immaterial, insofar as colonialism was concerned, that Africans inhabited such lands for centuries before the Europeans set foot on African soil. Accordingly, they could be treated as having been newly discovered and liable to acquisition by occupation. Indeed, this is precisely the subtle import of Westlake’s statement to the effect that his examination of the “position of the uncivilised natives . . . clears the way for a discussion of the titles to territorial sovereignty in uncivilised regions which states belonging to the society of international law invoke against one another,”42 followed by a discourse on discovery and occupation as international titles.

40 41

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Anghie, supra note 18, at 48. Westlake, supra note 24, at 142–143. In view of these circumstances, Westlake submits that if a “fanatical admirer of savage life argued that the whites ought to be kept out, he would only be driven to the same conclusion by another route, for a government on the spot would be necessary to keep them out.” Interestingly, in a tribute to Westlake, Symonds has this to say. “He hated injustice and oppression from his very soul, and none who ever heard him speak against them could forget the burning and impassioned words in which he arraigned the tyrant and pleaded for the victims of tyranny.” Arthur G. Symonds, The Balkan Committee, in Memories of John Westlake, supra note 22, at 107, 115. Apparently, Westlake’s crusade, as so described, did not encompass the plight of the “uncivilized.” Westlake, supra note 24, at 155. Hyde further points out that by deeming the “uncivilized or extremely backward” inhabitants of a territory “to be incapable of possessing a right to sovereignty,” a conqueror could “ignore their title and proceed to occupy [their] land as though it were vacant.” In such cases, he further notes, “conquest refers merely to the military or physical effort by means of which occupation becomes possible.” Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. I, at 357 (2d rev. ed. 1947). Reliance on conquest, in the sense in which it is traditionally understood,

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This point is further made explicit by Thomas J. Lawrence. Lawrence submits, evidently in agreement with John Austin,43 that a sovereign state must have two characteristics: a government that receives habitual obedience from the bulk of the people, and does not render habitual obedience to any earthly superior. For such a state to become a subject of international law, however, it must attain “a certain, or rather an uncertain, amount of civilization” and possess a “fixed territory.” Accordingly, a territory is terra nullius if it does not meet these criteria and is, therefore, an object (and not subject) of international law, without standing in the exclusive club of the “family of nations.” Lawrence cites, as an example of the affected populations, a “wandering tribe without a fixed territory” which might “obey implicitly a chief who took no commands from other rulers,” yet “the necessary degree of civilization would be lacking.” Additionally, “even if we could suppose a nomadic tribe to have attained the requisite degree of civilization, its lack of territorial organization would be amply sufficient to exclude it from the pale of international law.”44 It suffices to point out, at this juncture, that this position is at variance with the Advisory Opinion of the International Court of Justice in the Western Sahara Case.45 The Court points out that “Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them.” Determining that Western Sahara was not terra nullius, the Court observes that a contrary determination “would be possible only if it were established that [at the time of its colonization by Spain] the territory belonged to no-one in the sense that it was then open to acquisition through the legal process of ‘occupation.’” In further elaboration of his point, however, Lawrence contends that occupation “applies only to such territories as are no part of the possessions of any civilized state.” Accordingly, “[i]t is not necessary,” he submits, “that [such territories] should be uninhabited” because “[t]racts roamed over by savage tribes have been again and again appropriated, and even the attainment by the original inhabitants of some slight degree of civilization and political coherence has not sufficed to bar the acquisition of their territory by occupancy.” Therefore,

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would have entailed the establishment by the European powers – at least in their relations with one another – of unprovoked aggression which is a key ingredient of conquest as a mode of territorial acquisition. Thus, the invocation of terra nullius had the dubious advantage of dispensing with this requirement. Besides, resort to war against African states would have invariably pitched rival European powers against one another. John Austin, The Province of Jurisprudence Determined 101 (David Campbell & Philip Thomas eds., 1998). The first edition of the book appeared in 1832. Thomas J. Lawrence, The Principles of International Law 50–51 (Percy H. Winfield ed., 7th ed. Macmillan 1923) (1895). Western Sahara, Advisory Opinion, 1975 I.C.J. at 12, 39.

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he concludes that “international morality,” and not international law, demands that the “natives” be treated with consideration.46 It is striking that while Lawrence has no hesitation in treating the “uncivilised regions” as objects of international law, he is willing to treat chartered companies – such as the British South Africa Company – which, as he points out, “ha[d] been called into existence by some of the colonizing powers . . . to open up enormous territories when first brought within the sphere of their influence,” as “international persons . . . though of a very imperfect and subordinate kind.” He views such companies as “sovereign in relation to the barbarous or semi-barbarous inhabitants of the districts in which they bear sway,” even though they are not so treated by their own states. To reach the conclusion that the companies in question are sovereign in relation to the “barbarous or semi-barbarous,” he relies, without creditably indicating how he deciphers the workings of the inner minds of such people, on their perceptions of the authority of the companies. Lawrence concludes that “[t]he subjects of international law are sovereign states and those other political bodies which, though lacking many of the attributes of sovereign states, possess some to such an extent as to make them real, but imperfect, international persons.” Such “other political bodies” or “part-sovereign states” he lists as “client states,” “confederations, together with the member-states that compose them,” and “civilized belligerent communities whose belligerency, but not whose independence, has been recognized,” as well as “chartered companies” to whom vast governmental powers had been delegated.47 Accordingly, entities or districts inhabited by “the barbarous or semi-barbarous” could not even be elevated to the status of “real, but imperfect, international persons.” 4. The Berlin Conference of 1884–85 and the Question of the Sovereignty of PreColonial African States . . . [T]he Berlin conference, despite its significance for the subsequent history of Africa, was essentially a European affair: there was no African representation and African concerns were, if they mattered at all, completely marginal to the basic economic, strategic and political interests of the negotiating European powers.48

46 47 48

Lawrence, supra note 45, at 148. Id. at 66, 68–69. Anthony I. Asiwaju, The Conceptual Framework, in Partitioned Africans: Ethnic Relations across Africa’s International Boundaries, 1884–1984, at 1 (Anthony I. Asiwaju ed., 1985).

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The scramble for Africa and the intense rivalry49 thereby occasioned, particularly among the European powers, led to the convening of the Berlin Conference of 1884–85. If anyone was in doubt as to whether or not the European powers really reckoned with the sovereignty of African states – as a reality in its own right and not for their selfish interests – the Berlin Conference put the issue beyond dispute. The fact that African states were not represented at the conference is pregnant with meaning. If the European powers considered the African states at the material time as sovereign entities, why were they not represented at the conference,50 even in the face of the obvious fact that Africa was the focal point of the conference? How could a conference whose “chief purpose,” in the words of Beer,51 “was to establish freedom of commerce” exclude Africans whose territory was the target? Is this not a reflection of the very nature of the colonial project and its perception of the status of entities and peoples earmarked for colonization? Why were Africans not consulted prior to the convening of the conference? If African states were appreciated as sovereign entities in their own right, why were they not invited to the conference, at the end of which any treaty concluded, with their input and consistent with their interests, would constitute the basic legal framework for the “freedom of commerce” envisaged? What this demonstrates is the fact that the denial of the sovereignty of African states by the European powers – as a reality independent of the vagaries of the colonial enterprise – and the treatment of their territory as terra nullius, was not simply academic theorizing which could be dismissed as the palaver of academics like Westlake who, in the comfort of their ivory towers, were oblivious of state practice and the underpinning intentions of the colonizing powers. To that extent, this bears testimony, in effect, to a coterminous – at least in 19th century Europe52 – of academic opinion and customary law, on account

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Young describes the nature of the scramble thus: “Africa, in the rhetorical metaphor of imperial jingoism, was a ripe melon awaiting carving in the late nineteenth century. Those who scrambled fastest won the largest slices and the right to consume at their leisure the sweet, succulent flesh. Stragglers snatched only small servings or tasteless portions; Italians, for example, found only desserts on their plates.” Young, supra note 33, at 19. The Final Act of the conference was signed by the plenipotentiaries of Austria-Hungary, Belgium, Denmark, France, Great Britain, Germany, Italy, Netherlands, Portugal, Russia, Spain, Sweden and Norway, Turkey, and United States. On the Berlin Conference, see generally S.E. Crowe, The Berlin West Africa Conference (1970). George Louis Beer, African Questions at the Paris Peace Conference 195 (Louis Herbert Gray ed., 1923). Cf. Western Sahara, 1975 I.C.J. at 85–87 (separate Opinion of Judge Ammoun). Judge Ammoun refers to the “penetrating views” of Bayona-Ba-Meya (for Zaire, now Democratic Republic of Congo) and Mohammed Bedjaoui (for Algeria), on the issue of terra nullius, which he commends as:

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of either the influence of the former on the latter or the former as a restatement of the latter; in any event a mutual congruence. Indeed, when Mr. Kasson, the plenipotentiary of the United States at the Berlin Conference, expressed the view that “[m]odern international law follows closely a line which leads to the recognition of the right of native tribes to dispose freely of themselves and of their hereditary territory” and that the acquisition of territories in Africa should be premised on “the voluntary consent of the natives whose country is taken possession of, in all cases where they had not provoked . . . aggression.”53 Herr Busch, German Under-Secretary of State for Foreign Affairs, who was presiding, responded that Mr. Kasson’s views “touched on delicate questions, upon which the conference hesitated to express an opinion.”54 Thus, Westlake proclaims that “it would be going much further, and to a length to which the conference declined to go, if we were to say that, except in the case of unprovoked aggression justifying conquest, an uncivilised population has rights which make its free consent necessary to the establishment over it of a government possessing international validity.”55 It is, therefore, no surprise that the conference proceedings and the Berlin Act are replete with references to occupation, a mode of acquisition of territory which is traditionally invoked in relation to terra nullius – a development suggestive of the confluence (at least in 19th century Europe) of academic opinion, customary law and treaty law. Whatever differences existed were, from a practical point of view, inconsequential. Clearly, Westlake and others similarly situated considered so-called treaties of cession between European powers and the “uncivilised” African states to be devoid of legal, as opposed to moral, significance. Accordingly, they preferred to anchor European titles to territories in Africa on modes of territorial acquisition other than cession (especially occupation). On the other hand, although the European powers accorded legal

[T]he reply which may be given to the participants in the Berlin Conference of 1885, who, during the fierce blaze of nineteenth-century colonialism, the success of which they sought to ensure by eliminating competition, regarded sub-Saharan Africa as an immense terra nullius available for the first occupier, whereas that continent had been inhabited since prehistoric times, and flourishing kingdoms had there been established – Ghana, Mali, Bornu – whose civilization survived until the colonial period, and only succumbed to the wounds inflicted by colonization and the slave trade . . . It was in the southern part of this continent and in Kenya that . . . ethnologists discovered the remains of the first hominoids. Id. at 86. Both Bayona-Ba-Meya and Bedjaoui, had challenged the use of terra nullius by the European powers to deprive Africans of their lands. In essence, they (Bedjaoui in particular) questioned the universal application of a law, purporting to be international, in which Africans had no input. 53 Westlake, supra note 24, at 138. 54 Id. at 138. 55 Id. at 139.

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significance to such treaties, this was primarily insofar as their relations with one another were in issue. One recalls, in this respect, Thruston’s account to the effect that it was desirable to perform a “little comedy” (sign a treaty) with Chief Kivalli “before he [Chief Kivalli] should do so with the Belgians.” As against the “uncivilised” African states, however, the reality is that, in practice, cession – predicated on such treaties – differed from occupation in name only. Again, one cannot but recall Thruston’s revelation that the treaty-making process was “an amiable farce . . . the equivalent of an occupation.” Lindley is, however, of the view that it is legitimate to say that although the method of acquiring territory in Africa was generally referred to as occupation at the Berlin Conference, the term was used with a broad meaning equivalent to acquisition or appropriation and was not confined to occupation in the strict sense of the word.56 Lindley’s view is informed by his attempt to show that the European powers recognized the sovereignty of African states and could only acquire territories in inhabited parts of Africa through means other than occupation. However, the fact that the European powers, at best, had mere pretensions to the sovereignty of African states – and disingenuously so – undermines his position.57 Lindley himself acknowledges this fact but, for him, it suffices that although “in many cases . . . treaties [with Africans] were obtained under compulsion . . . forced treaties are not unrecognized in international affairs.”58 56

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Lindley, supra note 32, at 34. Shaw shares this view. Shaw, supra note 23, at 34–35. In the Western Sahara Case, the Court observed that “[o]n occasion . . . the word ‘occupation’ was used in a non-technical sense denoting simply acquisition of sovereignty; but that did not signify that the acquisition of sovereignty through such agreements with authorities of the country was regarded as an ‘occupation’ of a ‘terra nullius’ in the proper sense of these terms. On the contrary, such agreements with local rulers, whether or not considered as an actual ‘cession’ of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terrae nullius.” There is no specific indication, however, that the Court had in mind the Berlin Conference and the Berlin Act. The Court further points out that it was not called upon to “pronounce upon the legal character or the legality of the titles which led to Spain becoming the administering Power of Western Sahara.” Supra note 46, at 39–40. Cf. Diane F. Orentlicher, Separation Anxiety: International Responses to Ethno-Separatist Claims, 23 Yale J. Int’l L. 1, 28–29 (1998). Orentlicher points out that European states acquired sovereignty over some colonial territories through occupation of what was characterized as terra nullius and over other areas through conquest. However, in most cases, transfers of sovereignty from African to European governments were formally effected by bilateral treaties, including treaties of cession and treaties establishing protectorates. Such treaties implicitly recognized the African rulers who signed them as possessing “the attributes of sovereignty,” while the treaty form “implied a legal equality” between the signatories. Orentlicher, however, makes it clear that in practice, during the 19th century, “African rulers often executed these treaties under considerable duress.” Additionally, the treaties were legally relevant less as a mode of transferring rights between the two parties than as a means by which European powers could, as against each other, demonstrate their title to a particular territory in Africa. Id. Lindley, supra note 32, at 44.

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It therefore follows that the participants at the Berlin Conference could not have come to the conclusion that Africa was to be partitioned as though it was, so to say, a booty of war, without a prior approval, even if tacit, of the view that Africans, who had long inhabited their lands, were “uncivilized” and devoid of sovereignty. Accordingly, as Anghie points out, “[c]onventional histories of the Conference make the powerful point that Africans were excluded from its deliberations. The story of the Conference may also be written, however, from another perspective that focuses on the complex way in which the identity of the African was an enduring problem that haunted the proceedings of the Conference.”59 5. Colonialism and the Plight of Africa in the Context of the Mandate System of the League of Nations The plight of Africa, and several other colonies, in the context of the mandate system of the League of Nations also demonstrates the manner in which colonialism was consecrated, ironically at a time when the principle of selfdetermination was, in the specific context of the inter-war era, at its zenith. The League of Nations mandate system, “evinced only muted concern for the wishes of [the mandate] territories’ inhabitants.”60 Additionally, as Orentlicher rightly observes: If the Versailles peace settlement introduced an unprecedented measure of international support for national self-determination, it also demarcated the outer limits of Western states’ commitment to that principle. Notably, the Treaty of Versailles perpetuated the long-standing dichotomy in international law between “advanced” states and those that had not yet achieved full sovereign status. While the peace settlement embodied the high-water mark of international support for the principle of national self-determination, the principal beneficiaries were European nations.61

The perpetuation of colonialism in Africa and, in particular, the condescending treatment of Africans at the Paris peace conference (as eventually embodied in 59

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Anghie, supra note 18, at 61. Further criticisms of the Berlin Conference in particular and the colonial project in general, are provided in Makau Wa Mutua, Putting Humpty Dumpty Back Together Again: The Dilemmas of the Post-Colonial African State, 21 Brook. J. Int’l L. 505 (1995); Makau Wa Mutua, Why Redraw the Map of Africa: A Legal and Moral Inquiry, 16 Mich. J. Int’l L. 1113 (1995). Franck, Fairness in International Law and Institutions 94 (1995). Orentlicher, supra note 58, at 39. Williams writes in the same vein, describing the mandate system as “an attempt to translate into reality the principles upon which European nations have always sought to defend the authority which they have exercised over communities in what, according to their own standard, is a less advanced and, therefore, it is assumed, less desirable stage of development.” J.F. Williams, Some Aspects of the Covenant of the League of Nations 201 (1934).

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the mandate system) is clearly discernable from the writings of Jan Smuts and Louis Beer, two key players at the peace conference. In a pamphlet titled “The League of Nations: A Practical Suggestion,”62 Smuts articulates his position on the (then) proposed League of Nations. Smuts refers to the “peoples left behind by the decomposition of Russia, Austria, and Turkey” and cautions that “[i]f there is going to be a scramble among the victors for this loot, . . . [t]he application of the spoils system at this solemn juncture in the history of the world, a repartition of Europe at a moment when Europe is bleeding at every pore as a result of partitions less than half a century old, would indeed be incorrigible madness.” Thus, “the fundamental principles which must guide the league in its territorial policy . . . have been summed up . . . in the general formula of ‘no annexations, and the self-determination of peoples.’” Accordingly, “if the peace comes, not in the settlement of universal human principles and the dawning of a better order, but in a return of the old policy of grab and greed and partitions . . . victory would then become bitterer than Dead Sea fruit. Let the peace be founded in human ideals, in principles of freedom and equality.” Smuts further contends, “and in institutions which will for the future guarantee those principles against wanton assault. Only such a peace would be statesmanlike and assure lasting victory.” Strikingly, Smuts’ sparkling proposal is restricted, as he points out, to “territories and peoples split off from Russia, Austria, and Turkey.” He observes that, “The case of Germany stands on a different footing which is clearly distinguishable in principle.” In the particular case of Alsace-Lorraine, he submits that its annexation to France “would be a case of disannexation . . . a case of restoring to France what was violently and wrongfully taken from her in 1871, against the protests not only of France, but of the population of Alsace-Lorraine speaking through their elected representatives.”63 However, as though African and Pacific peoples that were groaning under the yoke of German colonialism (and colonialism in general) did not rise up in opposition to their colonization, Smuts, in spite of his prior explicit reference to “universal human principles,” constructs a different, belittling scheme for them.64 Why? Smuts himself pro62

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Jan C. Smuts’ pamphlet, reprinted in, David Hunter Miller, The Drafting of the Covenant, Vol. II 23 (1928). Interestingly, Alsace-Lorraine was “restored to French sovereignty” in recognition of “the moral obligation to redress the wrong done by Germany in 1871 both to the rights of France and to the wishes of the population of Alsace and Lorraine, which were separated from their country in spite of the solemn protest of their representatives at the Assembly of Bordeaux.” The Treaty of Versailles arts. 51 & 52, Allied Powers-Ger., June 28, 1919, quoted in, Carnegie Endowment for International Peace, The Treaties of Peace, 1919–1923, Vol. I 3 (1924). Smuts submits that such peoples “might be consulted as to whether they want their German masters back, but the result would be so much a foregone conclusion that the consultation would be quite superfluous.” Instead, “[t]he disposal of these colonies should be decided on the

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vides an answer that speaks for itself. “[T]he German colonies in the Pacific and Africa are inhabited by barbarians, who not only cannot possibly govern themselves, but to whom it would be impracticable to apply any idea of political self-determination in the European sense.”65 Furthermore, Beer,66 Chief of the Colonial Division of the American Delegation to Negotiate Peace, and Alternate Member of the Commission on Mandates, appears to have been concerned about the plight of the Africans. A careful reflection, however, shows that his position cannot extricate itself from the overall framework of the colonial project. Beer describes German colonial policy in Africa as one of “open contempt” for the “aborigines,” as the “native was regarded as an inferior being, whose purpose was to serve the ends of the white man.” Consequently, he asserts that “[t]he preeminent consideration in colonial administration must be the welfare of the native,” as “[t]he outside world can in the long run gain no benefit from Africa unless its evolution is on a firm and sound economic basis.” Additionally, Beer submits that “[i]t is not only abominably selfish, but it is stupidly suicidal” to view Africa “merely as a huge plantation on which the negro toils as a helot for the advantage of Europe.” In spite of the explicit reference to “the welfare of the native,” it is evident that Beer is not denouncing colonialism per se but “colonial administration.” Indeed, Beer leaves no one in doubt about this fact and his perception of Africans. “The negro race,” Beer claims, “has hitherto shown no capacity for progressive development except under the tutelage of other peoples.” As though in amelioration of this harsh assertion, he submits that “the African’s existing stage of civilization is far below his real potentialities for progress.” However, having made the extraordinary claim that “the negro” is incapable of “progressive development except under the tutelage of other peoples,” he thrusts on the “colonizing powers” the “prime function” of developing and establishing favorable conditions for “the negro” to realize his “real potentialities for progress.” In Beer’s conception, it was, so to say, “the white man’s burden” to show Africans

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principles which President Wilson has laid down in the fifth of his celebrated fourteen points.” Smuts, supra note 63, at 28. President Wilson’s fifth Point advocates “[a] free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.” First, it must be borne in mind that Point 5 of President Wilson’s Fourteen Points was not directed specifically at the peoples of Africa and the Pacific, neither were such peoples excluded from its ambit. Second, if there was genuine commitment to the principle of self-determination, is it not logical that the so-called “equitable claims” should have been subordinated to “the interests of the populations concerned?” Id. at 26–28. Beer, supra note 52, at 179–180.

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the way forward. Needless to say, Beer’s position is obviously a variant of the so-called civilizing-mission rhetoric of colonialism. Interestingly, Lloyd George, British Prime Minister at the material time, in a speech on January 5, 1918, articulates the view that in regard to German colonies, “[t]he general principle of national self-determination is . . . as applicable in their cases as in those of occupied European territories.” Consequently, primary regard must be had to “the wishes and interests of the native inhabitants of such colonies” since “[t]he natives live in their various tribal organizations under chiefs and councils who are competent to consult and speak for their tribes and members and thus to represent their wishes and interests in regard to their disposal.” Curiously, however, he proposes that “[t]he governing consideration . . . in all these cases must be that the inhabitants should be placed under the control of an administration acceptable to themselves, one of whose main purposes will be to prevent their exploitation for the benefit of European capitalists or Governments.”67 Having regard to the discussion so far on the nature and role of selfdetermination in redrawing the map of Europe, is placing “the natives” under the control of an administration (whatever its attributes) consistent with “national self-determination . . . in . . . occupied European territories?” Thus, notwithstanding the numerous references to the need for the determination of “the wishes and interests of the native inhabitants” of the German colonies, independence was out of the question for the affected peoples, even though it has been acknowledged that “the natives were generally opposed to the return of their former masters” and “[i]n not a few instances they would have preferred to be left entirely to their own devices.”68 Accordingly, as Orentlicher puts it, “Whatever national self-determination meant at Versailles . . . it was clear that it did not mean to undo Europe’s subjugation of colonial peoples.”69

IV. The Interface of International Law and Colonialism in the Specific Context of the Decision of the ICJ in the Bakassi Case International law has, over the years, undergone a remarkable transformation. However, as the ensuing discourse amply demonstrates, it would be foolhardy to bask in the euphoria of such accomplishment and proclaim that international law has completely purged itself of its colonial vestiges.

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The relevant portion of Prime Minister George’s speech, quoted in, A History of the Peace Conference of Paris, Vol. II, 227 (H.W.V. Temperly ed., 1920–24). Id. at 227–228. Orentlicher, supra note 58, at 39.

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1. The Bakassi Case: A Brief Statement of the Issues The October 10 decision of the International Court of Justice is the culmination of an eight year legal tussle that began as far back as 1994 when Cameroon sought the Court’s intervention in a dispute between it and Nigeria over the Bakassi Peninsula (and later parts of the Lake Chad area). Cameroon predicated its sovereignty claims over the Bakassi Peninsula on, inter alia, a 1913 AngloGerman Agreement under which Great Britain purportedly ceded the Bakassi Peninsula to the Germans. It is noteworthy, in this respect, that: (1) On 10 September 1884, Great Britain and the Kings and Chiefs of Old Calabar concluded a Treaty of Protection (the “1884 Treaty”), under which Great Britain undertook to extend its protection to these Kings and Chiefs who, in turn, agreed, inter alia, to refrain from entering into any agreements or treaties with foreign nations or Powers without the prior approval of the British government. In specific terms, the 1884 Treaty provides as follows: Article 1. Her Majesty the Queen of Great Britain and Ireland, &c, in compliance with the request of the Kings, Chiefs, and people of Old Calabar, hereby undertakes to extend to them, and to the territory under their authority and jurisdiction, her gracious favour and protection. Article 2. The Kings and Chiefs of Old Calabar agree and promise to refrain from entering into any correspondence, Agreement, or Treaty with any foreign nation or Power, except with the knowledge and sanction of Her Britannic Majesty’s Government.70

(2) At the end of the 19th and the beginning of the 20th centuries, various agreements were concluded by Germany, France, and Great Britain to delimit the boundaries of their respective colonial and protected territories. (3) In the specific case of the boundary between Great Britain and Germany, this was first defined by the Agreement between Great Britain and Germany respecting Boundaries in Africa, signed at Berlin on 15 November 1893, and supplemented by a further Agreement of 19 March 1906 respecting the Boundary between British and German Territories from Yola to Lake Chad (the “Anglo-German Agreement of 1906”). The southern part of the boundary was subsequently redefined by two Agreements concluded between Great Britain and Germany in March and April 1913, under which Great Britain, apparently on the strength of the 1884 Treaty of Protection with the Kings and Chiefs of Old Calabar, purportedly ceded areas that encapsulated the Bakassi Peninsula to Germany.

70

Anglo-German Agreement, Gr. Brit-Ger., Mar. 11, 1913, 1 Counter-Memorial of Nigeria 109 (emphasis added).

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(4) At the end of World War I, all the territories belonging to Germany in the region, extending from Lake Chad to the sea, were apportioned between France and Great Britain by the Treaty of Versailles and then placed under British or French mandate by agreement with the League of Nations (the predecessor of the United Nations). (5) Following World War II, the British and French mandates over the Cameroons were replaced by United Nations trusteeship agreements. The trusteeship agreements for the British Cameroons and for the Cameroons under French administration were both approved by the General Assembly on 13 December 1946. (6) At independence, Cameroon inherited the territories that were under French sovereignty in the colonial era. On the premise that the initial British cession of the Bakassi Peninsula to the Germans and thereafter renounced in favour of the French was valid, Cameroon contended that these inherited territories included the Bakassi Peninsula. Nigeria contested Cameroon’s claims and, inter alia, questioned the competence of the British to cede the Bakassi Peninsula to the Germans, arguing that since the territories that were the subject of the 1884 Treaty of Protection were protectorates and not colonies, Great Britain was incompetent to effect the purported cession to Germany. In particular, Nigeria submitted that the title to sovereignty over Bakassi on which it relied was originally vested in the Kings and Chiefs of Old Calabar. It argued that in the pre-colonial era the city states of the Calabar region constituted an acephalous federation consisting of independent entities with international legal personality. It contended that under the Treaty of Protection signed between Great Britain and the Kings and Chiefs of Old Calabar, the latter retained their separate international status and rights, including their power to enter into relationships with other international persons, although under the Treaty, that power could only be exercised with the knowledge and approval of the British government. According to Nigeria, the Treaty only conferred certain limited rights on Great Britain; in no way did it transfer sovereignty to Britain over the territories of the Kings and Chiefs of Old Calabar. Therefore, Nigeria further asserted, since Great Britain did not have sovereignty over those territories in 1913, it could not cede them to a third party. In view of these circumstances, Nigeria submitted that the limitations on Great Britain’s powers under the 1884 Treaty of Protection, and in particular its lack of sovereignty over the Bakassi Peninsula and thus, its lack of legal authority in international law to dispose of title to it, must have been known to Germany at the time the 1913 Treaty was concluded, or ought to have been on the assumption that Germany was conducting itself in a reasonably prudent way.

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Although the disputants raised several other issues in their pleadings and in the course of oral arguments, the Court’s decision is, in large measure, predicated on the 1913 Anglo-German Agreement (and other instruments as well as factual developments that trace their roots to the 1913 Agreement). Accordingly, this critique of the Court’s decision is restricted to the Court’s determination of the validity of Great Britain’s cession of the Bakassi Peninsula to Germany (thereafter renounced in favour of France and inherited by Cameroon at independence). 2. The Court’s Jurisprudence on the Colonial Question: A Critique Properly analyzed, and having regard to the terms of the 1884 treaty between Great Britain and the Chiefs and Kings of Calabar, at the heart of this case is the validity of Great Britain’s cession of the Bakassi Peninsula to Germany through the 1913 Anglo-German Agreement. On this fundamental issue, the Court stated that “Great Britain had a clear understanding of the area ruled at different times by the Kings and Chiefs of Old Calabar, and of their standing.” This area, according to the Court, was “one of a multitude in a region where the local Rulers were not regarded as States.” Accordingly, the Court proclaims, “from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them.” The Court transformed a regime engendered by a treaty that, by its very provisions, established a protectorate into a colony or a so-called “colonial protectorate!” It is regrettable that the Court took such a position even in the face of the fact that in 1885 the British Foreign Office unequivocally stated that a protectorate involves not the direct assumption of territorial sovereignty but is “the recognition of the right of the aborigines, or other actual inhabitants to their own country, with no further assumption of territorial rights than is necessary to maintain the paramount authority and discharge the duties of the protecting power?”71 How could the Court take such a position in the face of the fact that, in similar circumstances, a British court held, as far back as 1910, that a “protectorate is under His Majesty’s dominion in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion?”72 Indeed, as Judge Awn Al-Khasawneh points out, “British colonial policy during the relevant period was marked by a consistent insistence on distinguishing between colonies and protectorates. Upholding such a distinction was a major aim of British diplomacy in the Berlin Conference, where it triumphed over 71

72

Malcolm Shaw, Title to Territory in Africa: International Legal Issues 283 (1986). R v. Crewe, (1910) 2 Eng. Rep. 576, 603–04 (K.B.).

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imperialist latecomers intent upon achieving nothing less than the threshold of effective occupation.”73 Additionally, the latest edition of Oppenheim’s International Law makes it clear that a protectorate is “[a]n arrangement . . . entered into whereby one state, while retaining to some extent its separate identity as a state, is subject to a kind of guardianship by another state. The circumstances in which this occurs and the consequences which result vary from case to case, and depend upon the particular provisions of the arrangement between the two states concerned.” Admitting that a protectorate is “a conception which lacks exact legal precision, as its real meaning depends very much upon the special case,” the author unambiguously states that “[t]he position within the international community of a state under protection is defined by the treaty of protection which enumerates the reciprocal rights and duties of the protecting and the protected states.” While “[e]ach case must therefore be treated according to its own merit,” the author further points out, “it is characteristic of a protectorate that the protected state always has, and retains, for some purposes, a position of its own as an international person and a subject of international law.”74 Remarkably, while the Court obsesses itself with what the British, in the Court’s magical determination, thought of the 1884 Treaty, it regrettably fails to consider what the Kings and Chiefs of Old Calabar had in mind when they were entering into the treaty with the British. How could the Court brazenly ignore the unambiguous terms of the 1884 Treaty preferring, instead, to embark on a frolic of its own? To make matters worse, while the Court treats treaties of protection entered into between Great Britain and certain North African entities as having been entered into with “entities which retained thereunder a previously existing sovereignty under international law,” it dismisses similar treaties with entities in sub-Saharan Africa as having been entered into “not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory!”75 The Court’s position regrettably evokes memories of the condescending manner in which the colonialists perceived and treated their victims. For instance, Westlake, writing in 1894, derided the “uncivilized natives” and asserted that “in Africa . . . an importance has sometimes been attached to treaties with uncivilized tribes, and a development has sometimes been given to them, which are more calculated to excite laughter than argument.”76 73 74

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Cameroon v. Nig., 1998 I.C.J. para. 7(d) (separate opinion of Judge Awn Al-Khasawneh). Oppenheim’s International Law: Vol. I Peace 267–269 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) (emphasis added). Cameroon v. Nig., 1998 I.C.J. para. 205. Westlake, supra note 24, at 149.

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Writing in the same vein, it should be recalled that Lawrence, unhesitatingly treated “uncivilized regions” as objects, and not subjects, of international law, even though he gleefully accorded international legal status to chartered companies. Although he described the international legal status of such companies as being of “a very imperfect and subordinate kind,” entities or districts inhabited by “the barbarous or semi-barbarous” did not even merit such status!77 In spite of this reality, the Court exhibits its insensitivity by choosing to re-enact the nightmares of the regime engendered by the Berlin conference! It was against the backdrop of this reality that in an earlier article denouncing the role of international law in the colonization of Africa,78 I asserted that “19th century international law . . . bristles with contradictions and tantalizing mirages. To the extent that nineteenth century international law, given its Eurocentricity, failed to reckon with [the legacy of Africa’s authentic history], its claim to universality is undoubtedly suspect.”79 It is, however, refreshing that Judge Al-Khasawneh’s separate opinion tasks the colonial question.80 Judge Al-Khasawneh predicates his vote with the majority solely on the fact that, in his view, “in the period leading to its independence . . . and since then till the early 1990s, Nigeria, by its actions and omissions and through statements emanating from its officials and legal experts, left no room for doubt that it had acknowledged Cameroonian sovereignty in the Bakassi Peninsula.”81 Chiding his colleagues for “unnecessarily” and “unfortunately” belaboring the validity of the 1913 Anglo-German Treaty, he could not fathom out why they chose to immerse themselves in the distinction among colonies, protectorates and the so-called “colonial protectorates,” given that it is “steeped in confusion both under international law and under the laws of the colonial Powers themselves.”82 Characterizing the Court’s approach as one “clearly rooted in an Eurocentric conception of international law based on notions of otherness, as evidenced by the fact that there were at the time in Europe protected principalities without anyone seriously entertaining the idea that they had lost their sovereignty to the protecting Power and could be disposed of at its will,” Judge Al-Khasawneh further demonstrated that “the existence of a category of protectorates, the socalled ‘colonial protectorates,’ where the protecting Power was free to dispose of the protected territory at will, is a proposition that neither State practice nor 77 78 79 80 81 82

Lawrence, supra note 45, at 69. Dakas, supra note 2, at 85. Id. at 118. Al-Khasawneh, supra note 1, at 492. Id. para. 1. Id. para. 3.

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judicial precedent supports and is, in all probability, no more than a fiction existing in the minds of some commentators who try to find ex post facto legitimization for unfathomable and illegal facts by the invention of sub-categories where normally applicable rules do not operate.” Even assuming, for the sake of argument, that the Berlin conference did sanction such behavior as evidenced by the state practice emanating from it, he pointedly asks, “Could this practice be invoked in an African dispute when no African State . . . participated in the formation of such practice?”83 Finally, Judge Al-Khasawneh expresses the view that the Kings and Chiefs of Old Calabar “had the capacity to enter into treaty relations and, unless we start from the false premise that one party to a treaty can unilaterally determine the international status of the other, we can also deduce that the treaty has international legal standing.” Accordingly, he faults the Court’s distinction between the status of treaties of protection between Great Britain and some entities in North Africa juxtaposed similar treaties in respect of sub-Saharan Africa. According to him, “in the case of Qatar and Bahrain these sheikhdoms were not independent States when Britain entered into treaty relations of protection with them but Ottoman dominions ruled under the suzerainty of the Ottoman Empire by local chiefs. The same is true of Tunisia.” Consequently, he concludes, “it would be ironic for the Court to decide that those who were under Ottoman suzerainty were in fact sovereign because it suited practical considerations of British policy that they should be so seen, and not those chiefs who were under no one’s sovereignty or suzerainty when Great Britain entered into treaties of protection. Not only would this make colonial law and not international law the determining factor, it would also raise doubts regarding the broad consistency of the Court’s decisions.”84 In a similar vein, Judge Koroma, in his dissenting opinion, observes that “the conclusion reached by the Court with respect to the 1884 Treaty between Great Britain and the Kings and Chiefs of Old Calabar regarding the Bakassi Peninsula is tantamount to a recognition of political reality rather than to an application of the treaty and the relevant legal principles . . . [I]t is not the function of the Court to recognize or consecrate political reality but rather to apply the law in ruling on disputes before it.” Judge Koroma characterizes the approach employed by the majority as “fundamentally flawed,” in consequence of which its finding on the validity of the 1884 treaty “amounts to a serious distraction from the legal issues at hand” and “is not only illegal but unjust.”85 Summing up his position, Judge Koroma aptly remarks: “by denying the legal validity of the 1884 Treaty whilst at the same time declaring valid the 83 84 85

Id. para. 3, 5. Id. para. 19. Id. at 337–391 (Koroma J., dissenting opinion).

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Anglo-German Agreement of 1913, the Court decided to recognize a political reality over the express provisions of the 1884 Treaty. The justification for this choice does not appear legal to me. It would not be justified for the Court, given its mission, if it were to be regarded as having consecrated an act which is evidently anti-legal. I regret this situation.”86 In view of these circumstances, it is worth recalling the remarks of Sir Robert Jennings, a former president of the International Court of Justice, in an address to the United Nations General Assembly in 1991, in which he made it clear that the mission of the Court is to declare and apply the law, and that it would range outside that task at its peril and at the peril of international law.87

V. Dokdo: Lessons from Bakassi It is evident from the foregoing discourse that in coming to terms with the challenges of the Dokdo issue, particularly from the prism of international law and the colonial question, several lessons are discernable from the Bakassi case. These include the following: First, Japan’s claim that Dokdo was terra nullius (and therefore subject to occupation) has a striking resemblance with the tactics employed by European colonialists in the African colonial dispensation. Accordingly, it is important to emphasize that although occupation as a mode of territorial acquisition in international law appears, on the face of it, neutral, it was, during the age of imperialism, a “powerful conceptual tool for the acquisition or aggrandizement of territory by European States”88 and, in the context of Dokdo, became “a technical or legal camouflage that serve[d] to justify an essentially expansionist and colonialist act on the part of the pre-1945 Japan.”89 Second, and flowing from the above, the question arises as to whether Japan is at liberty to justify its current claim with reference to the principle of intertemporal law, in spite of the fact that, at the material time, Korea was a Japanese colony and was, therefore, not in a position to play any meaningful role in the formulation of the international legal norms of the time. In the famous Island of Palmas case,90 Max Huber, writing in the context of the principle of

86 87

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Id. para. 3, 31. Robert Jennings, The Role of the International Court of Justice, 68 Brit. Y.B. Int’l L. 3 (1997). Lee Keun-Gwan, “Preliminary Report on the Question of Neutrality in the Context of the Japanese Annexation of Korea and a New Methodological Approach to the Annexation Question,” quoted in Jon M. Van Dyke, supra note 6, at 179. Id. United Nations, Reports of International Arbitral Awards (RIAA), Vol. II, p. 845.

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intertemporal law, remarked that “[a] juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when such a dispute in regard to it arises or falls to be settled.” Huber then introduces an evolutionary element, “the existence of the right, in other words, its continued manifestation, shall follow the conditions required by the evolution of law.”91 It is critical to accentuate the fact that the principle of intertemporal law, as Judge Al-Khasawneh admirably puts it in the Bakassi case, “is an irretrievably elusive one” even though “[a]t first sight it looks simple.”92 At a general level, Huber’s proposition is sustainable, but when one enquires more closely into its operation, problems start to arise. For instance, is appreciation in the light of the law contemporary with the judicial act, for example, a treaty of protection, the same as interpretation of such a treaty in the light of contemporaneous law? Or does it merely mean that in interpreting a treaty of the past, one should be mindful in applying the time-honored and established canons of treaty interpretation of the temporal context that may shed light on the presumed intention of the parties and thus help ascertain it?93 It is instructive that the confusion engendered by Huber’s formulation of the principle, especially the manner in which he combines static and evolutionary elements, is so profound that the principle could not find expression in the Vienna Convention on the Law of Treaties. Instead, Article 31 of the Convention speaks of “relevant rules of law,” while Article 64, in contradistinction to intertemporal law, moves in the opposite direction in the case of a subsequently emerging peremptory norm of international law or jus cogens. As Judge Al-Khasawneh further points out, intertemporal law is not only a “perplexing idea,” but also a “truncated concept” and it would: thus seem reasonable to assert that in speaking of intertemporal law, we are faced with a confusing concept the status of which as a rule, or principle, or doctrine, or rule of interpretation, is steeped in controversy and which was consciously dropped from the 1969 Convention on the Law of Treaties and consistently rejected in successive decisions of the European Court of Human Rights, not to speak of the way it was overcome by certain decisions of . . . [the International Court of Justice] and abandoned in the realm of grave crimes, ironically the very area where it can be said to have some delineation and coherence.94

In light of Article 64 of the Vienna Convention on the Law of Treaties, a subsequently emerging jus cogens would undoubtedly trump any rule or norm whose invocation is predicated on intertemporal law. It also stands to reason 91 92 93 94

Id. Al-Khasawneh, supra note 1, para. 11. Id. para. 12. Id. para. 15, 17.

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that it would be patently unjust to invoke the principle of intertemporal law in the context of a dispute where, as is the case with Dokdo, it would produce an absurd and monstrous result. Accordingly, I am of the respectful view that Japan is not at liberty to invoke international law norms that predominated in the colonial era and in respect of which the Republic of Korea could not, on account of its colonial status, make any meaningful input in its formation or crystallization. Third, and in light of the above, there is need for a paradigm shift in the treatment of legal norms that emerged in the context of colonialism, given the fact that the international legal regime of that era was “a massive fortress against popular sovereignty,” in consequence of which “[o]ne of our most important tasks is to revisit fundamental questions that were resolved by undemocratic means in the past.”95 Bakassi, therefore, challenges us to purge international law of its colonial vestiges. Fourth, the question of the fairness of international law also needs to be engaged in relation to the institutional framework for the resolution of international disputes. While it is undoubtedly the case that the International Court of Justice is increasingly becoming the forum of choice for the resolution of international disputes that fall within its jurisdiction, the Bakassi case is cause for apprehension, especially among states that were victims of colonialism and/ or imperialism. As has been noted, such states, including Korea, are justified in inclining to the view that international law is not fair and that the International Court of Justice perpetuates “existing imperialistic international law,” thus raising concern as to whether the Court would, in the context of Dokdo, hold Japan accountable for its “imperialist aggression.”96 Finally, vigilance remains the watchword. As the saying goes, “The price of liberty is eternal vigilance.”

VI. Conclusion On the face of it, Cameroon v Nigeria was simply a territorial dispute between two African states. In reality, however, and as borne out by the preceding discourse, colonialism was on trial. Regrettably, the Court, with due respect, abdicated its responsibility. As Judge Al-Khasawneh rightly observes:

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Doug Hammerstrom, The Rule of Law Versus Democracy, in 5 By What Authority 1, 1 (2002). Hideki Kajimura, The Question of Takeshima/Tokda, 28 Korea Observer 423, 468–469 (1997).

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Finally, while it is beyond dispute that international law has undergone a remarkable transformation over the years and no longer portrays itself, at least not explicitly, as the exclusive preserve of the “civilized,”98 the ghost of colonialism, as evident from the Court’s position in the Bakassi case, still haunts international law. In spite of the failure of the International Court of Justice to critically engage the colonial question in the Bakassi case, we must not despair. We must persevere, learn from the lessons of Bakassi and, with the benefit of hindsight, engage the issue of Dokdo from a prism that interrogates international law against the backdrop of Japanese colonial exploits in Korea and chart a course of action consistent with the imperative of vigilance. 97

98

Al-Khasawneh, supra note 1, para. 3. It is against the backdrop of this reality that Nigeria’s outburst should be appreciated: In its official reaction to the verdict, the Nigerian government, on Wednesday, October 23, 2002, asserted that “for purely political reasons, the court, headed by a French President, upheld a legal position which is contrary to all known laws and conventions, thus legitimising and promoting the interests of former colonial powers at our expense.” Alleging bias, the Nigerian government maintained that “[t]he French President of the court and the English and German judges should have disqualified themselves since the countries which they represent are, in essence, parties to the action or have substantial stakes.” “These judges, as citizens of the colonial powers whose action had come under scrutiny,” Nigeria further asserted, “acted as judges in their own cause . . .” New Nigerian 3 (Oct. 25, 2002). Cf. Statute of the International Court of Justice, art. 38(1)(c) speaks of “the general principles of law recognized by civilized nations,” without enunciating what the test of civilization is, June 26, 1945, 59 Stat. 1055, T. S. 993, 3 Bevans 1179.

Chapter VII Problems of Contiguity, Natural Unity, and Ancient Original Title to Islands with Special Reference to Dokdo Kaiyan Homi Kaikobad* I. Introduction This study is an attempt to examine the problem of the two disputed islands known collectively as Dokdo to the Korean nation, as Takeshima to Japan, and, at one time, as Liancourt Rocks to the Western world. In order to avoid confusion, it is perhaps easier simply to use one name, that is, Dokdo, with the caveat that the choice of names does not in any way prejudice the analysis. These two very small islands, indeed islets, lie southeast of Ulleungdo in the East Sea. The existence of a dispute between the Republic of Korea and Japan regarding sovereignty over this pair of islands is well known as are the various claims made by the two parties regarding sovereignty over Dokdo. It is difficult to encapsulate the entire range of claims and counter-claims made by both Korea and Japan regarding Dokdo, but it is essential that some of the key claims are outlined even if they are done in broad general terms. This attempt at encapsulation of the main arguments of the two states is necessary insofar as it provides perspective and this will help in following the general contours of the arguments of the parties, Japan and Korea. As far as Korea is concerned, Dokdo is claimed on the basis of ancient original title.1 In terms of international law, then, the claim over Dokdo is not derived from any source as for example cession, conquest or acquisitive prescription and it is accordingly an original claim to title. The government in Seoul argues, as it

* Professor of International Law, Brunel University. 1 See generally Northeast Asian History Foundation, Dokdo: Korean Territory Since the Sixth Century 2 (2005); Jon M. Van Dyke, Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary, 38 Ocean Dev. & Int’l Law 157, 165 (2007); Sibbett, Dokdo or Takeshima? The Territorial Dispute between Japan and the Republic of Korea, 21 Fordham Int’l L.J. 1637.

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always has, that Dokdo has since time immemorial been Korean territory; and that there has never been a time in ancient history that the islands have not appertained to Korea. Of course it is accepted, because an inescapable historical fact, that Japan annexed the pair of islets in 1905 by virtue of the Shimane Prefecture Public Notice No. 40 of 1905. Seoul, however, has claimed that such an annexation was indeed illegal and that no title passed in favor of Japan. Thus, although Japan controlled Dokdo, as it did all of Korea from 1910 onwards, sovereignty continued to remain vested firmly in favor of Korea. At the end of the Second World War, Japan was occupied by the Allied army, and in 1946, the latter decided to identify the territories over which Japan was regarded as having ceased to exercise governmental control. The argument upon which Korea relies heavily is that the law adopted by the Allied Supreme Command, namely Supreme Command for Allied Powers Instruction No. 677, excluded Dokdo from those territories which were controlled and administered by Japan. This, the Korean government believes, implies that the United States accepted at that time that Dokdo was not a Japanese island. Continuing in this vein, Korea claims that by renouncing all its Korean mainland and island possessions by virtue of the Treaty of San Francisco of 8 September 1951,2 Japan also formally ended its illegal annexation, control and jurisdiction over Dokdo, sovereignty over which then reverted immediately to Korea. When the United States eventually transferred power to the Korean government, possession over Dokdo also peacefully passed over to the Korean government. The position taken by Japan mirrors that of Korea. For Japan, the island pair called Takeshima has been an integral part of Japan since ancient times and that sovereignty over the pair has always vested therein. It is also been suggested that the annexation in 1905 was a legal mechanism necessary to control the hunting of sea lions3 and by this reasoning the act of annexation was thus a merely a regularization of a state of affairs. In other words, the annexation was confirmative, as opposed to vestitive, of title in Japan. It also offers to explain its position by stressing that when, in the 1951 Treaty of San Francisco, Japan renounced all right, title and claim to Korea and the islands of Quelpart (Jejudo), Port Hamilton (Geomundo) and Dagelet (Ulleungdo), there was no express mention of the island of Takeshima. Importantly the failure to mention Takeshima in the 1951 Treaty was not a case of careless oversight: it is pointed out that this omission was more a case of a careful, studied omission made in the context of contested claims to Dokdo.4 2 3

4

Treaty of San Francisco, Sept. 8, 1951, 136 U.N.T.S. 45; TIAS No. 2490. Taijudo, The Dispute between Japan and Korea Respecting Sovereignty over Takeshima, 12 Japanese Ann. Int’l Law 1, 11 (1968). See generally Seokwoo Lee, International Law and the Resolution of Territorial Disputes over Islands in East Asia 244–245 (July 2001) (unpublished Doctoral Thesis, St. Antony’s College, University of Oxford).

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The facts stated above indicate that a large number of legal issues attend the dispute over Dokdo. The purpose of this study is not to examine all of these issues, but to scrutinize and apply a frequently overlooked aspect of the Dokdo/ Takeshima problem, namely geographical propinquity as a root of title. It is in this context that related issues such as ancient title and control are applied to the dispute under examination. Appropriately, a word on the legal relations of geography in general follows below.

II. The Legal Relevance Of Geography As far as the basic facts of geography are concerned, it is the case that Dokdo lies 49 miles or 87.4 kilometers southeast of Ulleungdo, an undisputed Korean island. It comprises of two sections, that is, East and West Islands or Dongdo and Seodo respectively, and both are surrounded by thirty-two smaller insular features such as rocks and reefs.5 Dokdo/Takeshima is about 86 miles or 157 kilometers northwest from the nearest island group of Japan, Oki-Shoto, comprised of two main islands, Dozen (Daisen) and Dogo. Accordingly, in terms of simple geographical terms, Dokdo/Takeshima is closer to Korea than Japan. On a clear day, Dokdo/Takeshima is visible from Ulleungdo by the naked eye, a fact which has encouraged the belief and understanding among residents of the latter island and the mainland that disputed Dokdo/Takeshima is in fact Korean territory. The fundamental issue here involves examining the precise role which the notion of geographical contiguity will play in the matter of title to territory. Importantly, the term contiguity is used here with wide as opposed to narrow connotations. It is a useful shorthand generic notion which for purposes of this study embraces a cluster of related but distinct ideas as for example adjacency, proximity, and the distance criterion. There are several complex motifs to this question, each of them being closely related to the other, an analysis of which is based in the fact that the law on the matter here varies according to the geographical nature of the territory in question. In other words, the rules on a particular issue will depend on whether the territory is land or maritime; and it will further vary according to the type of land territory which is in issue. Here, therefore, a distinction must be made between terra firma or mainland territory, and insular or maritime features, and the precise category of territory being envisaged here is that of islands, rocks, and low tide elevations; but only the first two are of concern here, namely islands and rocks, and features such as cays and islets. These three categories are examined carefully below. 5

Myung-Ki Kim, A Study on Legal Aspects of Japan’s Claim to Tokdo, 28 Korea Observer 359 (1997).

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III. Contiguity and Land Territory As far as land territory is concerned, and here reference is being made to terra firma on the mainland, as opposed to insular territory, there is in principle no rule of law which allows a state to claim title to a parcel of land purely or strictly on the basis of contiguity, proximity, distance, or adjacency, notions which are at any rate highly subjective in nature. The point here is that in order to claim title successfully to, for example, a forest, a mountain pass, or a range of hills and the like, a state must establish the right by reference to principles of law relative to title. In situations such as this, it will be for the claimant state to demonstrate that it had acquired title by demonstrating the existence of any one or more roots of title, or as sometimes referred to as modes of acquisition of title on the basis of which the claim is being made, starting from discovery and occupation, and leading to cession, conquest, and annexation; acquiescence, recognition, and estoppel; and ancient original title; and a combination of all these categories. It is true of course that from time to time states have claimed title on the basis of contiguity without more, which in terms of land territory became known as the hinterland theory, a policy factor, as opposed to a legal criterion or rule, employed by the metropolitan powers in their ever expanding-colonial empires in the New World, Asia, and Africa.6 This theory entitled the colonial power the right to claim all the land which lay landward of the coast, that is, the hinterland; but the question which then arose was the spatial extent to which the hinterland could be claimed. There then developed the notion of an organic territorial unity or entity, the point being that the right to the hinterland ended where the signs of a natural break in that unity were evidenced, that is where the existence of a mountain range, a body of water, a swamp or a river and the like became clear.7 6

7

See generally Travers Twiss, The Law of Nations Considered as Independent Political Communities 203–10 (1884); M.F. Lindley, The Acquisition and Government of Backward Territory in International Law, 4–6, 234–35, 270–83 (1926); 139 et seq on occupation; T.J. Lawrence, The Principles of International Law 146–54 (7th ed. 1928); Ian Brownlie, Principles of International Law 135–37, 142–43 (6th ed. 2003); H. Waldock, Disputed Sovereignty in the Falkland Island Dependencies, 25 BYIL 317, 340–46 (1948); Vittorio Adami, National Frontiers in Relation to International Law (1927). See Amos S. Hershey, The Essentials of International Law and Organisation 269 n.7 (1930) (maintain that the territory of a State excludes the back country, that is the hinterlands); Daniel P. O’Connell, International Law 413–15 (2nd ed. 1970); Oppenheim’s International Law 559–62 (H. Lauterpacht ed., 8th ed. 1955); Prescott, Political Frontiers and Boundaries 36 (1978). See A.O. Cukwurah, The Settlement of Boundary Disputes in International Law 16–26 (1967); W.F. van Eekelen, Indian Foreign Policy and the Border Dispute with China 147–49 (1967).

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It would appear then that claims to parcels of territory were being advanced strictly by reference to the point at which they existed, bringing in notions of contiguity and adjacency. These issues informed the Oregon Territory dispute. There, the United States laid claim to the hinterland of the mouth of the Columbia River which had been “discovered” by an American trader in 1792, but which had also been previously surveyed by a British naval officer and who then subsequently navigated the river upstream for a hundred miles and who then claimed title on behalf of the British government. In essence, U.S. claims relied on the hinterland theory resting on the fact, inter alia, that a U.S. post had been established at the mouth of the Columbia in 1811.8 Issues of this kind were in play between the parties in Brazil vs. British Guiana.9 The sole arbitrator, the King of Italy, declared in his award: [T]he effective possession of a part of a region, although it may be held to confer a right to the acquisition of the sovereignty of the whole of a region which constitutes a single organic whole, cannot confer a right to the acquisition of the whole of a region which, either owing to its size or to its physical configuration, cannot be deemed to be a single organic whole de facto.10

What the sole arbitrator was saying here is that it is not sufficient merely to show that the entire region is a single organic whole, it must also be demonstrated that the physical size and configuration of the unit is such that it must also be a single organic unity in fact. This would then rule out regions which were far too enormous or fragmented in geographical terms to be classed as one whole organic entity. Most importantly, the ruling is prefaced by the requirement of effective possession, and it could be added that while it must be, as the sole arbitrator observed, effective in actual physical terms, the control in question must also be sovereign in terms of legal quality; it must be control à titre de souverain. Similarly, in the Walfish Bay Boundary case11 between Great Britain and Germany, the former argued that the hinterland doctrine vested rights in favor of the first occupant, that is, Great Britain. The arbitrator held that it was unnecessary to invoke the said doctrine because the facts as determined by him warranted the prolongation of Walfish Bay up to Ururas. Moreover, the

8

9 10 11

O’Connell, supra note 6, at 414; Twiss, supra note 6, at 207–09, 201–03; Lawrence, supra note 6, at 153. Cf. Donat Pharand, Canada’s Arctic Waters in International Law 29 (1988) (U.S. subsequently abandoned that position; and that it had marshaled other sources of title as well); see also Julius Goebel, The Struggle for the Falkland Islands A Study in Legal and Diplomatic History 47 (1927). (Issues of discovery and occupation are also of central concern with respect to the Falkland Islands dispute). Guiana Boundary (Braz. v. Gr. Brit.), XI UNRIAA 11 (June 10, 1904). Id. at 21–22. Walfish Bay Boundary (Germany v. Gr. Brit.), XI UNRIAA 263 (May 23, 1911).

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doctrine was inapplicable to the case because the taking of possession of the territory and its antecedents indicated the intention of including the land annexed within precise limits with the implicit intention of renunciation of all intention to extend them, and because it required the existence or assertion of political influence over certain territory, none of which circumstances applied to the present controversy.12 Despite these findings, the fact is that neither the hinterland theory nor the watershed principle has ever been regarded as a doctrine of international law and has no enthusiastic adherents today.13 The general point being made here is the fact that in land terra firma territorial disputes, proximity without more has not been sufficient to vest title in the claimant state. If this were not the case, then parcels of land such as Gibraltar would appertain to Spain merely on the strength of the fact that the Rock is located at the southern tip of the peninsula; or at the eastern headlands of the Spain’s Algeciras Bay, and is totally Spanish in terms of contiguity;14 not unlike the northern tip of the United Arab Emirate Peninsula which appertains to Oman as opposed to the UAE. As Waldock observed: By the end of the [nineteenth] century, international law had decisively rejected geographical doctrines as distinct legal roots of title and had made effective occupation the sole test of establishment of title to new lands. Geographical proximity, together with other geographical considerations, is certainly relevant, but as a fact assisting the determination of the limits of an effective occupation, but not as an independent source of title.15

In his study of the matter, Jennings (amongst other scholars) calls for a presumptio juris, that is to say that contiguity is no more than evidence raising some sort of presumption of effective occupation; a presumption which may be rebutted by evidence of sovereign possession by a rival claimant.16 The position taken here is that although there is good reason to accept this presumptio juris, there are better reasons to modify it for further improvement. For one thing, a rebuttable presumption in favor of title will obviously be of little, if any use, for disputants who are neighboring adjacent states for in that case both can easily contend that the parcel of land is contiguous. The Great Rann, for example, is contiguous to both Pakistan and India and that fact alone could not have aided the two states in the Rann of Kutch arbitration.17 It follows that it plays a limited

12 13 14 15 16 17

Id. at 306–07. See D.W. Greig, International Law 138 (1970). R.Y. Jennings, Acquisition of Territory in International Law 75 (1967). Waldock, supra note 6, at 342. See also Pharand, supra note 8, at 43. Rann of Kutch Arbitration (India v. Pakistan), 1968 50 I.L.R. 2.

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role, namely between two states who are not contiguous to each other as in the case of the United Kingdom and Spain in the matter of Gibraltar. For another, and this is a more serious difficulty in the rebuttable presumption theory, is that it is a permissive as opposed to a preclusive presumption. It allows a state to justify its claim on the basis of contiguity if indeed it can be done, as opposed to starting from a position where the presumption is against title unless there are rules of law which would tolerate such claims being made and indeed established by evidence. Thus, in this rebuttable presumption situation, title vests in the contiguous state unless that presumption is rebutted. It would place the burden of rebutting title on a disputing state freeing the contiguous state from providing evidence of title, making it that much easier for it in a dispute situation. In a preclusive approach which is advocated here, however, the claimant state would have to prove title positively or any rule of law allowing territory to be allocated to it, failing which title would not vest in the disputing state. The reason why the latter approach is to be preferred is because it serves to arrest the appetite of greedy states for even more territory, a given in international law and relations. In other words, the burden of proving title would fall squarely on the claimant state, the way it ought in fact to be.

IV. Contiguity and Maritime Territory The observations made above are in marked contrast with maritime areas to which attention must now be focused and which constitutes the second point in the list of observations. It is well known and better understood that maritime areas all stem from one basic fact and criterion, that is the existence of land territory; or to put it another way, there can be no claim to territorial sovereignty to maritime areas if there is no land territory; and it follows also that there can be no sovereign rights to maritime areas in the absence of the qualifying criterion of land. This would appear trite knowledge but it is in fact one the two related reasons why land-locked states do not have territorial sovereignty or sovereign rights to maritime areas; the other one being that all the body of water lying beyond national jurisdiction is res communis, or part of the high seas regime which precludes any kind of sovereign or territorial claim.18 The general rule is that a state is entitled to exercise territorial sovereignty over the following three kinds of maritime spaces: internal waters, territorial seas, and archipelagic waters. What is important for current purposes is the fact

18

A land-locked state can indeed exercise jurisdiction over maritime areas where it has secured a leasehold over a port and the acquired right to maintain a coastal contiguous zone.

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that the only criterion is geography, and by way of negative contrast, there is no test based on effective occupation. As far as the concept of internal waters is concerned, the coastal state exercises territorial sovereignty which is more or less completely identical with sovereignty over terra firma. There are some points of distinction, but they are not material to this study. While the United Nations Convention on the Law of the Sea (UNCLOS) provides an elaborate set of rules with respect to the delimitation of internal waters, as for example juridical bays in Article 10, it stops short of providing rules on the regime of internal waters, leaving individual states parties to the convention to determine the precise regime on the basis principles of customary international law. Article 8 simply stipulates that waters on the landward side of the baseline of the territorial sea form part of the internal waters of the [coastal] state. Customary international law in this context has developed from a number of Anglo-American case law which have laid down the test of inter fauces terrae, or where the waters lie within the jaws of the land, which is another way of stating that waters must be so closely related or linked to the land that they are effectively enclosed by it. Cases such as Mortensen vs. Peters;19 Dominion Coal Co. vs. County of Cape Breton;20 Direct United States Cable Co. vs. Anglo-American Telegraph Co.;21 The Fagernes;22 and R. vs. Cunningham23 were in a sense seminal and led to the test encapsulated in paragraph 2 of Article 10 of UNCLOS, that is to say, “a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters.”24 In a similar vein, territorial waters are also attributed to a state, not by virtue of the geographical configuration of that body of water but a more straightforward technique, namely distance,25 and thus by virtue of Article 3 of the convention, every coastal state has the right to claim these waters to a maximum of twelve nautical miles measured from the baselines determined in accordance with the provisions of the convention, the first of which are known as normal

19 20 21

22 23

24

25

Mortensen v. Peters, 14 Scots Law Times Rep. 227 (1906). Dominion Coal Co. v. County of Cape Breton, 40 DLR 2nd 593 (1963). Direct United States Cable Co. v. Anglo-American Telegraph Co., LR 2 App. Cas. 394 (1877). The Fagernes, 96 L.J.P. 183, 311 (1927). R. v. Cunningham, Bell 72 (1859); see C.J. Colombos, The International Law of the Sea 182–83 (6th ed. 1967); see generally Leo J. Bouchez, The Regime of Bays in International Law (1964); Mitchell P. Strohl, The International Law of Bays 162–67 (1963). Convention on the Territorial Sea and Contiguous Zone, art. 7, para. 2, Apr. 29, 1958, 516 U.N.T.S. 205. Supra note 13, at 139.

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baselines which follow the sinuosities of the coastline.26 It is the second type, namely straight baselines, which are of particular interest insofar as they are again a product of the geography of the coastline and are described in Article 7 of the convention. Reference to these islands are made later in this chapter; all that is necessary here is to note that the sole criterion which vests the waters adjacent to the coast seaward of these baselines in favor of the coastal state is the rule of distance; no control need be shown. Archipelagic waters is the third kind of body of water which appertain to a coastal state solely by virtue of the geography of the state, and here the basic qualifying right is vested in what may be loosely be described as a mid-ocean archipelagic state as defined in Article 46 of the convention.27 According to Article 49, the territorial sovereignty of an archipelagic state extends to the waters enclosed by the archipelagic baselines determined by virtue of Article 47 of the convention and referred to as archipelagic waters. As in territorial waters, territorial sovereignty over the archipelagic waters is exercised subject to the provisions of the convention. As far as sovereign rights are concerned, these are typified by the rights to the continental shelf and the exclusive economic zone. As far as the former is concerned, Article 76 of the convention provides a right to claim a continental shelf on the basis of the notion of “natural prolongation of its land territory to the outer edge of the continental margin” which itself is also described as the natural prolongation of the submerged land mass of the coastal state in paragraphs 1 and 3.28 This shelf then extends up to 200 nautical miles; but where certain geographical or alternatively a distance criteria are applicable, paragraph 4 allows an extension of the shelf to a maximum of 350 nautical miles subject to the recommendations of the Commission on the Limits of the Continental Shelf. The exclusive economic zone is more straightforward insofar as the distance thereof is confined to a maximum of 200 nautical miles. Interestingly, while the continental shelf appertains to the coastal state on ab initio ipso facto basis where “the rights of the coastal state over the continental shelf do not depend on occupation, effective or notional, or any express proclamation,” no such characteristic is stated in Part 5 dealing with the economic zone.

26

27

28

United Nations Convention on the Law of the Sea, art. 5, Dec. 10, 1982, 1833 U.N.T.S. 396. See Hiran W. Jayewardene, The Regime of Islands in International Law 104–06, 134– 39 (1990) (the fundamental question was whether an archipelago was water studded by islands or islands surrounded by water). Brownlie, supra note 6, at 144. (referring to contiguity here as an earnest of effectiveness and an element in claims to the continental shelf.

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V. Contiguity and Insular Features The third set of observations is concerned with maritime and insular features such as islands, islets, cays, and rocks. Insofar as the defining characteristic of an island is the existence of a maritime feature around a parcel of land, that is to say, a body of sea, lake, or river water permanently surrounding a parcel of land,29 which may or may not be inhabited or be inhabitable,30 it is appropriate that greater attention be paid to this category of territory in a study which has as its purpose an analysis of the Dokdo Islands dispute. At the outset, however, it is essential to point out that the islands primarily in contemplation here are relatively small in size as opposed to those which are rather large, as, for example Britain, or even Iceland.31 It is in the context of these insular features that the theory of contiguity has found its breeding grounds, as it were, where it has failed to find one on terra firma. “In relation to islands,” Brownlie writes, albeit not without a measure of caution, “contiguity is the relevant concept.”32 Thus it is that in the Aves Island arbitration, the Dutch government relied on the argument of proximity of and unity of Aves Island with the Dutch island of Saba, which lay approximately 40 leagues away as a basis of title against the claims of Venezuela.33 Similarly, the President of the United States, who was appointed arbiters by Great Britain and Portugal in the island and territorial dispute known as the Bulama Island arbitration,34 took into account the fact “that the coast line from Bissao to Guinala, after crossing the River Jeba, includes the whole coast on the mainland opposite to the Island of Bulama; that the Island of Bulama is adjacent to the mainland, and so near it that animals cross at low water . . .”35 In the much more recent Land, Island, and Maritime Frontier (El Salvador vs. Honduras) case, the latter, in making its claim to the disputed islands of El Tigre, Meanguera and Meanguerita in the Gulf of Fonseca, argued that in addition to being a successor state to Spain and all its possession, it was adjacent to all its islands in the Pacific Ocean.36 More on this aspect of the matter is to be found in succeeding paragraphs. At this juncture, it suffices to aver that the legal significance of contiguity has also

29

30 31 32 33 34 35 36

Bowett, The Legal Regime of Islands in International Law 1–8 (1979) (a detailed discussion on the definition of islands); see Jayewardene, supra note 27, at 1–6. The element of inhabitation is, of course, not part of the definition. See Lawrence, supra note 6, at 152–53, 274. Brownlie, supra note 6, at 142; See also O’Connell, supra note 6, at 419–20. John B. Moore, International Arbitrations, Vol. V 5037 (1893). Island of Bulama Island Arbitration, 61 BFSP 1103 (1870). Id. at 1104. Land, Island, and Maritime Frontier (El Sal. v. Hond.), 1992 I.C.J. 351, 560.

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been subject to critical analysis. One of the difficulties is that there is no great consensus between states and jurists with respect to the precise scope, nature, and effect of this rule. Brownlie warns that the “principle of contiguity” is little more than a technique in the application of the normal principles of effective occupation; and that in relation to islands in particular, the notion of contiguity may be unhelpful.37 This is in contrast, for example, to the matter of a recognized rule which provides a rebuttable presumption in favor of a thalweg boundary in navigable rivers where there is no agreement, express or implied, with respect to a boundary line in the river.38 One of the sources of the difficulty is that the notion of contiguity with respect to islands appears to be dominated by the rebuttable presumption in favor of sovereignty. This rule is predicated on the fact where an island is located in the territorial sea of a costal state, it stands to benefit from a presumption that that relevant island appertains to the coastal state unless evidence to the contrary is produced. This presumption of law has garnered scholarly support, as evidenced in the writings of Lindley,39 Pharand,40 Fitzmaurice,41 Waldock,42 Oppenheim/Lauterpacht,43 Hershey,44 and Bowett.45 The latter takes the following position on the matter: This can be no more than a presumption. For not infrequently islands under the sovereignty of one state lie within a distance from the shore of another state which is less than the limit of territorial waters. Hence, the presumption is displaced where proof of sovereignty in another state is adduced.46

It follows that if the notion of a rebuttable presumption is taken to its logical conclusion, the coastal state would stand to benefit for the presumption of sovereignty would need to be displaced by the other state by adducing of evidence to that effect. 37 38

39 40 41

42 43 44 45

46

Brownlie, supra note 6, at 143. See Kaiyan Kaikobad, The Shatt al Arab Boundary Question: A Legal Reappraisal 75–85 (1988). Lindley, supra note 6, at 7. Pharand, supra note 8, at 42–43. See Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 32 BYIL 20, 73–75 (1955–56). Waldock, supra note 6, at 343–45. Oppenheim, supra note 6, at 565. Hershey, supra note 6, at 287. See Bowett, The Legal Regime of Islands in International Law 48–50 (1979); see also Maritime Delimitation and Territorial Questions (Qatar v. Bahr.), 2001 I.C.J. 40, 247 (Kooijmans, J., separate opinion); See also supra note 6, at 143 (Lawrence’s observation that islands fringing the coast appertain to the coastal state has no reference to either a rebuttable presumption or distance; it is clear however that he was referring to a “portico principle” situation). Maritime Delimitation and Territorial Questions (Qatar v. Bahr.), supra note 45, at 49.

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The arbitration tribunal in the Eritrea vs. Yemen47 case seemed to endorse this presumption rule but failed to give it fulsome support, a fact adverted to presently. Here it is appropriate to observe that the tribunal examined Yemen’s argument that the disputed islands in the Red Sea were part of one geographical or natural unity linked to the mainland of Yemen, and held that it had “no difficulty in accepting [the] statements of high authority,” on the matter of contiguity, namely those of Waldock, de Visscher, Bowett, and Jennings. However, it went on to note that notions such as contiguity, proximity, continuity, and natural unity did not create title, “but rather raised the possibility or presumption for extending to the area in question an existing title already established in another, but proximate or contiguous, part of the same unity.”48 By way of abundant caution, it needs to be emphasized that the International Court of Justice’s decision with respect to South Ledge, a low tide elevation lying south west of Middle Rocks, in Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge (Malaysia vs. Singapore)49 was not a confirmation of the rule regarding a presumption of sovereignty of islands within the territorial sea of a coastal state. It is correct that the Court did hold that South Ledge belongs to the state in the territorial waters of which it was located50 and that such a finding appears, on the face of it, as an endorsement of the above rule. However, the reality is somewhat more complex and the decision has to be seen in the context not only of the arguments made by these states but also more importantly, the decision of the Court in Maritime Delimitation and Territorial Questions (Qatar vs. Bahrain).51 In the latter case, Bahrain argued and Qatar rejected the claim that Qit’at Jaradah, a low tide elevation, could be appropriated not unlike islands.52 The Court had held that the rules of the law of the sea were different for islands and for low tide elevations.53 They were not terra firma as were islands. Nor was the Court aware of a rule of customary international law which would either permit or exclude the unequivocal appropriation of low tide elevations.54 Under Article 13 of UNCLOS, where a low tide elevation was located within the territorial sea of a coastal state or its islands, then that low tide elevation could be used as the baseline for measuring the breadth of the territorial sea. However, low 47 48

49

50 51 52 53 54

Eritrea-Yemen Arbitration, 114 I.L.R. 1 (Dec. 17, 1999). Id. at 120; see also Island and Maritime Delimitation (Qatar vs. Bahr.), 2001 I.C.J. 40, 189–90 (Ranjeva and Koroma, J., joint dissenting opinion). Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay. v. Sing.), 2008 I.C.J. (May 23). Id., para. 299. Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), supra note 45 at 40. Id., para. 200. See generally Id. para. 195–209. Id., para. 204.

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tide elevations lying outside the territorial sea did not have their own territorial sea; nor did the convention permit an expansion of the territorial waters by way of what is known as “leap-frogging” of low tide elevations.55 The Court concluded effectively that there was justification for treating low tide elevations differently from islands. One manifestation of differential treatment was that where they lay in overlapping claims of the territorial seas of disputing states, low tide elevations were for purposes of maritime delimitation to be discounted. Accordingly, Qit’at al Jaradah, a low tide feature, could not, as claimed by Bahrain, be subject to acquisition of title, and had to be disregarded in drawing the equidistance line between the parties.56 The Court in Pedra Branca confirmed the general ruling applied in Qatar vs. Bahrain, and subsequently also in Territorial and Maritime Dispute in the Caribbean (Nicaragua vs. Honduras),57 but then took the matter a step further by declaring in Pedra Branca that whereas low tide elevations were [not susceptible of appropriation],58 and that whereas the Court was not empowered to determine the maritime limits of Malaysia and Singapore, it was nonetheless mandated to determine sovereignty over South Ledge.59 The Court therefore decided to carry out its task by indirect means: it effectively held that the status of South Ledge would be determined not by way of active attribution of sovereignty by the Court to one Party or the other, but by way of passive allocation by the parties when they eventually determined the line between their territorial waters.60 In other words, the Court was in effect saying that insofar as low tide elevations could not be appropriated in the usual way, the only course open to it was to indicate the principle by which sovereignty could be determined, and hence the status of South Ledge would simply be a byproduct of maritime delimitation. There are difficulties with this decision of the Court, but this not the place to examine them at length.61 All that needs to be noted here is that

55 56 57

58

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60 61

Id., para. 207. Id., para. 209; see also para. 40 (Sreenivasa Rao, J., separate opinion). Territorial and Maritime Dispute in the Caribbean (Nicar. v. Hond.), 2007 I.C.J. para. 141– 42 (Oct. 8). The language used by the Court here is guarded. It was the government of Singapore here which was arguing that South Ledge being a low tide elevation could not be appropriated; see Sovereignty over Pedra Branca/Pulau Batu Putech (Malay. v. Sing.), Counter Memorial of Singapore, 2005 I.C.J. 214. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, supra note 49, para. 298. Id., para. 299. For one thing, it could be seen as a failure of jurisdiction. By highlighting the principle by which status is decided as opposed to actual attribution of sovereignty the Court did not really resolve the problem and it now depends on the parties to draw the boundary line and accept the attribution as a result thereof. For another, the Court in Qatar v. Bahrain ought to have

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once the background of the decision is borne in mind, it becomes apparent that it was not really corroboration of the presumption of sovereignty of islands in the territorial seas. Notwithstanding the above, the position taken here, as noted in an earlier part of this study, is that a degree of caution is advised with respect to formulating rebuttable presumptions in favor of sovereignty. The first reason why this is so is based on a doctrinal appreciation of the rule which is that all claims of title to islands, and indeed, territory, need to be established by way of evidence of law and fact. The essence of the point is that for purposes of title to territory, the state will, on this view of the matter, have to rely on one or more roots and facts of title; and accordingly tribunals will be right to expect the claimant state to adduce evidence consistent with discovery and effective occupation; cession; conquest and annexation where applicable; acquiescence and recognition; and ancient original title and a combination of any two or more of these categories. In this context, Bowett’s observations with respect to islands in the high seas, as opposed to the territorial waters, are instructive, for he writes: Thus sovereignty will depend upon the same criteria as are applied to any land territory and, whether title is claimed to derive from some good root of title (as by a treaty of cession) or from occupation of a res nullius, the claimant state must demonstrate a continuous and peaceful display of sovereignty over the island territory.62

Although he wrote this passage as an exception to the rebuttable presumption rule, the same approach applies, it is believed, with respect to islands in the territorial seas of a coastal state as well. The observations made by Judge Huber in the Island of Palmas case are particularly apposite insofar as he formally ruled out such a presumption by stating: The principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one state rather than another, either by agreement between the parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure the presumption of sovereignty in favor of a particular state, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other states from a region and the duty to display therein the activities of a state.63

62

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disregarded that low tide elevation as a relevant circumstance rather than the no appropriation rule. Bowett, supra note 29, at 50 (emphasis original); see also Land, Island, and Maritime Frontier, supra note 36, at 351 (his observations against absolute proximity by referring to it as having “dubious legal foundation” in his capacity as Counsel for El Salvador); see also Rejoinder of El Salvador (1989), available at http://www.icj-cij.org/docket/files/75/6605.pdf?PHPSESSID= 8435b263fe713755cd0ea766287e21e7. Island of Palmas (Neth. v. US), II UNRIAA 829, 854–55 (Apr. 4, 1928).

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This observation needs to be seen in the context of another passage form his award where he stated: [I]t is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a state from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule of international law, but the alleged principle itself is by its very nature so uncertain and contested that even governments of the same state have on different occasions maintained contradictory opinions as to its soundness.64

On the face of it, this was an indirect or a contrario way of endorsing the premise that where it was located within the territorial sea of the coastal state, an island was to benefit ipso facto from the presumption of title in favor of the coastal state. However, a more careful scrutiny will reveal that this was not indeed the case. For one thing, the language employed by the sole arbitrator was noncommittal. He did not state expressly that coastal states benefit from this presumption. For another, the factual notion of “geographically close” at that time will have been informed by reference to the breadth of the territorial sea, which in 1928 was anywhere between three, four, and six miles; yet, the notion of “geographically close” is hardly applicable in the current era where the breadth of the territorial sea is up to a maximum of 12 nautical miles. Furthermore, the thrust of the point was simply to emphasize the fact that no presumptions existed in favor of the coastal state over islands on the high seas, not unlike the point made by Bowett cited above. To be sure, the proposition being forwarded here is not that the doctrine of contiguity and proximity has no place in the law of title to territory, for indeed it does, as examined below. The main point of criticism is that there ought to be no presumption in favor of an existing title in the coastal state. It follows that neither state has any advantage over the other. Both states proceed in the normal way and seek to establish title according to the law and facts upon which they can rely. In other words, the well known rule applies, and that is that the state averring a claim must seek to prove it. Nor has international judicial practice proceeded on the basis of a strict rebuttable presumption basis. Thus, in Eritrea vs. Yemen referred to above, while the tribunal endorsed the presumption rule for contiguous islands, it did not actually extend any presumptions of sovereignty to either state party for at least two reasons. First, with contiguity arose a complementary question “of how far 64

Id. at 854; see supra note 6, at 143; McDougal and Burke, The Public Order of the Oceans A Contemporary International Law of the Sea 641 (1962); Georg Schwarzenberger, International Law, Vol. I: International Law as Applied by International Courts and Tribunals 336–37 (1957).

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the sway established on one of the mainland coasts should be considered to continue to some islands or islets off that coast which are naturally ‘proximate’ to the [opposite] coast or ‘appurtenant’ to it . . . Thus the principle of natural and physical unity is a two-edged sword, for if it is indeed to be applied then the question arises whether the unity is to be seen as originating from the one coast or the other.”65 The second reason was that both parties had indeed conceded that it may be accepted that there can be sub-groups within the main group of islands,66 a fact which detracted somewhat from the contiguity-unity rule. Accordingly, the tribunal was constrained to adopt a position which it conceded was inconsistent with the pleadings of the parties, that is, the possibility of dividing the islands by reference to the weight of the evidence presented to the tribunal.67 Nor did the International Court of Justice give a ringing endorsement to the rebuttable presumption or indeed the contiguity-proximity rule in Qatar vs. Bahrain.68 In that case, a central aspect of the dispute focused on the status of the Hawar Islands. Being located fairly close to Qatar, the latter alleged that its claims to sovereignty were predicated on the premise that priority was to be accorded to Qatar’s original title to the disputed islands; and the fact that the principle of proximity and territorial unity applied.69 In reply, Bahrain claimed that proximity, adjacency, and contiguity had no role to play in disputed territory.70 While the latter claimed unchallenged effective possession and state control for two centuries,71 the ratio of the Court’s decision was located firmly in a decision adopted by an official of the British government in July 1939. By virtue of this “internal decision,” the Hawar Islands were attributed to Bahrain. The Court held that this decision was valid and binding on the two parties even if it did not constitute an arbitral award between the parties.72 Once it had found that it was valid and binding on the parties, the Court declined to examine any other root of title. In other words, the various other alleged bases of title, including original title, effective occupation and control,73 and 65 66 67

68 69 70 71 72 73

Id. at 121. Id. Id. at 121–22; see Kaikobad, The Quality of Justice: Excès de Pouvoir in the Adjudication and Arbitration of Territorial and Boundary Disputes, in The Reality of International Law: Essays in Honour of Ian Brownlie, 293, 315–16 (Goodwin-Gill & Talmon eds., 1999) (on whether this constituted excès de pouvoir and nullified the award or relevant part thereof). Qatar v. Bahr., supra note 45, at 40. Id. at 70, 74–75 (to be sure it also relied on state activity). Id. Id. at 71. See generally id. at 77–85. Id. at 85.

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proximity had no further legal relevance insofar as the 1939 decision was both dispositive and binding on the parties. The same reasoning is evident in the matter of Janan Island which Qatar claimed appertained to it on the ground that any island which fell partially within a 3–mile limit drawn from the lowwater line along the mainland enjoyed “the benefit of the regime applicable to islands located wholly within that 3–mile limit.”74 The Court, depending on the 1939 internal decision as interpreted by the British government in 1947, ruled that Janan was not within the Hawar group of islands and hence fell under the sovereignty of Qatar, and importantly the basis of this was not proximity or the 3–mile rule as Qatar had argued but simply because the 1939–1947 documentation allocated Janan to Qatar.75 There is no gainsaying that had the situation on the ground not been consistent with the “internal decision” of 1939 and had Bahrain therefore not been in possession and control of the Hawar Islands, then the Court would have been loathe to grant the 1939 decision dispositive status, and would then have scrutinized other vestitive facts and roots of title; but that of course was not the case. What is nonetheless true is that where the Court was not willing to occupy its time examining roots of title consistent with ancient original title and the like once the internal decision was found to be dispositive, it would, a fortiori, have been even less interested in considering evidence of title based in contiguity. Nor can the fact be ignored that the Court ascribed no presumptions in favor of Qatar notwithstanding the fact that the Hawar Islands are located within the twelve mile territorial seas of Qatar. It remains now to examine the precise conditions in which the notion of contiguity can play a part with respect to islands. In this context, there are four rules which are relevant to this enquiry. 1. Assimilation and Integral to the Coastline Rule The first ground on which a state may succeed in claiming title to islands on the basis of adjacency is where the islands in question effectively form part of the coastline. As such, these islands are appendages of the mainland off which they lie. One of the earliest trends in terms of judicial practice emerges from the judgment on the matter by Sir William Scott (later Lord Stowell) in the case of the seizure of the Spanish vessel Anna in 1805.76 Here the question was whether or not the seizure by Minerva, a British privateer, of Anna had

74 75 76

Id. at 86. Id. at 90–91. Cf. Qatar v. Bahr., supra note 45 at 245–47. 5 C. Rob. 373 (1805); see also O’Connell, The International Law of the Sea, Vol. II 185–86 (1984); Lawrence, supra note 6, at 143; Oppenheim/Lauterpacht, supra note 6, at 565–66; Schwarzenberger, supra note 64, at 337.

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been effected within U.S. territory. The seizure took place more than three nautical miles from the mainland but within a league of “a number of little mud islands composed of earth and trees,” which as Sir William Scott presiding over the case in the Court of Admiralty, put it, created “a form of portico to the mainland.”77 It is the case that reliance was also placed on questions of U.S. defense interests as a factor in claiming title, but that aspect need not be discussed further, not least because the point here is that Anna, La Porte is now regarded as a seminal case for the rule that islands, where they are so close to the mainland or coastline that they effectively constitute part of the land domain, appertain to the coastal state. This portico principle was useful in terms of state practice as well as judicial practice and hence over time began to command attention in courts and chancelleries of Europe and the United States. Thus, Anglo-American state practice went on to develop the notion of an “exterior coastline,”78 and it was the application of the “principle laid down by Lord Stowell in the case of the Anna” by the Law Officers of the Crown in 1869 which was finally instrumental in ending the long-standing dispute between Great Britain and Spain over the Cuban Cays matter.79 It was similarly commented approvingly in Secretary of State for India vs. Sri Raja Chellikani Rama Rao;80 and in The Dusseldorf,81 the British Prize Court affirmed that the place of capture of the German vessel was in Norwegian territorial waters where the mainland was measured from a belt of islands adjacent to the coast.82 One of the islands, Buholmen, was about 300 hundred yards or so long and “large enough to be part of the mainland.”83 “That, again,” the president, Lord Sterndale, held, “I prefer to leave over for decision when it becomes necessary to decide it, but I cannot see my way to say that two pieces of land which are not disconnected from the mainland at low water, and not separated in any way, are not part of the mainland.”84

77 78

79 80

81 82 83 84

C. Rob., supra note 76, at 385c. See Moore, Digest of International Law, Vol. I 711 (1906); Herbert A. Smith, Great Britain and the Law of Nations, Vol. 2(i) 221–24; see also Jayewardene, supra note 27, at 45. See Smith, supra note 78, at 240; see also O’Connell, supra note 76, at 186–91. Secretary of State for India v. Sri Raja Chellikani Rama Rao, 32 T.L.R. 652, 654 (1916) (it must be noted however that this did not involve issues of competing sovereignty but of disputed ownership of islands lying in the mouth of the Godaveri River, that is private or public (Crown) ownership). L.R. 245 (1919). Id. at 246–47. Id. at 247. Id.

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However, in more modern times, it is the Anglo Norwegian Fisheries case85 which is particularly relevant. To be sure, this case was not concerned with contested islands; the parties, Norway and the United Kingdom, were in dispute regarding the maritime spaces between these islands. Even so the approach of the International Court of Justice was consistent with the position that the close dependency of land and water imparts some territorial rights to the coastal state. In the course of its judgment in the matter of the validity of the straight baselines system, and the consequential enclosure of large areas of maritime space close to the coast, the Court took into account, inter alia, “the more or less close relationship existing between certain sea areas and land formations which divide or surround them;” and “certain economic interests peculiar to the region, the reality and importance of which are clearly evidenced by long usage.”86 Significantly, the Court observed: The Court found itself obliged to decide whether the relevant low-water mark is that of the mainland or of the “skjærgaard.” Since the mainland is bordered in its western sector by the “skjærgaard,” which constitutes a whole with the mainland, it is the outer line of the “skjærgaard” which must be taken into account in delimiting the belt of Norwegian territorial waters. This solution is dictated by geographic realities . . . Where a coast is deeply indented and cut into, as is that of Eastern Finnmark, or where it is bordered by an archipelago such as the “skjærgaard” along the western sector of the coast here in question, the base-line becomes independent of the low-water mark, and can only be determined by means of a geometrical construction. Such a coast, viewed as a whole, calls for the application of a different method; that is, the method of base-lines which, within reasonable limits, may depart from the physical line of the coast.87

In short, the Court recognizes the existence of symbiotic relations between the land and the sea, and it follows that within strict parameters if waters can be attributed by reason of their close relations with land, the opposite holds good as well in terms of international law. Given this fact, it is useful also to observe that the criteria for straight baselines stipulated first in Article 4 of the 1958 Convention on the Territorial Sea and Contiguous Zone88 and subsequently in Article 7 of the 1982 Convention were inspired directly by and indeed used verbatim from the Anglo-Norwegian Fisheries case.

85 86 87

88

Anglo-Norwegian Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116. Id. at 133. Id. at 128–29 (emphasis added); See Jayewardene, supra note 27, at 116–23 (discussing effects on the regime of archipelagos); Bowett, supra note 29, at 78–81; see also El Salvador v. Honduras, 1992 I.C.J. 351, 559 (the only island to which El Salvador had not filed a claim was Isla Zacate Grande, which is an island but effectively integrated with and part of the coastline). UN Doc. A/Conf. 13/L.52–L.55.

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A degree of sophistication was added by the Supreme Court of the United States when it sought to identify some criteria in this regard. Thus in the Louisiana Boundary case,89 when it was required to evaluate the validity of the maritime delimitation exercise or the inland water line of that state, the Supreme Court declined to delimit a line which was wholly a reflection of the exigencies of the Louisiana ambulatory coastline.90 The Supreme Court, following US vs. California,91 held that the inland waters line would be governed by the principles of the Geneva Convention on Territorial Waters of 1958.92 In more specific terms, the Supreme Court discussed the question of the boundary lying seaward of the many fringing islands off the Louisiana coast. In this context it held that the question whether a particular island could to be treated as part of the mainland would depend on such features such as (i) its size; (ii) its distance from the shore on the mainland; (iii) the depth; and (iv) utility of the intervening waters; (v) the shape of the island; (vi) its relationship with and (vii) configuration or curvature of the coast.93 It went to hold that much of the Louisiana coast on or near the Mississippi River Delta is of the same general consistency as the western shores of the Lake Pelto-Terrebonne Bay-Timbalier Bay complex and that some of the islands may be so linked to the mainland as realistically be assimilated to it.94 However, it also cautioned by holding that every Mississippi River Delta mud-lump or other insular formation was not necessarily a part of the coast.95 These criteria were then adopted in the follow-up, namely United States vs. Louisiana (Special Master).96 Furthermore, in Georgia vs. South Carolina,97 the same court was faced with arguments regarding claims to various disputed islands and features in the Savannah boundary river between the two states, one of which were concerned with the Barnwell Islands. According to the Beaufort Treaty, all the islands in the Savannah River were attributed to Georgia on the north side. Apart from the prescriptive element upon which the Supreme Court heavily relied, it was also noted that while the Barnwell islands were separated from Georgia by the wide and deep waters of the Savannah, they were separated 89 90 91 92 93 94 95 96

97

United States v. Louisiana, 394 U.S. 11 (1969). Id. at 34–35. United States v. California, 381 U.S. 139 (1965). United States v. Louisiana, supra note 89, at 16. Id. at 66. Id. at 65–66. Id.; Anglo-Norwegian Fisheries Case, supra note 85, at 66. 59 I.L.R. 249, 286–89; see Raptis v. South Australia, 69 I.L.R. 32, 45 (where it was noted by Gibbs, J. of the Australian High Court that Kangaroo Island was not part of the mainland; and that it was not conformable with the Louisiana Islands where they were separated by narrow shifting sandy bars and rightly regarded as part of the mainland). Georgia v. South Carolina, 497 U.S. 376 (1990).

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from South Carolina “only by streams so shallow that they were described as ‘somehow dry.’”98 Before leaving this aspect of the matter, the central point which needs to be stressed here is that that in this assessment of the rules of law, the coastal state will not have the benefit of any presumptions in favor of title. Thus the coastal state will be required to prove by way of submission of evidence to the effect that the disputed island or islands are appendages of or realistically assimilated to the coastline. This can be done by way of various items of evidence, including historical, economic, political, social, traditional, and geographical links with the islands. In particular, evidence ranging from local repute, to geological reports, to the extension, application, and enforcement of its laws to the islands, traditional activities such as fishing, rescue and refuge, and to the shallowness of the intervening waters will all play in establishing assimilation with the coastline. 2. The Natural Unity of Islands Rule The second rule involves the notion of an organic unity of islands.99 Although closely related to the rule of fringing islands and assimilation to the coastline, the unity of islands needs discretely to be examined. The main difference between this legal category and the rule discussed immediately above, is that whereas adjacency, distance, contiguity, and proximity to the mainland or islands, are all central to the latter, in the natural unity of islands theory, these characteristics are not vital elements, for it is a fact that islands in a natural grouping may well be dispersed over a vast area, as in the case of archipelagos. Several rules and propositions of law are noteworthy in this context, but before discussing them, it is important to note that each one of them is interlinked to the others. First, where islands form an integral whole or an organic unity, the law acknowledges the need in principle to maintain that unity as an archipelagic entity. The second proposition expresses the same rule in negative terms, namely that the law would in principle stipulate that islands forming a natural unity ought not in principle to be separated and placed under distinct jurisdictions and sovereignty or both. It follows therefore that the law and facts should be interpreted in such a way that an island (or islands) is not excised from the group to which it belongs. This means that the law will prima facie be applied in such a way so that the natural unity of the island group is not severed 98

99

Id. at 327–28. See, United States v. Louisiana (Ala. Miss. Boundary Case), 470 U.S. 93 (1985) (shallowness as a criterion with respect to Mississippi Sound); see also United States v. Maine, 475 U.S. 89 (shallowness as a criterion with respect to Nantucket Sound). Cf. Reed, Shore and Sea Boundaries, Vol. III Part one (2000) (Note however that these were problems of maritime delimitation as opposed to disputed islands). See Fitzmaurice, supra note 41, at 73–75; See also Schwarzenberger, supra note 64, at 336–37.

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but fully maintained. The fundamental premise here is that this proposition applies to all islands, large, small or minute, with the caveat that de minimis non curat lex maxim also applies. It is not therefore difficult to appreciate that it is this notion of unity of islands and the intervening waters thereof which informs the legal definition of an archipelago,100 a definition to be found in Article 46, paragraph (b) of UNCLOS, to wit: [An] archipelago means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical economic and political entity, or which historically have been regarded as such.

It is also manifest in the notion of straight archipelagic baselines allowed archipelagic states by virtue of Article 47. The provisions of this article permit the archipelagic state to draw, under certain strict conditions and limitations, baselines which join together the outermost points of the outermost islands and drying reefs and by doing so envelop the entire archipelago. The third proposition flows from the above, which is that where a state can establish conclusively by way of evidence that an island disputed between two parties is part of an archipelago undisputedly appertaining to one of those two disputant parties, then no matter how big or small that disputed island may be, and no matter how far distant the islands may be from each other, then that disputed island may lawfully be attributed to the island group to which it belongs, and accordingly its sovereignty will be determined by reference to the sovereign title-holder of the island group. The fourth proposition of law here is based on categorizing islands, that is describing certain islands as major or principal insular features and others as minor or ancillary islands, and the rule here is that the political affiliations of minor islands normally follow those of the major island or islands. Both the Aves Island 101 and Palmas Island 102 arbitrations provide evidence of the application

100

101

102

See Jayewardene, supra note 27, at 135–39 (whether an archipelago is a body of water studded by islands); See also at 108–09 (a group of islands surrounded by waters). Jayewardene, supra note 27, at 112–13 (Eventually, it was decided to settle on the compromise term “groups of islands,” and parts thereof; and “interconnecting waters and other natural features;” hence combining the two concepts. Interestingly, the political affiliations and sovereignty over islands caused less dispute or controversy than the problems arising from an enclosure of the water body, now known as archipelagic waters). See Moore, supra note 33, at 5038 (1898). Importantly, this is a case of a minor island linked closely to the mainland, as opposed to a major island. Island of Palmas (Neth. v. U.S.), 22 Am. J. Int’l L. 855 (Perm. Ct. Arb. 1928). See Minquiers and Ecrehos 1953 I.C.J. 47, 83, 101–02 (Basdevant & Carneiro, J., separate opinions); Fitzmaurice, supra note 41, at 73–75; O’Connell, supra note 6, at 482.

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of this rule, but the latter provides a qualification of effective control as seen in the quotation below: As regards groups of islands, it is possible that a group may under certain circumstances be regarded as in law a unit, and that the fate of the principal part may involve the rest. Here, however, we must distinguish between, on the one hand, the act of first taking possession, which can hardly extend to every portion of territory, and, on the other hand, the display of sovereignty as a continuous and prolonged manifestation which must make itself felt through the whole territory.103

In other words, while the fate or sovereign alignment of the minor island would be decided by the fate of the major island, the territorial state would still have to show contiguous and prolonged manifestation throughout the island group. On this view of the matter, such a high threshold, for one thing, is not warranted in law if the threshold provided by the umpire, Judge Huber, is to be taken literally; and for another it would defeat the whole purpose of the major-minor islands proposition. The point is that the natural unity of islands will/must allow a state to claim minor insular features provided the latter are part of a natural whole over which principal islands or major areas of water that claimant state exercises control or manifests sovereignty, and it thus follows that it is not necessary to show such manifestation “through[out] the whole territory.” As far as nomenclature is concerned, it is the case that despite variations therein, as for example the use of the notion of an appendage or a dependency of the principal island, the rule itself is sans variation. In El Salvador vs. Honduras, discussed below, the Chamber of the Court referred to Meanguerita as an appendage of Meanguera and by doing so, attributed it to El Salvador.104 One of the legal arguments relied upon by Canada to justify its possession of Machias Seal Island and North Rock in the Bay of Fundy against the United States, the other disputant/claimant state, is that it is a natural appendage of Grand Manan Island lying between Nova Scotia/New Brunswick on the Canadian side and Maine on the United States on the other.105 The fifth premise of law is an aspect of a rule scrutinized in a different work106 and is predicated on the fact that there is a rebuttable presumption to the effect that an island group ought not to be divided in cases of boundary delimitation, that is, where the tribunal has been charged with the task of attributing one or more islands to two disputing states, the latter is precluded from dividing the

103 104 105

106

Island of Palmas, supra note 102, at 855. See Schwarzenberger, supra note 64, at 336. Land, Island, and Maritime Frontier, supra note 36, at 351. See David H. Gray, Canada’s Unresolved Maritime Boundaries, in IBRU Boundary and Security Bulletin 61, 67 (1997). Note that Gray refers to “one legal opinion” as his source for this argument but fails to identify the author thereof. See Kaikobad, supra note 67, at 315–18.

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island groups unless it cannot in law or fact be regarded as one insular entity; or where the tribunal has not been precluded from dividing the island group.107 It is clear that there is a common theme in all these five rules, and that theme is consistent with the need for maintaining natural archipelagic unity, and accordingly it comes as no surprise that judicial practice appears to have devised a presumption or proposition predicated in maintaining this natural unity of islands. In more specific terms, some tribunals have been predisposed to settling issues of title by way of creating presumptions in favor of unity or by allocating islands by reference to notions of appendages, dependencies, and major and minor islands. Thus in the Minquiers and Ecrehos case,108 the French Republic argued that the small archipelago lying off the western coast of Cotentin was in ancient geographical terms a dismemberment of the mainland, but that the archipelago which had formed in the Channel was in fact one composite whole. It was asserted that France had acquired and incorporated this archipelago as a whole in the Duchy of Normandy, but that by virtue of the Treaty of 1259, the natural unity of this archipelago was “rent asunder,” with the Jersey Islands going to the English King and the Chausey to the King of France. However, the Minquiers and Ecrehos remained part of the French Chausey, the argument being that these islets, being minor insular features, their affiliations lay with those of the principal islands.109 The British position was that these two island groups being a part of the Channel Islands had always remained in English hands, and all that the English had lost in 1204 were the Anglo-Norman possessions on the mainland or Continental Normandy. It asserted that all the documents showed, including the Royal Charters of 1200 and 1203, and a Papal Bull of 1500 that the Channel Islands were considered as an entity, physically distinct from the mainland; and accordingly the fact that the disputed islands were not mentioned by name in these and other instruments did not mean that they lay outside this entity.110 In response, the International Court of Justice took a cautious approach. It accepted that insofar as all of continental Normandy and all of the Channel Islands were held by the English king between 1066 and 1204, “there appears to be a strong presumption in favor of this British view.”111 In other words, the Court believed that Minquiers and Ecrehos, being part of the archipelago, could be presumed to have remained with the English as opposed to being transferred to continental Normandy now under the French king. Importantly, 107 108 109 110 111

Id. at 317. Minquiers and Ecrehos, 1953 I.C.J. 47. Id. at 97–100 (Levi Carneiro, J., separate opinion). Id. at 55. Id.

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however, these facts were not regarded as being dispositive; the Court felt that no definitive conclusion could be drawn by such indirect presumptions “since this question must ultimately depend on the evidence which relates to the possession of these groups.”112 However, it was Judge Levi Carneiro who, in his separate opinion, was relatively more forceful and held that the dismemberment of the Chausey from archipelago had created a new group of islands with its own natural unity and that the disputed islets were part of this Anglo-Norman archipelago.113 He took the view that the burden of proving that the Ecrehos and Minquiers were no longer part of this archipelago and that historical facts had detached them from the natural unity of the islands “was on France,” but that it had not discharged that burden.114 The key to Judge Carneiro’s appreciation lies in the following passage: Just as a state which has occupied the coast or an important part of an island is deemed to have occupied the island as a whole, the occupation of the principal islands of an archipelago must also be deemed to include the occupation of islets and rocks in the same archipelago, which have not been actually occupied by another.115

Furthermore, it is also possible that there exists a presumption in favor of unity where the major and minor islands are geographically close to each other. Two recent cases before the Court bear this out. In Malaysia vs. Singapore (Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge),116 the government of Singapore based its claim to Middle Rocks primarily on the fact that they were in fact minor dependencies of Pedra Branca/Palau Batu Puteh and relied on the major-minor islands rule referred to above in the Palmas Island case.117 It was claimed that sovereignty over this feature and South Ledge “goes together with sovereignty over Pedra Branca . . .” and that whoever owned Pedra Branca owned Middle Rocks.118 Part of Singapore’s contention was based on geographical and geomorphological considerations.119 It also claimed secondarily to have carried out acts of sovereignty over the Rocks.120 The Malaysian government contended that there was no natural unity between Middle Rocks, South Ledge, and Pedra

112 113 114 115 116

117 118 119 120

Id. Id. at 98–99. Id. at 99. Id. at 98. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, supra note 49. Id., para. 280. Id., para. 279. Id., para. 279, 282. Id., para. 279, 283.

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Branca in historical and geomorphological terms; that they were even devoid of a collective title. Hence, not unlike Pedra Branca, Middle Rocks appertained to the Sultanate of Jahore.121 The Court held: Since Middle Rocks should be understood to have had the same legal status as Pedra Branca/Pulau Batu Puteh as far as the ancient original title held by the Sultan of Johor was concerned, and since the particular circumstances which have come to effect the passing of title to Pedra Branca/Pulau Batu Puteh to Singapore do not apply to this maritime feature, original title to Middle Rocks should remain with Malaysia as the successor to the Sultan of Johor, unless proven otherwise, which the Court finds Singapore has not done.122

It is clear, by way of analysis, that the Court was persuaded by the contention that these islands and insular features were in fact one identifiable group and that ancient original title vested with the Sultan of Johor. However, when Singapore acquired Pedra Branca, the unity was broken but only as far as that island was concerned, and accordingly the other insular features remained unaffected both geographically and legally. The interesting fact is that the Court created a rebuttable presumption of sovereignty in favor of Malaysia when it held that original title to Middle Rocks should remain with Malaysia as the successor to the Sultan of Johor, unless proven otherwise, and that Singapore had been unable to rebut this assumption. There is no gainsaying that the Court here came close to endorsing the rebuttable presumption rule based in contiguity. The difference, however, is that whereas the latter rebuttable presumption is based in a distance criterion, the presumption in the Pedra Branca case was based in proven sovereignty over the island group in favor of Malaysia. Even more instructive is the position adopted with respect to Meanguera and the much smaller, Meanguerita by the Chamber of the International Court of Justice in El Salvador vs. Honduras.123 These two islands, the Chamber observed, had been treated by both disputant parties “as constituting a single insular entity; neither Party in its final submissions, claimed a separate treatment for each of the two islands.”124 Analyzing the claims of the parties, the Chamber held that El Salvador had made out the better claim with respect to Meanguera. As far as Meanguerita was concerned, the Chamber held, “The small size of Meanguerita, its contiguity to the larger island, and the fact that it is uninhabited, allow its characterization as a ‘dependency’ of Meanguera in the sense that the Minquiers group was claimed to be a ‘dependency’ of the Channel Islands.”125 It observed that it did “not consider it possible, in the absence of evidence on the point, that 121 122 123 124 125

Id., para. 284. Id., para. 290. Land, Island, and Maritime Frontier, supra note 36. Id. at 570. Id.

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the legal position of that island could have been other than identical with that of Meanguera.”126 In other words, the fate of the island was determined by the fact that Meanguerita was, as it noted, an appendage of Meanguera.127 By way of abundant caution, and in keeping with the point made above in the context of the appendages rule, while the attribution may be determined by reference to the natural unity of the island, there is no benefit of presumption as far as the unity of the archipelago is concerned; and accordingly it follows that the state claiming unity must provide evidence to that effect. 3. The Rule Regarding the Accretion and Creation of Islands The third rule which may create title on the basis of contiguity and proximity is concerned with the natural action of rivers and maritime areas and where the former meets the latter. The position taken by scholars and judges is that the coastal state has title to territory over islands which are formed by the action of the body of water, tidal or riverain.128 Thus where islands appear by way of the deposition of alluvium at the mouth of the river, the coastal state is entitled to claim sovereignty provided it is within the territorial sea of that state. The same rule applies with respect to islands appearing in the territorial sea by way of volcanic activity and the like.129 In Sri Raja Chellikani Rama Rao, the question of ownership of islands which had emerged at the mouth of the Godaveri River off the western littoral of the Bay of Bengal in British India was in issue. The question of law was whether the ownership of the islands, that is the dominium, as opposed to imperium, was vested in the British Crown or the disputant zemindars or large land-owners of Madras. The Judicial Committee of the Privy Council declared that such dominium vested in the Crown. It held, “The Crown is the owner, and the owner in property, of islands arising in the sea within the territorial limits of the Indian Empire.”130 Similarly, in Anna, La Porte, the little mud islands the elements of which had been derived immediately from the territory off the mainland by way of earth and trees, were adjudged U.S. territory, the point being that, as the Court of Admiralty observed, “Whether they are composed

126 127

128

129 130

Id. at 579 (emphasis added). Id. Cf. id. at 709–11 (Torres Bernárdez, J., separate opinion) (there can (depending of course on the facts of the case) be tension in the application of the two sets of principles and rules of law, that is those dealing with effective control and those with natural unity of islands). O’Connell, supra note 6, at 428–29; Lindsey, supra note 6, at 7–8; Cukwurah, supra note 7 at 64–65. See Bowett, supra note 29, at 49, n. 7. Supra note 80, at 654.

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of earth or solid rock will not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil.”131 This rule is very closely aligned with, or akin to, a rule of a similar kind regarding the rule of disposition of, which, for want of a better term, may be referred to as “after-emerging” islands in boundary rivers.132 Islands of this kind are those which emerge after riparian states have decided or determined the alignment within a boundary river. States have been known to stipulate in treaties that islands formed on one side or the other of the thalweg or medium filum aquae will appertain to the state on the side of which they have emerged. Jayewardene and Bowett both list a number of treaties to this effect, including Brazil and Paraguay (1927); Austria and Westphalia (1811); Austria and Russia (1829); and Argentina and Uruguay (1973).133 It would follow that to determine the boundary by plotting either the thalweg or the medium filum aquae aequo is to determine the political alignment of the island. Of course, by way of abundant caution, it needs to be noted that states may in their freedom decide to allocate after-emerging islands to one state or both; or indeed not mention it at all, without reference to the alignment in the boundary river, and this is especially the case where the boundary follows one of the banks of a river. It is the case that states encounter problems when the thalweg changes its course which in turn affects the allocation of islands, as for example those encountered in Georgia vs. South Carolina and Hazlett vs. Presnell are not germane to this study and need not be discussed any further. 4. Relative or Comparative Proximity Rule Whereas, finally, the three rules discussed above are fairly recognized rules of law, the fourth and last one now to be discussed is controversial. It is perhaps more a proposition than a norm of international law which is as follows: (i) where the claims of the two parties are evenly matched either in terms of evidence produced or where they are equally lacking in that department; and (ii) where there are no countervailing considerations consistent with the various bases of rebuttal discussed above, the island will be allocated to the state closer to the mainland or another one of its recognized islands in terms of comparative distance or proximity. Cogent arguments exist on both sides, and thus, whether or not such a proposition or premise of law is acceptable or admissible in law needs now to be examined.

131 132 133

C. Rob., supra note 76 at 385d. Cukwurah, supra note 7, at 64–66. See Jayewardene, supra note 27, at 206–08, 232, n.102; Bowett, supra note 29, at 64–65.

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Taking the view that such a proposition does not exist in law, the first argument is that to admit that in the absence of any evidence or where items of evidence of the disputing parties are evenly matched, resort may be had to the contiguity or proximity principle, is to negate the point made above in the preceding paragraphs, namely that there is no prima facie presumption in favor of title on the basis of simple contiguity or proximity without more. The essence of the point is that being what it is in international law and given its ramifications, title to territory must be based on solid legal considerations as opposed to geographical criteria subjectively interpreted. Secondly, to grant title to one of the disputing states despite the lack of evidence of state authority with respect to a contiguous or proximate insular feature is to reward negligence and that would be in direct contradiction of the common principles and rules of international law. Thirdly, there ought not to be any confusion between contiguity which is predicated in creating a geographic unity and proximity of coasts one against the other. There is a big difference between being near and being nearer; contiguity is an absolute reference point; and choosing to bestow title on the basis of comparative proximity is to convert the absolute into a relative value. As far as the argumentation in favor of adopting this as a fourth basis for a finding in favor of title, the first point here is that while it may appear to be rewarding negligence in some cases, determining title by proximity can also appear to be quite the opposite in others: it can also be seen as rewarding the commitment shown by a state, that is where there is a demonstration by a state of sovereign activity, no matter how weak it may be. Thus where the evidence is equally strong, albeit relatively so, the allocation of title in favor of the party closer to the coast or an island thereof is not necessarily so outlandish as it might appear to be. Secondly, there does appear to be some limited even if equivocal judicial practice consistent with this premise of law, even if it is arguably not reflective of a recognized rule of law, to wit, that islands in the territorial sea, whether the latter are three or six or twelve miles in breadth, appertain to the coastal state because they are closer to one party than the other. Thus in the Minquiers and Ecrehos case, Judge Carneiro observed in his separate opinion: As is stated by the French government itself [in its] . . . Oral Arguments . . ., the Minquiers and the Ecrehos are closer to Jersey than to the [French] mainland. They must be regarded as attached to Jersey rather than to the mainland. They must be attached to the archipelago. These islets were, and continue to be, a part of its natural unity. It is for this reason that they remained English, as did the archipelago itself.134

134

Supra note 108, at 101–02. See Schwarzenberger, supra note 64, at 337.

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Without putting too fine a point to it, there appears to be some reason to believe that it was the same factor motivating the arbitration tribunal in the Eritrea vs. Yemen case.135 As seen above, it was the government of Yemen which had argued in favor of the principle of natural or geographical unity of the islands and the mainland. Arbitral jurisprudence, it claimed, showed that once the sovereignty of an entity or natural unity as a whole had been shown to exist, then, in the absence of any evidence to the contrary, that sovereignty could be deemed to extend to all parts of that entity or unity.136 For Yemen, the unity was that of the islands and the Yemeni mainland, and it was in relation particularly to the Hanish Group, which for that party included the Haycocks and Mohabbakahs, but excluded the two northern islands, Jabal al-Tayr and the Zubayr group.137 Significantly, Yemen also contended that the islands appertained to it on the basis of ancient original title.138 As far as the Mohabbakahs were concerned, it bears note that the tribunal was not convinced with Yemen’s claim of original historic title. Nor was it favorably inclined to decide Eritrea’s argument that it had inherited its title from Italy. The only relevant legal dispositive fact for the tribunal seemed to be that in the absence of historic title in Yemen, these islands, except for High Island,139 because within twelve nautical miles of the Eritrean coastline, were to be regarded as Eritrean.140 Although it did not spell it out, the fact is that these islands are closer to the Eritrean than the Yemeni mainland. The Haycock group, the tribunal went on to hold, were administered from the African coast, which fact benefited Eritrea, but it acknowledged that on either side of the Red Sea, sovereignty vested in the Ottoman Empire, and hence “there was a feeling, based on considerations of security as well as convenience, that islands off a particular coast, would, failing a clearly established title to the contrary, be under the jurisdiction of the nearest coastal authority.”141 Similarly, Judge Torres Bernárdez, who voted against the majority judgment in El Salvador vs. Honduras, was keen to emphasize the fact that the major/minor islands rule regarding the disposition or attribution thereof and the doctrines of appendage and distance and proximity ought not to have played any part in the determination of the Meanguerita issue. Yet, he observed: “Meanguerita is indeed located next to Meanguera, but this is in casu no reason to avoid deter-

135 136 137 138 139 140 141

Supra note 47. Id. at 17. Id. at 120. Id. at 37–38, 115–17. Id. at 122 (this feature is just short of 13 nautical miles from the Eritrean coastline). Id. at 123. Id. at 125.

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mining ‘sovereignty’ over Meanguerita on its own merits.”142 He held that both effective state activity and conduct over Meanguerita were simply missing and that the determining criterion ought simply to have been the uti possidetis juris of 1821 which would have left the island to Honduras.143 Furthermore, in this context, the judgment of the same court in Nicaragua vs. Honduras144 is more compelling. Here, the insular possessions in dispute centered on four cays, namely Bobel, Savannah, Port Royal, and South. While Honduras claimed sovereignty essentially and fundamentally on the basis of the uti possidetis juris principle, the Nicaraguan contention was that Lilliputian cays, some nameless, did not in fact engage the attention of the King of Spain and hence there could not have been any [express] attribution by him of these very small features which lacked any economic or strategic significance.145 Nicaragua went on to contend that in the absence of such evidence, the remaining consideration was the location of the islets in relation to other territories of the states concerned. While this principle of geographical proximity operated to the benefit of the Captaincy-General of Guatemala because it exercised direct jurisdiction over the Mosquito Coast at the time of independence of 1821, Nicaragua stressed that in any event, the disputed cays were more proximate to Nicaragua’s Edinburgh Cay than any Honduran territory.146 In short, it had “original title over them under the principle of adjacency.”147 The Court took the position that the uti possidetis juris did not in fact offer great legal help for determining sovereignty and turned to evidence of postcolonial sovereign activity, the result of which examination was that it found in favor of Honduras in respect to Bobel, Savannah, Port Royal, and South, having made out the better claim.148 The point of interest here is that it ruled categorically that proximity as such is not necessarily determinative of legal title.149 Even so, it went to hold: Nicaragua’s argument that the islands in dispute are closer to Edinburgh Cay, which belongs to Nicaragua, cannot therefore be accepted. While the Court does not rely on adjacency in reaching its findings, it observes that, in any event, the islands in dispute appear to be in fact closer to the coast of Honduras than to the coast of Nicaragua.150

142 143 144 145 146 147 148 149 150

Land, Island, and Maritime Frontier, supra note 36, at 710 (emphasis original). See generally id. at 709–10. Supra note 57. Id., para. 150. Id., para. 150. Id., para. 75. Id., para. 168–227. Id., para. 161. Id., para. 164.

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It is idle to speculate, but it does seem that the Court wanted to put on record the fact that while it could not be used as the central definitive criterion of law, the comparative proximity rule did qualify for some weight even if it that weight was secondary and corroborative. Finally, it is useful to register a word of caution. Distance can be relative in terms of the reference points of calculations and hence quite unhelpful; and more importantly, as noted in earlier parts of this work, this notion will be superseded by other roots of title. It has been noted above that in Qatar vs. Bahrain151 the Court was asked to determine, inter alia, sovereignty over Janan Island, an extremely small islet which is closer to Qatar than Bahrain but only if the distance between Janan and Qatar is compared to the distance between the nearest point on the main island of Bahrain and Janan. However, Janan is further away from Qatar if the distance is measured by reference to Bahrain’s Hawar Islands. It is the case that in effect, the bases of both parties claims was the contention that Janan and Hadd Janan were in fact appendages of Hawar, although Bahrain also relied on possession, including the beaconing of Janan.152 Interestingly, the Court decided that Janan appertained to Qatar, the basis of which finding was primarily the fact that the British internal decision of 1939 as interpreted and adjusted in 1949 by that government had not regarded the islet of Janan as being included within the Hawar group of islands and that it appertained to Qatar.153 The Court then saw no reason to examine the strength of the roots of title alleged by either by Qatar or by Bahrain. Thirdly, the reality of law is such that a tribunal empowered to arbitrate between the parties or judge their claims will have no choice but to find a legal basis for a decision for the case. The law does not permit the tribunal to fail to exercise its jurisdiction; that is not an option before it where faced with equally compelling law and facts or lack of the same. In these kinds of cases, it will have to select some appropriate criteria one of which may well be contiguity. As Bowett noted: In practice, in a dispute between two claimant states, title will be recognized in the claimant state which shows the better claim, for a tribunal is unlikely to decide that neither is sovereign and that the island is terra nullius.154

If the above is correct and it is believed that it is, and if there can be no non liquet of the law, the most legally optimal way forward is to propose the comparative distance rule, with the caveat that it would apply in the narrowest and restrictive of circumstances, that is, where there is a conspicuous lack of 151 152 153 154

Qatar v. Bahr., supra note 45. Supra note 51, at 85–86. Id. at 90–91. Supra note 45, at 50. (emphasis original).

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substantive evidence on both sides, where the disputing parties find themselves in difficulties because they are incapable of substantiating their assertions, or where the evidence is devoid of weight and value.

VI. Application of The Law: The Dokdo Islands Controversy In the light of the above discussion, some light can now be shed on the problem of the Dokdo Islands by applying the rules of law analyzed above. In the first place, the disputed islands come within the purview of this discussion insofar as they are both extremely small and uninhabited save for the Korean police presence there. Of course, there is also the fact that Dokdo has been regarded by some geographers as rocks as opposed to islands; but this debate falls outside the focus of attention and scope of this study and need not be discussed further. In the second place, it must be borne in mind that in order to demonstrate sovereignty over an insular feature, the claimant state will be required to establish title by way of evidence of any one or more bases or roots of title thereto; and while they will primarily be the recognized relevant principles of international law, namely discovery and effective occupation, cession, conquest and annexation,155 acquiescence, recognition, estoppel and prescription, and ancient original title, it is also possible and indeed highly likely that states will choose to rely on domestic legal and constitutional instruments. As the Chamber of the International Court of Justice observed in El Salvador vs. Honduras, “It should be recalled that when the principle of the uti possidetis juris is involved, the jus referred to is not international law but the constitutional or administrative law of the pre-independence sovereign, in this case Spanish colonial law . . .”156 Thirdly, the rule of a rebuttable presumption in favor of islands contiguous to the coastline is virtually of no benefit to the two disputant states for at least two reasons. First, the Dokdo islands do not lie within the territorial seas of either the Korean or Japanese mainland; or the territorial waters surrounding either the Korean island of Ulleungdo or the Japanese islands of Dogo and Dozen of the Oki-Shoto group and other outlying islands. Accordingly, even if there is a rule in favor of a presumption of sovereignty where the disputed island is in the territorial waters of the coastal state, and it is argued that there is no such rule, then that rule is inapplicable here. The second reason follows logically from this: insofar as no such presumption exists, both states would be

155

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Although now fully prohibited, many extant bases of title to territory of states are grounded on conquest, followed by annexation or cession. Land, Island, and Maritime Frontier, supra note 36, paras. 558–59. See also Nicar. v. Hond., supra note 57, paras. 160–61.

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expected to adduce evidence to the effect that title vests in one of them to the exclusion of the other, and consequently they would not be entitled to begin their cases on the basis of presumptions that the islands vested in them because of a principle of adjacency. Thus Korea would be expected, as would Japan, to establish title by one of the above-mentioned roots of title. It is the case that both Korea and Japan depend primarily on ancient historical title, and hence on the vestitive legal facts as roots of title. Fourthly, as far as the four rules outlined above are concerned, there is no reason to be detained by the first and third rules regarding insular features, where the first deals with islands so close to the coastline that the island is considered realistically forming part of the coastline, and where the third is concerned with the accretion of islands, that is where islands created by natural action of geographical forces, including volcanic activity and riverain accretion. Given that the nearest island on the Korean side is 49 miles away to the northwest; the nearest Korean coast is 130 miles or 216.8 kilometers to the west in Jukbyeon; and Japan’s Oki is 86 miles to the southeast, there is no chance of satisfying the contiguity and integrity with the coastline rule. In other words, attention must focus first on the natural unity of islands rule and secondly on the comparative proximity premise of law. As far as the first of these two rules are concerned, it is the case that if either Korea or Japan can establish by way of evidence that the Dokdo Islands are a natural part of either the Oki island group or the Ulleungdo archipelago of islands, rocks and islets, or that or that the two islets are indeed appendages to the two main islands of Ulleungdo or Oki, then the two will have gone some way forward in establishing sovereignty over Dokdo. If this is indeed the case, then it would appear logical for the governments of Japan and Korea to seek to attempt to establish this by way of two categories of evidence. The first category of evidence would be predicated on what may be termed as the surface unity of the islands, and to this effect evidence, which shows linkage and unity of the island as a group in terms of historical, political, administrative, economic, social, and family connections and intercourse, will be crucial for the claimant state. The evidence in this regard is worthy of careful evaluation and scrutiny. It falls into several categories the following of which are considered here: (i) oral tradition and repute; (ii) historical records and maps; (iii) state activity and instruments; and (iv) private activity. Before this evidence is examined, it will be useful to take note very briefly of the different names used for Dokdo over the years. According to Professor Kajimura, a Japanese scholar, the name Usando was in use at the time of Kings Sejong and Munjong, during 1418–1450 and 1450–1452; it was then Sambongdo before and after Songjong between 1470 and 1494; Kajido in King Chosen’s reign (1770–1800); then Sokto/Sokdo in the 1881 phase; and from 1906 the name of Tokdo or Dokdo was settled upon by the Korean

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government.157 Clearly, changes in the name have added to the confusion and therefore it is necessary to be reminded of the fact that the names used then do not necessarily refer to the same island by today’s nomenclature. Importantly, the names were switched by way of mistakes made by the German cartographer, Franz von Siebold (1796–1866), which were then compounded by other cartographers and gained currency in Japan. Accordingly, references to Takeshima in the late nineteenth century (see below) were to Ulleungdo and not to modern Dokdo.158 1. Oral Tradition and Repute The government of Korea strives to demonstrate that Dokdo has always been regarded as a dependency of Ulleungdo;159 and that the history, status, political relations, and local culture have always linked Dokdo with Ulleungdo, and hence with Korea. As a Japanese scholar, Professor Kajimura, has described the latter aspect, “The Korean side [has] consistently defined Takeshima/Tokdo as being attached to Ulleungdo or as its ‘brother’ island, while the Japanese side [have] consciously attempted to separate the two islands.”160 He points out that these ancient Japanese names signify unity as a pair. The ancient Japanese name for Ulleungdo was Takeshima or Isotakeshima which means Bamboo Island; and the ancient Japanese name Matsushima was given to Dokdo in 1618 which means Pine Tree Island: the two types of trees, that is pine and bamboo, “following Eastern fashion . . . always make a natural pair.”161 He adds, “But, the fact that the two are brother islands could exert an influence on the historical fact of being . . . inherent Korean territory.”162 Interestingly, other scholars also make filial associations. Thus, another leading Japanese scholar Professor Naito Seichu writes: “As long as Ulleungdo, then called Takeshima, was considered Korean, then Matsushima (present-day Takeshima), Ulleungdo’s sister island, is also Korean . . .”;163 and Shin Seok-ho, a Korean historian “argues that [the] two islands are in inseparably close relations, like mother and child.”164 157 158 159 160 161

162 163

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Heideki Kajimura, The Question of Takeshima/Dokdo, 28 Korea Observer 423, 440 (1997). See generally, id. at 440–41. Northeast Asian History Foundation, supra note 1, at 2. Kajimura, supra note 157, at 436. Id. at 437 (explaining that bamboo grows naturally on Ulleungdo; and that a still earlier name, Isotake, which means Shore Bamboo, is the genesis of the name Takeshima). For the date/year, see id. at 440. Id. at 437. Naito Seichu, Is Takeshima Japanese Indigenous Territory?, in A Fresh Look at the Dokdo Issue: Japanese Scholars Review Historical Facts 19, 31 (2006) Dae-song Hyun, The Dokdo/Takeshima Issue Its Origins and the Current Situation, in The Historical Perceptions of Korea and Japan: Its Origins and Points of Issues Concerning Dokdo/Takeshima, Yasunki Shrine, Comfort Women, and Textbooks 37, 45

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In addition to that, according to Professor Byeong-do Yi, another Korean historian, the very fact that there have been so many name changes verifies the fact that “Dokdo is ancillary to Ulleungdo.”165 He shows that Usan was a name which referred to Ulleungdo in early history “to which Dokdo belonged.” However, as Ulleungdo came to be called by names other than Usan, as for example Mureung/Mureng and Ureung, the name Usan remained in use but only referred to Dokdo.166 2. Historical Records and Maps From the historical point of view, as far as Korea is concerned, in 512 ad, when the Kingdom of Silla incorporated Usanguk into its territory, the former constituted the islands of Ulleungdo and Usando, that is, present day Dokdo.167 The Korean government also takes support in certain ancient records published during the period known as the Kingdom of Josen (or Chosun) in 1454/1481 and 1531, namely Geographical Appendix to the Annals of King Sejong and the Revised and Augmented Version of the Survey of the National Geography of Korea respectively.168 It is claimed that these records show that Dokdo appertained to Gangwon Province, while the Revised and Augmented Version of the Survey appended two maps both of which showed the two islands of Ulleungdo and Dokdo as part of Gangwon.169 A notification, as Korean Professor Yong-Ha Shia points out, in the Chiriji (Gazetteer) of Sejong (or Sujong) Sellok, states as follows: “Two islands of Usan and Mullung are located in the sea due east of the hyon county, and they are not far off from each other, so one is visible from the other on a fine day.”170 Usan, he contends, refers to Dokdo, and Mullung

165 166

167

168

169 170

(Dae-song Hyun ed., 2008) (referring to the study carried out by a leading Korean historian, Professor Byeong-do Yi). Id. at 44–45. Id. at 45. See generally, Kwan-sook Park, Legal Status of ‘Dokdo’ Island, 1 Korea Observer 78, 78–79 (1968). Northeast Asian History Foundation, supra note 1, at 4. See also Kim, supra note 5, at 362; Yong-ha Shin, A Historical Study of Korea’s Title to Dokdo, 28 Korea Observer 333–334 (1997). Cf. Kajimura who remains skeptical of its probative weight given that there was no certainty whether there were, at least as far as the maps were concerned, two island or just one. Kajimura, supra note 157, at 443. Translated titles; in original: Sejong Sillok Jirji and Sinjeung Dongguk Yeoji Seungnam respectively. See Northeast Asian History Foundation, supra note 1, at 4. See also Kim, supra note 5 at 362–363; Shin, supra note 167, at 335. Northeast Asian History Foundation, supra note 1, at 4. Shin, supra note 167, at 335 (citing from volume 153, as contained in the Section on Uljinhyon, Kwangwondo). Cf. Kajimura, supra note 157, at 442–43 (pointing out that the controversy surrounding the question involved reference to whether these were two names for the

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to Ulleung, and the hyon to Uljinhyon or county.171 Similarly, Korean scholars have pointed out that the Samguk Sadi (Historical Records of the Three Kingdoms) of 1146, the Goryeosa (History of Korea) and other texts show that there was a tax official for both Usan and Mureng; and/or for Ulleungdo and Usan in the late nineteenth century; and that this was “evidence that Korea recognized Dokdo as an island ancillary to Ulleungdo long ago.”172 Some assistance is also to be had from ancient and relatively modern Korean maps despite the “immature cartographical skills” of the mapmakers. Yong-Ha Shia refers to three major maps which “show the exact location and name of Usando [the earlier name of Dokdo] on the right [that is east] side of Ulleungdo.” They are Tongguk chido or The Map of Korea by Chong Sang-gi (1678–1752); the Haejwa chondo of 1822 and Choson chondo (A Complete Map of Korea) by Kim Tae-gon (1821–46).173 Furthermore, a late eighteenth century map, Aguk, purports to show both Ulleungdo and Dokdo as adjacent and under Korean rule.174 Hori reproduces a map published by the Ministry of Education, Seoul, Korea in 1899 in Taehan Yochido (Korean Gazetteer) which shows the two islands located close to each other.175 Importantly, the linking of the two islands is also evident from documents emanating from Japan. There is, for example, Onshu shico goki or Records on Observations in Oki Province in which the editor, Mr. Saito Hosen, reports on his “observation trip” to Oki-Shoto, Takeshima, and Matsushima. The entry in the Records, edited in 1667 and submitted to his lord, the daimyo of Izumo, shows that while the two islands of Takeshima and Matsushima were a day’s travel apart, they both appertained to Korea while Oki belonged to Japan; the latter thus marked the northwestern boundary of Japan.176 Furthermore, two eighteenth century Japanese maps appear to show unity of the two islands,

171

172 173 174

175 176

same island, a fact which the Japanese scholars have sought to utilize to further their claim that there was only one island, namely modern day Ulleungdo). For a detailed discussion on the different versions of this entry and the positions adopted by a prominent Japanese Dokdo scholar, Kawakami Kenzo, see Kazuo Hori, Japan’s Incorporation of Takeshima into Its Territory in 1905, 28 Korea Observer 477, 479–82 (1997). Kawakami’s work is entitled The Issue of Takeshima/Tokdo and Japan, 182 Chosen Kenkyu (1978). The Historian Seon-geun Yi, quoted in, Hyun, supra note 164, at 44. See Shin, supra note 167 at 336. Ministry of Construction and Transportation, The National Atlas of Korea 10 (2007) [hereinafter The National Atlas of Korea]. See Hori, supra note 171, at 483. Ch’an Yi, Dokdo as Seen in the Old Korean Maps, in Academic Survey and Research on Ulleungdo and DOKDO (Society of Korean History 1978) (noting that Takeshima is Korea’s Dokdo and Matsushima is Korea’s Ulleungdo), construed in Shin, supra note 167, at 336. See also Lee, supra note 4 at 237–39; Hori, supra note 171, at 484; Northeast Asian History Foundation, supra note 1, at 4–5.

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Ulleungdo and Dokdo. Hori refers to the Nihon yochirotei jenzu of 1773 and the Nippon rotei yochizu of 1778, both of which attribute the islands of Ulleungdo and Dokdo to Korea by failing it to color them in keeping with Japanese possessions; and Seokwoo Lee refers to the Takeshima Zusetsu.177 These maps were prepared by a Japanese cartographer, Nagakubo Sekisui.178 In passing, it will be useful also take note of third party non-state observations on the matter. Thus, Hori observes that a French national, Mr. E. Laporte, working for the Pusan Customs Office surveyed Ulleungdo in June 1899, and that he reported his surveys in the Hwangsong Sinman dated 23 September 1899. His report, according to this Japanese historian, indicates that Usando and Takeshima are “two big islands appendant to Ulleungdo.”179 3. State Activity, Approach, and Governmental Instruments It is particularly pertinent to take note of the official state activity, interest and instruments of both Japan and Korea insofar as this category of evidence is of the highest probative weight. First, reference will be made to the Japanese government’s approach to the matter always bearing in mind the fact that the proof for which this investigation is being pursued is linked to showing the unity of the two islands, Dokdo and Ulleungdo. Of particular importance are the Ahn Yong-bok incidents of 1693 and 1696 and hence need to be treated carefully. The Annals of King Sukjong,180 published in 1728 appear to record the fact that in 1693, Mr. Ahn, a Korean fisherman, who had earlier sailed from the mainland to Ulleungdo for the purposes of farming and fishing, became embroiled in disputes with members of two Japanese families of fishermen, the Murakami (also known as Murakami) and Otani. He, according to the Sillok, was taken forcibly to Oki where he appeared before the local chieftain and where he asserted Korean ownership over Ulleungdo. Although Ahn was eventually repatriated to Korea, this incident set in train an enquiry into the sovereign status of Ulleungdo. In 1696, the Japanese Tokugawa Shogunate affirmed that Ulleungdo and “its associated feature” Dokdo appertained to Korea. According to Korean sources, this affirmation is recorded in the official documentation of Japan’s

177 178 179

180

See Lee, supra note 4, at 239. See Hori, supra note 171, at 487. Id. at 482. Of course, insofar as he was working for the Korean Kingdom in Pusan, Laporte’s report was arguably not independent. The original title in the Korean language is Sukjong Sillok. For an account of the incidents, see Northeast Asian History Foundation, supra note 1, at 5–6; for a detailed account, see Shin supra note 167, at 337–344.

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Genroku Era (late 17th century).181 Despite this, Japanese fishermen continued to sail over to Ulleungdo prompting Ahn to challenge them again in 1696. Chasing them back to Oki, Ahn once again pleaded Korean sovereignty and following another enquiry, the Lord of Hokishu (modern day Tottori Prefecture) confirmed that Ulleungdo and Dokdo were under Korean rule. In 1699, there was an exchange of instruments which recognized Korean title over these islands.182 Once again, Dokdo/Takeshima is not mentioned in this instrument; but because it “regards the island as an appendant of Takeshima/Ullungdo, and thus its ownership is considered to have been treated likewise. Therefore, with the Japanese government decision to prohibit Japanese fishermen from going over to Takeshima/Ullungdo, their passage to Matsushima/Tokdo had to come to an end, too.”183 Importantly, the Japanese have a different view of the matter, one which is characterized by the statement that there are no records in the possession of the Japanese government which would establish that Ahn was given a document in which there was recorded a disclaimer as regards sovereignty over Takeshima or Utsuryo Island.184 However, at this stage, this aspect of the matter is not in issue. What is central here that there is historical documentation on both sides which demonstrates that Ulleungdo was established Korean territory and that Dokdo was regarded as a small island associated therewith. In other words, these incidents show that Ulleungdo and Dokdo were seen as one insular entity, the fate of the minor, that is, Dokdo, being linked with that of the major, namely Ulleungdo. Similarly, the report filed by the Japanese Foreign Ministry officials in 1870 after paying an investigative visit to Korea with a view to obtaining “a clear picture of developments on the long-forgotten islands of Ulleungdo and Dokdo”185 is also relevant. The Confidential Inquiry into the Particulars of Korea’s Foreign Relations refers to Dokdo as a neighboring island of Ulleungdo. While the

181

182

183 184

185

See Northeast Asian History Foundation, supra note 1, at 5; Shin, supra note 167 at 341. See Northeast Asian History Foundation, supra note 1, at 5–6; Hori, supra note 171 at 486; Shin, supra note 167, at 343. Hori, supra note 171 at 486. See Ministry of Foreign Affairs of Japan, The Issue of Takeshima, Part 3: Prohibition of Passage to Utsuryo Island, paras. 1–5, available at http://www.mofa.go.jp/region/asia-paci/takeshima /prohibition.html. See also James B. Lewis, Frontier Contact between Choson Korea and Tokugawa Japan 183–184 (2003) (noting that the Tsushima authorities were apparently pressing Tongnae to re-open the issue of visiting Ulleungdo). Northeast Asian History Foundation, supra note 1, at 6.

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linking of the two is clear and evident, the Inquiry states that no document was filed concerning Dokdo.186 The Dajokan Directive of 1877 is another Japanese legal instrument of interest. This Council of State document had its genesis in an inquiry undertaken by the Ministry of Home Affairs (Naimusho) regarding the disposition of the island of Takeshima (or Ulleungdo) and “Another Island” in 1876.187 The question was whether or not these two islands ought to be included in the proposed cadastral map and survey of the nation. The issue was first raised by the Office of Geography, Ministry of Home Affairs, Japan, and then sent over to the Prefecture of Shimane for investigation. The reply of the Prefecture,188 based as it was on the history of the islands and the Otani and Murakawa, “treated the two islands together as it understood Matsushima/Tokdo was attached to Takeshima/Ulleungdo.”189 Thereafter, the Ministry of Home Affairs of Japan, conducted its own five month investigation and discovered that the question had already been resolved in 1699 and accordingly decided that the two islands ought not to be included in the survey. The directive was adopted by the acting Head of the Dajokan,190 the Minister of the Right, in March 1877 and the Ministry of Home Affairs formally instructed the Prefecture in April 1877 to exclude the two islands insofar as they were under the sovereignty of Korea.191 This of course is good evidence that the government of Japan acknowledged that Dokdo was Korean, but it also shows that Ulleungdo and Dokdo were always taken together. In short, the key point here is as stated by Japan’s Professor Hori: In other words, the Dajokan . . . , the highest government organ in Japan at that time, formally declared, on the basis of the report of both Shimane prefecture and the Ministry of Home Affairs and treating Takeshima/Ullungdo and Matsushima/ Tokdo as an integral whole, that these two islands were not Japan’s territory.192

It would appear that the very first occasion on which there was a decoupling of these islands is when Japan issued its Shimane Prefectural Notice No. 40

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187

188

189 190 191 192

Id. at 7. This Confidential Inquiry is contained in Nihon gaiko bunsho [3 Japan’s Diplomatic Document No. 87] (April 15, 1870). See Shin, supra note 167, at 345; Hori, supra note 171, at 491–2. See generally Hori, supra 171, at 489; Northeast Asian History Foundation, supra note 1, at 7–8; Van Dyke, supra note 1, at 174. The reply is entitled: An Inquiry about the Compilation of the Land Register on Takeshima and Another Island in the Sea of Japan. Hori, supra note 171, at 489. Id. at 489–90. Japan’s Council of State. Shin, supra note 167, at 345–46. Hori, supra note 171, at 490–491; see also Northeast Asian History Foundation, supra note 1, at 7–8 (emphasis added).

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in 1905 announcing the incorporation of Dokdo but not Ulleungdo into its territory.193 As far as Korean policy and instrumentation is concerned, it is pertinent to note the evidence of a linkage between these and other insular features in a governmental decree, namely Imperial Ordinance No. 41, adopted in October 1900. This law institutes administrative changes for Ulleungdo and two more islands, namely Dokdo, which in the Ordinance is referred to as Seokdo according to Korea,194 and Jukdo, by upgrading their status to gun or county. Under Article II, the jurisdiction of the Uldo county magistrate was extended to the whole of Ulleungdo, Jukdo, and Dokdo, referred to in the Ordinance as Sokto.195 Korea argues that the Ordinance was necessitated following Japan’s alleged encroachment of Ulleungdo.196 At this point it must be added that Japanese scholars refute this interpretation of historical documentation referred to above. They argue, in the first place, that etymologically speaking, Seokdo could not have referred to Dokdo; and that the Jukdo and Seokdo of the Ordinance is in fact a reference to Jukseodo, a small island approximately one and half miles (two kilometers) east of Ulleungdo.197 These arguments are supported by reference to some ancient maps.198 From the Korean perspective, however, there is no real confusion because the Korean government has always known about Jukdo as an island quite distinct from Ulleungdo as is evidenced by the fact that Ordinance No. 41 of 1900 is predicated on creating administrative changes for three islands, namely Ulleungdo, Dokdo, and Jukdo. Furthermore, the question of Jukdo being part of Ulleungdo is a matter of total non-controversy, the point being that any insular territory which is only a mile and a half away, is geographically so close that the question of appertaining to any other non Korean entity is in fact out of the question. The essence of the argument is that the extremely short distance between Ulleungdo and Jukdo goes to making the two integral with each other, and as such the territorial configuration is such that it falls in the category described in subsection (i) of Section IV above, namely assimilation and integration with the coastline, whereas the geographical situation of Dokdo and Ulleungdo is 193 194 195 196

197 198

Northeast Asian History Foundation, supra note 1, at 9–12. Hyun, supra note 164, at 56. Shin, supra note 167, at 349; Hyun, supra note 164, at 56. Northeast Asian History Foundation, supra note 1, at 10; Shin, supra note 167, at 349. See also Matsumoto Takeo, How to Achieve a Fair Solution to the Senkaku Islands and Takeshima Problems Recognizing the Need to View the Issue as a Result of Policies of Aggression, in A Fresh Look at the Dokdo Issue: Japanese Scholars Review Historical Facts 1, 12 (2006); The National Atlas of Korea, supra note 174, at 5. Hyun, supra note 164, at 57. See Dokdo-or-Takeshima?, available at http://dokdo-or-takeshima.blogspot.com/.

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such that it constitutes natural unity and falls in subsection (ii) of Section IV discussed above, namely the natural unity of islands. As Professor Kajimura puts it, “Ulleungdo has several adjoining islands within a distance of one nautical mile, and two of them are slightly smaller than Takeshima/Tokdo but habitable. Takeshima/Tokdo is definitely too far away to be treated in the same way as these attached islands [of Ulleungdo].”199 From this point of view then the reason for actually referring to an adjacent island was that it was far enough in terms of geography to be a discrete island and yet close enough to be regarded as being part of a natural group of islands and rocks in the East Sea. Reference in the second place, ought also to be made to the so-called “vacant island policy” instituted by the Korean kingdom by virtue of a law adopted in 1430. By virtue of this law, Korean nationals were prohibited not only from fishing around both Ulleungdo and the Dokdo Islands but also to reside there.200 This withdrawal of permission to fish and reside was necessitated by two factors, the first of which involved dangers linked to Japanese pirates201 and the difficulties associated with providing security and protection to the Korean inhabitants of the islands. The second reason was to frustrate attempts by Korean nationals to escape from Korean tax collectors; the kingdom did not want these islands to become havens for tax and draft evaders.202 It is true that the vacant island policy may appear to be abandonment of the islands, signaling loss of title, and making Dokdo territorium nullius, but that is not the case, not least because it is well recognized that abandonment of title requires an intention to abandon, animus derelinquendi203 and that is nowhere in evidence. It appears from historical accounts, namely the Annals of King Sukjong, that there existed an oral tradition regarding the existence of Sambongdo/ Dokdo as an island separate from Ulleungdo. It seems that the kingdom was motivated not only to confirm the existence of this island but also to discover whether tax evaders had escaped to Sambongdo/Dokdo. Kajimura takes note of the fact that over the years several search expeditions were dispatched but only one was successful when in 1476 the expedition led by Kim Cha-ju appears to have discovered the island and to have described its geographic contours and 199 200 201 202

203

Kajimura, supra note 157, at 436–37. Takeo, supra note 196, at 12; Shin, supra note 167, at 334–35. The National Atlas of Korea, supra note 174, at 5. Kajimura, supra note 157, at 445. This is a circumlocution based on the account presented by that author as opposed to a precise statement to that effect. However, Hyun is more to the point on this. See Hyun, supra note 164, at 60. See generally Brownlie, supra note 6, at 138–39; Goebel, supra note 8, at 412–21; O’Connell, supra note 6, at 444–48; Oppenheim/Lauterpacht, supra note 6, at 579–81. These observations are based on case law, particularly Clipperton Island, II UN Reports of International Arbitral Awards 1107; Eastern Greenland, 1933 P.C.I.J. (ser. A/B), No. 53 (1933) at 22. See also Lee, supra note 4, at 238–39.

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terrain.204 The essence, however, of the point for purposes of this study is not that there was no animus derelinquendi for Dokdo, but that the vacant island policy applied to both Ulleungdo and Dokdo, both being seen from the Korean point of view as one entity. Moreover, importantly, when the vacant island policy finally began to be reversed in March 1883 by the Korean government, it applied it to both sets of islands. The official appointed for this task, the Commissioner for the Development of the Southeastern Islands, undertook development and resettlement in both Ulleungdo and Dokdo. While the latter task remained unsettled,205 it is the case that fishing around both islands remained the most important industry insofar as it supplied Ulleungdo’s inhabitants with food resources.206 The unity of the islands is also obvious by the collective title, Southeastern Islands, given to them.207 Japanese sources also link the two islands by way of Japan’s approach to fishery and other activities in the context of those islands. According to the Ministry of Foreign Affairs of Japan, two prominent Japanese families, the Otani and Murakawa/Murakami, had acquired the right to fish in Utsuryo Island or Ulleungdo from the Tokugawa Shogunate in 1614/1618/1625,208 and according to Japan’s Professor Hori, the Japanese authorities issued these families with “a new permit for passage to Matsushima/Dokdo” in 1661.209 Takeshima thus became a port of call, a navigational port and docking point on the way to Ulleungdo.210 According to Professor Hori, these Japanese families claimed they had not just obtained seafaring and fishing permits; they had in fact acquired Takeshima/Ulleungdo by way of enfeoffment. Hori denounces this as a “false” claim,211 but the point here is not focused on that aspect of the matter: the point being demonstrated here is that even the Japanese authorities regarded the two islands as one unit. Hori goes on to show that: Apparently because of the different sizes of Takeshima/Ullungdo and Matsushima/ Tokdo, historical records written at that time [circa. 1691] variously describe Matsushima/Tokdo as ‘being situated within Takeshima’ or being located near 204 205 206 207 208

209

210

211

Kajimura, supra note 157, at 444–45. Kim, supra note 5, at 364 (noting that the vacant island policy continued for this island). Shin, supra note 167, at 349. Id. at 348–49. Ministry of Foreign Affairs of Japan, supra note 184, at Part 2: Sovereignty of Takeshima, paras. 1–5. For a more critical view, see Kajimura, supra note 157, at 447. Hori, supra note 171, at 485; see also Kajimura, supra note 157, at 452; Hyun, supra note 164, at 58. See Seichu, supra note 163, at 22–26. See also Ministry of Foreign Affairs of Japan, supra note 184; supra note 208. For a more critical view, see Kajimura, supra note 157, at 447. Hori, supra note 171, at 485. He attributes the descriptions in the citation to Kawakami’s work. Kawakami, supra note 171.

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At any rate, Japanese sources refer to this period as one of “management of Takeshima,” a period of time which lasted about eighty years until about 1696 when following the conclusion of the process started by Ahn-Yong Bok, also known as the Takeshima Ikken or Affair, the Shogunate forbade Japanese interference with Utsuryo or Ulleungdo. The Korean government takes the position that this Suinjo or red seal letter was a certificate authorizing foreign trade, a fact which proves Japan’s recognition of Korean control, but more importantly for purposes of this study is the claim that the certificate did not authorize the exercise of control over Dokdo/Takeshima.213 Herein arises some confusion. Some Japanese sources assert that this ban applied to Ulleungdo, and not to Dokdo,214 and it is a fact that the directive failed explicitly to prohibit seafaring to Takeshima as opposed to Ulleungdo. Korean sources hold that the ban applied to both because of the islands-groupentity consideration. On balance, it would appear that the ban on fishing and the like applied to both islands. One argument in favor of this is that it is simply logical that the Shogunate would apply the ban to all places and features which were involved in or facilitated activity regarding Ulleungdo, and Takeshima, as Japanese scholars have themselves urged, was one of those islets which provided a docking point and a staging post en route to Ulleungdo. It is difficult to believe that the authorities would be Takeshima-inclusive with respect to one aspect, namely fishing activity, and Takeshima-exclusive for the other, that is, an order prohibiting such activity over Ulleungdo. Another argument comes from Professor Seichu, another Japanese scholar, who asserts, “However, since Matsushima is an island associated with Takeshima, it was not given any special attention. Thus, a separate seafaring license was not even issued, and there was no need to refer to it separately.”215 4. Private Activities Finally, in this context, account must be taken of the role played by private persons, particularly fishermen, with respect to the unity of the two islands. There can, of course, be no creation of title by private persons, as opposed to

212 213 214

215

Hori, supra note 171, at 485. See also id., at 486. Hyun, supra note 164, at 58–59. See Ministry of Foreign Affairs of Japan, supra note 208, para. 5; cf. Kajimura, supra note 171, at 449–451; Seichu, supra note 210, at 29–31. (Both are Japanese scholars). Sheichu, supra note 163, at 30.

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state activity, a rule well recognized in international law, and the argument here is not that fishermen created title by way of user of the disputed islands. It is the evidentiary value of Korean fishermen which is relevant here. Korean sources, including the government, contend that for centuries, fishermen from Ulleungdo visited Dokdo and set up temporary anchorages thereon216 which activity, over time, created links between the two islands. Similarly, by the end of the nineteenth century, Japanese fishermen hailing from the San’in region began sailing to Ulleungdo for purposes of fishing and made brief stopovers at Dokdo/Takeshima for some fishing.217 The fact is that the waters surrounding Dokdo are rich in fisheries.218 Indeed, Ahn Yong-bok, a fisherman, was prompted to proceed to Dokdo from Ulleungdo with a view to harvesting the sources of the sea around the two Dokdo islets. Similarly, the Japanese contention is that the families of Otani and Murakawa obtained a permit in 1656 for the right to sail to Takeshima as they had earlier obtained right of passage to Ulleungdo in 1618.219 There are two important facts regarding the second category of evidence upon which the two states may well be tempted to rely, namely the sub-surface evidence based in geomorphology, geology, and bathymetry with respect these islands and the mainland of Korea and Japan. The first point is that geographical natural science facts will have to be seen cautiously not least because there is sufficient case law to suggest that international tribunals are not entirely persuaded by arguments relying on geomorphological and geological considerations for purposes of establishing sovereign rights to the islands, insular features and the continental shelves between states. As far as claims to land territory are concerned, it is relevant that the International Court of Justice gave no countenance to the claims of Singapore with respect to Middle Rocks and South Ledge in Pedra Branca/Pulau Batu Puteh against Malaysia. The former state argued that it had title to both Middle Rocks and South Ledge, “first [because] both Middle Rocks and South Ledge form geographically and morphologically a single group of maritime features.”220 However, as noted earlier, the Court gave weight, indeed conclusive determinant weight, to the fact that Malaysia/Jahore had established ancient original title to Middle Rock and because that title had in fact not been disturbed by

216

217 218 219

220

Northeast Asian History Foundation, supra note 1, at 2; Takeo, supra note 196, at 11–12. Hori, supra note 171, at 504; see generally id. at 504–07. Dokdo and Sino-Japanese Diaoyudao Disputes, Korea Herald, Nov. 24, 2008. Hyun, supra note 164, at 59. For details on this permission, see Seichu, Questions Concerning the Japanese Theory on Takeshima as Japan’s Inherent Territory, in id. at 148–53. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, supra note 49, at para. 279.

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Singapore or its predecessor Power, Great Britain, therefore title to Middle Rock remained vested in Jahore and its successor state, Malaysia.221 Accordingly, there was no need to discuss the geographical or morphological aspects establishing the unity of the islands/insular features. There is more skepticism regarding claims to the continental shelf based on such argumentation. Thus in the very first case before the Court on continental shelf delimitation, that is, Tunisia vs. Libyan Arab Jamahiriya,222 the Court cautiously rejected the scientific facts of geomorphology and geology advanced by the disputing states to establish the natural prolongations of the continental shelf between the disputing parties,223 and importantly the Court has indeed maintained this position throughout and reiterated this in various other cases, including Gulf of Maine224 and Libyan Arab Jamahiriya vs. Malta.225 The same skepticism was shown by the arbitration tribunal in the Guinea vs. Guinea Bissau case.226 The parallels of natural unity of islands with the notion of natural prolongation of the continental shelf of a coastal state are obvious and hence this point need not be labored any further. The second point is that an international tribunal will nonetheless be tempted to examine such geomorphological and geological links even if it is only one factor in the total legal scrutiny of the case of the disputing parties, and to that extent it is relevant to note that while the geology is persuasive, the geomorphological facts are inconclusive. As far as the geology is concerned, a Japanese scholar states that Ulleungdo and Dokdo are both volcanic islands of the same nature belonging to the Paektu volcanic range.227 As far as geomorphology is concerned, the two islands are situated in the middle of the deepest part of the middle of the Sea of Japan/East Sea.228 Situated in the middle of the Tusima Basin,229 Dokdo is located on the Yamato Rise.230 The Basin which separates Dokdo from Ulleungdo is characterized by depth which in greater part is in 221

222 223 224 225

226

227 228 229

230

Id. para. 290. Cf. Dugard J. ad hoc, id. paras. 44–45 (dissenting opinion) (castigating the Court for not giving some indication to the parties on issues of paramount importance to them). Continental Shelf (Tunis v. Libya), 1982 I.C.J. 18 (Feb. 24). Id. at 53, 57. Delimitation of Maritime Boundary of Gulf of Maine (Can. v. U.S.), 1984 I.C.J. 246, 271–74. Case Concerning the Continental Shelf (Libyan Arab Jamahriya/Malta), 1985 I.C.J. 13, 34–35 (June 3). Maritime Boundary between Guinea and Guinea-Bissau, 77 I.L.R. 635, 685–87 (Arb. Trib. 1988). Kajimura, supra note 157, at 437. Id. at 437. Ministry of Construction, The National Atlas of Japan (rev. ed. 1990) [hereinafter The National Atlas of Japan]. Douglas M. Johnston and Mark J. Valencia, Pacific Ocean Boundary Problems Status and Solutions 113–14 (1991).

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excess of 2000 meters, to a maximum of 4000 meters; and the depth of waters is fairly uniform. It is only for about 3 miles eastwards of Dokdo that the depth of waters ranges between only 200 meters to 1000 meters.231 However, the depth of waters between Dokdo and the Oki-Shoto islands, Dozen (or Daisen) and Dogo are less uniformly deep. For about 25 miles on the surface of the water in a straight line from the latter islands to Dokdo, the depth of waters ranges between 200 meters; for the next 18 miles, the depth ranges from 200 to 1000 meters; and then for another 40 miles approximately, the depth falls to a maximum of 2000 meters. It then begins to rise back up to a depth of 1000 meters which depth continues for about 6 miles; and then the slope begins to ascend again for about 4 miles to 200 meters; and then descends back to a maximum depth of 1000 meters. It continues at this depth for about 10 miles until it reaches Dokdo. This very general and approximate description shows that the underwater topography is fairly undulating between the Japanese Oki-Shoto and Dokdo/Takeshima, but that for fair distances, the depth of the waters between Dokdo and the Oki-Shoto Islands and Dokdo and Ulleungdo is the same. Given this, an impartial evaluation of the sub-surface evidence is not likely to go in favor of either disputing state, and it follows that it is not likely to prove any geomorphological unity of Dokdo with either Dozen and Dogo; or Ulleungdo and Dokdo. The implications of this are that any natural unity of the two islands must be based, as noted above, on criteria such as history, control and occupation, politics, economic, and societal considerations. The balance of the evidence shows that Ulleungdo and Dokdo have been steadfastly been linked with each other over the centuries and on that basis the islands and their associated islands, and insular and maritime features, all qualify as a group based in natural unity. If that is a correct appreciation of the facts, and it is submitted that it is, then it would follow that the state which has sovereignty over the principal island, namely Ulleungdo, has title also to the minor island, that is Dokdo and its 32 surrounding rocks and islets. The question of title to Ulleungdo has not been in issue between Japan and Korea, at least not since 1696. Japan has acknowledged that it is not in dispute with Korea over Ulleungdo; nor is there any other state claiming title to it. Accordingly title to Ulleungdo vests in the state which not only claims title to the island but which has exercised clear sovereignty over it for centuries, namely Korea. The only break in such administration and control came when Japan annexed Korea in 1905. This as observed in an early part of this study is not within the compass of this research and hence that aspect of the matter cannot be scrutinized here. It will therefore suffice to note here that the

231

This information is garnered from a number of sources, e.g. The National Atlas of Japan, The National Atlas of Korea; The Times Atlas of the World.

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dependencies and appendages of Ulleungdo will as required by law follow their principal island and thereby remain linked to or be identical in status with the latter, and that means that the islets are consequently Korean in character. Nor is there any evidence to demonstrate that this natural unity was broken in terms of political alliances, leaving Dokdo separated from its principal island and making it territorium nullius thus allowing any other state to occupy and claim sovereignty over it. All the evidence shows that the islands remained united as a group with the result that there was no question of Korea losing its sovereignty over Dokdo in favor of Japan. As far as the comparative distance rule is concerned, the fact, as stated above is that this rule comes into play only where there is insubstantial evidence on either side; or where the evidence is evenly matched. This is not the case for this particular dispute on account of the fact that there is a plethora of evidence in favor of natural unity and clear title to the islands of Dokdo.

VII. Conclusion A number of interesting sets of observations are worthy of note as concluding remarks. In the first place, there must be some accounting for the role and function of international law as seen in the context of this dispute. Three clear roles can be identified in this respect. In the first place, one key function is the maintenance of peace between the two parties, and of course, more generally the international community. The implication here, of course, is that both states are precluded from using force to settle their dispute regarding the Dokdo/Takeshima islets. This is truly a very basic point which, when applied in the context of other disputes in contemporary times, would appear trite were not for the fact that the history of these two states is such that the existence of peace between these two states has added significance. Nor can the fact that Dokdo for Koreans is not simply a pair of barren islets but also symbol of nationalism which cannot be over-emphasized. It is best always to bear in mind that, after its bitter experience regarding these islets and its own status as an adjunct to, and a colony of, Japan, Korea will not hesitate to take any kind of measure to keep Dokdo under its control and maintain sovereignty therein, including the use of armed force if threatened by a hostile takeover, both real or imagined. Maintaining international good order, the second function of international law, flows from the first and involves, inter alia, the regulation and control of bilateral and multilateral (a) inter-state relations; the relations between (b) states and international organizations and (c) the relations between states and individuals and groups of individuals in certain circumstances according to accepted principles of international law. One of the more important principles is pacta

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sunt servanda. An adherence to the rule of law doctrine may also be required in certain limited circumstances, as for example where action by an international body exercising executive functions is in question, and in particular the United Nation Security Council. Be that as it may, for current purposes, the function of this aspect of the law entails that the two disputing parties conduct themselves in an orderly fashion, and in particular refrain from exaggerating or aggravating the Dokdo/Takeshima dispute, not least because it generates intense passion and emotion in the citizenry of one of the parties. It also requires the two states to enter into negotiations for the peaceful settlement of the dispute in good faith and with bona fide intentions. It is the third function of international law which has particular relevance to this discussion. The notion of justice is for some the keystone in an orderly, peaceful society, both domestic and international. Thus it is not only important to maintain peace and good order between states. It is equally, and for some, more important to do justice by interpreting and applying the law; and this, with respect to the matter at hand, constitutes settling the island dispute between Japan and Korea by way of an interpretation and application of the rules and principles of international law. For the Korean state and its people, a settlement by the application of law is a solution much sought after, not least because it would demonstrate to Japan, and indeed the international community of states and international organizations, that its possession and control of Dokdo was and is perfectly legitimate. Furthermore, it would give the dispute its quietus; but most importantly, it would help in large measure to restore Korean national pride which was brutally damaged by Japan’s aggressive policies towards Korea. Even so, for the Japanese nation, the task of international law is a simple and forensic one, and that is to restore Takeshima to Japanese sovereignty resolving thereby an historic injustice perpetrated soon after the end of the Second World War. Thus for Japan, international law can function in a way which would end the unlawful possession of Takeshima and where this is achieved by way of an international tribunal, this restoration would constitute an example of how the latter can administer international justice. Moreover, it would also demonstrate to Korea and the international community that its claims to Takeshima were neither vexatious nor neo-colonialist in nature and form; and that they were not manifestations of a new aggressive foreign policy. What is abundantly clear is that while they both fully believe in international justice by way of law, both Japan and Korea have totally differing views of what this would entail in the precise context of the Dokdo/Takeshima dispute. This in itself is not unique situation, for many territorial disputes will have similar sort of considerations. The point to emphasize here is that whenever the application and interpretation of international law leads to an impartial juridical settlement of a dispute, it is not a question of the tribunal vindicating one Party’s

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views as against the other. It is in fact quite simply allowing the law, facts, and evidence to take its natural juridical pathway and by doing so, to decide the issues in question. In other words, the objective of international justice is not to “vindicate” the claims of one Party but to resolve the issues in a clinical, forensic application of the law whatever the emerging picture on the ground may actually turn out to be. Thus if a tribunal were to determine that Dokdo/ Takeshima appertains to Korea or to Japan, the objective of the exercise would not have been the allocation of sovereignty in favor of one against the other, but simply to do international justice by a blind and impartial application of the law, the result of course would be consistent with the claims of the parties in whole or in part, and to that extent it would have attributed sovereignty to one of the parties. Whether or not that allocation constitutes a vindication of the claims of one of the parties, or constitutes maintaining the status quo will not be a matter with which the international tribunal will be concerned. The second cluster of observations is concerned with the relevant rules on the basis of which a dispute can be settled, for it ought not to be ignored that they may not necessarily be free from difficulties. For one thing it has been seen above that there can be conflicting views on the precise nature and scope of such rules. It was shown for example that some scholars take the view that there exists a presumption of law with respect to sovereign title in favor of a coastal state when an island is found to be located in the territorial seas thereof. It was also shown that this position lacked juridical sophistication and that it was inconsistent with one of the cardinal rules of title to territory, namely state control, possession and activity; and that accordingly a fresh assessment of the propositions was warranted. The assessment showed that the matter was indeed complex and more importantly the role of contiguity needed to be examined in the light of modern case law. The essence of the point is that while these matters can be examined and propounded in academic texts, an international tribunal would need utmost clarity of the law and the strength or weakness of the judgment or award will then depend on the materials before the tribunal and the force of advocacy. These pitfalls, as indeed they are, are to be expected in a discipline which is famously lacking in characteristics of black letter law and which is one of the reasons why states are profoundly hesitant to commit themselves to the arbitration or adjudication of disputes. For another, it is also a question of timing in terms of the settlement of disputes. It is the case that law, and especially international law, is dynamic, that is to say, it is constantly evolving. In stark terms, this means that when states decide to take their issues to an international tribunal they also take the unknown risk that the state of law today, by which the dispute would be examined, may be different a decade or so later, especially where the relevant and applicable rules of law are in need of clarity. It is perhaps the case that the

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advisory opinion in the Western Sahara232 request would probably be differently decided in contemporary times. The same is probably true for the North Sea Continental Shelf cases.233 It is believed that had the Dokdo/Takeshima dispute been referred to the International Court of Justice when the question was first mooted in the 1950s, the Court would have struggled to find a proper fully satisfactory rule for contiguity free of ambiguity. Today, however, the law is that much clearer, at least in terms of the scrutiny to which the applicable cases have been subject. The position taken here is that the contiguity principle as applied in the above study, would have justified the allocation of the disputed islets to Korea. The problems of theory and orthodoxy and practical realities form the subject matter of the third class of observations. It is interesting to juxtapose the orthodoxy and theory with the reality on the ground as it were in the case. The orthodox position is of course that the state system evolved in the West as a product of Western historic, feudal, intellectual and diplomatic traditions, and conventions and the notions of sovereignty emerged from the crucible of the Westphalian system of alliances and the Renaissance. Pertinently, the two disputing states, that is Korea and Japan, (and indeed China) have never seen themselves as anything but sovereign territorial entities, owing no debt to the West in this behalf. True it is that the notion of sovereignty had a precise trajectory of development in the West as a point of opposition to the supremacy of the Pope,234 but whereas the Far Eastern kingdoms did not have the benefit of Bodin’s views on sovereignty, they, on a very practical level, knew that their respective kings and emperors were suprema potestas. As Dawson writes in Imperial China, “The state of Koguryo had been in existence for 700 years . . .”235 calculating that period of time from the year 668 whereafter it became a satrap of China. This today is borne out by the fact that the International Court of Justice is willing to take a less orthodox position on this aspect of the matter. For in Pedra Branca, the Court accepted in express terms that the Sultan of Jahore had sovereignty over Pedra Branca/Pulau Batu Puteh before losing it eventually to Great Britain.236 It is also a marked improvement over the award delivered by the arbitration tribunal in Eritrea vs. Yemen Phase I where it denied that Yemen could have exercised territorial sovereignty insofar as that principle had “developed among the European powers and became a basic feature of 232 233 234 235 236

Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16). North Sea Continental Shelf (F.R.G. v. Den. and Neth.), 1969 I.C.J. 3 (Feb. 20, 1969). See generally F.H. Hinsley, Sovereignty (1966). Raymond Dawson, Imperial China 68 (1972). Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, supra note 49, para. 117.

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nineteenth-century western international law.”237 It is submitted that propositions such as these have begun to carry less weight and as international law continues to develop and more evidence regarding examples of original title emerges from other ancient entities such as Iran, flawed observations such as those cited will lose their authority. In some ways, the Eritrea vs. Yemen arbitration is a milestone, not of juridical rigor, but of an epoch coming to an end, that is the twentieth century. Notwithstanding the fact that these two ancient Far Eastern kingdoms were in fact states, and despite the fact that for centuries there existed diplomatic, commercial and indeed conflict relations between them and other kingdoms in the Far East with a well developed sense of law and protocol to guide them, neither Japan nor Korea have sought to establish their claims on any ground other than the accepted principles of international law which, it cannot be escaped, was primarily a product of the interaction between states in Europe and the New World. Pertinent is also the fact that neither Korea nor Japan have pleaded any kind of local binding custom in furtherance of their claims, being satisfied it seems that their claims rest easy on the strength of the mainstream normal rules and principles of international law. It is in this context that the fourth set of point needs to be made. The Dokdo/ Takeshima dispute is one of the very few land territorial disputes which involve no reference to colonial or post-colonial situations. In the vast majority of territorial disputes today concerning terra firma issues, as opposed to maritime territory, there is, in one form or another, some involvement or background of colonial rule which manifests itself ultimately as a question of one newly independent state against another, where one or both parties were at one point under the same sovereign ruler, as for example Argentina and Chile with respect to the Beagle Channel arbitration;238 or Burkina Faso and Mali and Benin and Niger in their eponymous cases respectively;239 or Pakistan and India in the Rann of Kutch arbitration; or where at least one Party is a former colony or non self governing territory, as for example the Falkland Islands dispute between the United Kingdom and Argentina; or where both are former metropolitan states with vast empires, and here reference is being made to Spain and the United Kingdom with respect to Gibraltar. It is true of course that Japan was also a colonial power, and that it administered Korea as part of the Japanese Empire from 1905 to the end of the Second World War in 1945, but the dispute itself is less a manifestation of Japanese empire-building and more a reflection of mutually conflicting con237 238 239

114 I.L.R. 1, at 42. See similar reservations expressed, id. at 45. 57 I.L.R. 93. Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554; and Frontier Dispute (Benin v. Nig.), 2005 I.C.J. 90.

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cepts of territory integral to their respective kingdoms/statehood as opposed to an acquisition of title to foreign lands. Thus, the dispute is best seen as a consequence of two adjacent ancient kingdoms caught up in confusion regarding sovereignty at the edges of their respective territories. The short point is that while many states fall into territorial and boundary disputes as a result of mistakes, ambiguity, confusion, and a lack of specific knowledge, the Dokdo/ Takeshima dispute cannot be laid at the feet of any colonial master. Thus, even if Japan had not been an empire-building nation, and even if it had been at peace with Korea throughout the late nineteenth century and the middle of the twentieth, it is highly likely that the Dokdo dispute would still have existed in form or another. It is instructive to note that Canada and the United States, firm friends and allies, have not been in armed conflict with each other since the War of 1812–15. Thus, while peace and friendship has existed between them for nearly one hundred years, there are several extant territorial disputes between them, including the Machias Seal Island dispute, a maritime feature which is even smaller than Dokdo. Fifth and final is a reminder regarding the important role played by geographical features in the formation, formulation, and development of certain rules and principles of international law. Law of course does not operate in a vacuum and it is the case that it responds to relevant facts informing the legal situation, but in matters of title, the symbiotic relations between law and geography are at their most intimate. The rules surrounding title to territory are not always rules applicable in a certain situation. These rules are also the result of the law responding to the exigencies of the terrain. Thus, in all the right circumstances, a state is entitled to claim sovereignty to a tract of territory if certain conditions are met; and if a state can show that an island is so intimately linked to the land domain that the former is in fact an extension of the coast, then in all the right circumstances, a state can successfully be regarded as a titleholder to the island. Similarly, where islands are so closely linked and knit together that they are in fact dependencies or appendages of other principal islands, then the coastal state will have made out good title to the dependencies provided, of course, it can show sovereignty and ownership over the group of islands as a whole. Rules of this kind constitute evidence of the fact that the law is not blind to the realities of the factual world around it and that it will in some circumstances strive to ensure that the hiatus between law and fact is cut back to a minimum or is at best nonexistent.

Chapter VIII An American Assessment of South Korea’s Policy Options Towards Its Claim to Dokdo and Its Relations with Japan Larry A. Niksch* I. Introduction Korean-Japanese relations are receiving a higher level of attention in Washington these days, at least in the U.S. House of Representatives, among Washington “think tanks,” and in the U.S. media. That is primarily because of the comfort women issue and the importance of Korean women in the Japanese military’s comfort women system during World War II. The reactions of these U.S. institutions to efforts in the Japanese Diet to revise the Japanese government’s official position on the issue appear to have shocked many Japanese. Prior to 2007, the predominant view in Japan seems to have been that the issue of how Japan deals with its history was of interest only to South Korea and China. That view should be dispelled by now. However, the Japanese history issue is only one of the contentious issues between South Korea and Japan. The dispute over the islets called Dokdo by Koreans and Takeshima by Japanese is one of these. The Washington institutions cited above are paying little attention to these, and the Bush administration tries to stay non-involved and neutral. Still, the Korean-Japanese relationship is very important to U.S. security interests in the vital Western Pacific. The emotional breakout of the comfort women issue in 2007 ought to demonstrate to Americans that an American policy of non-involvement may not serve U.S. interests best, because when either South Korea or Japan cross certain “red lines” in these disputes, the United States simply cannot stay non-involved. More fundamentally, these disputes pose continuing threats to a basic objective * Senior Adviser for East Asia with the PRS (Political Risk Services). He also is a consultant to Radio Free Asia and the Voice of America and is a specialist on East Asia with the Congressional Research Service. His views are his own and do not represent the views of any U.S. government agency.

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of U.S. security policy in the Western Pacific – to create constructive partnerships with both South Korea and Japan in order to advance military security, stability, and democracy in the region.

II. Thoughts on the Dokdo-Takeshima Claims A reading of the historic claims to Dokdo or Takeshima reveals that South Korea has the stronger claim. The history of Korean and Japanese involvement with the islets prior to the beginning of the Meiji era in Japan in 1868 gives little indication that either Korea or Japan made a substantive claim of ownership involving establishing a permanent or semi-permanent presence on the islets. However, between 1868 and 1905, there seems to have been a number of Japanese references to the islets belonging to Korea and Japan not claiming them. Japan seems to have made no formal claim to the islets prior to 1905.1 In 1904, the Japanese Ministry of Home Affairs rejected annexation of the islets “which might be territory of Korea,” only to be overruled by the Foreign Ministry, which by then was directing Japan’s establishment of a protectorate over Korea.2 Japan annexed Takeshima in January 1905 without even a consultation with the Korean government. It ignored Korea because it already was in the process of compelling Korea to accept the status as a protectorate under Japan. Japanese troops were in Seoul by February 1904, and Japan forced the Korean monarchy to sign the first of the two agreements on August 22, 1904, that placed Korea under Japanese suzerainty. The annexation of Takeshima cannot be separated from that process. Japan’s annexation of Takeshima in 1905 was not itself an illegal act in the context of the time when territorial annexations were common in wartime, including the Russo-Japanese War of 1904–1905. Its annexation was not illegitimate even in the context of Japan’s takeover of Korea in 1904–1905. However, it seems to me that the compelling issue for an American is that, with these events of 1904–1905, including the annexation, Japan began its course of aggression in East Asia – its road to Pearl Harbor. The annexation of Takeshima may have been only a minute part of this bigger context, but it was a part. Allied declarations during World War II, at Cairo and Potsdam, made

1

2

Naito Seichu, Is Takeshima Japanese Indigenous Territory?, in A Fresh Look at the Dokdo Issue: Japanese Scholars Review Historical Facts 19, 36–37 (M. Marek & S.J. Choi eds., 2006). Old Japanese map shows Dokdo islets belong to Korea, http://english.yonhapnews .co.kr/news/2006/09/14/0200000000AEN20060914005600315.html (last visited Sept. 20, 2009). Seichu, supra note 1, at 40–41.

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clear that Japan had created a new context in which to judge its takeover of Korea and that context made the takeover illegitimate. Nevertheless, South Korea faces the problem of realizing fully its claim to Dokdo. Japan disputes the claim. Other nations have taken neutral positions, including the United States. SCAPIN 677, issued by the SCAP (Supreme Commander for the Allied Powers in Japan) in January 1946, barred Japan from exercising administrative authority over the islands of Utsuryo, Liancourt Rocks (Dokdo), and Quelpart (Chejudo). The U.S. intent at that time appeared to be to transfer these islands to Korea, although SCAPIN 677 stated that the ultimate disposition of the islands was still to be determined. This apparent intent was reversed, however, during the drafting of the Allied peace treaty with Japan, which was signed in 1951. The treaty made no mention of Dokdo or Takeshima. South Korea appears to have three options to promote its claim. One is to emphasize maintaining and strengthening South Korea’s present physical control of the islets and hope that over time, physical control will cause other nations to accept South Korea’s legal claim and will cause Japan to abandon its claim. That scenario is possible. The problem is that physical control likely will depend more in the future on military power. Japanese military power no doubt will increase in the two decades that lie ahead. Japan likely will gain naval dominance in the body of water that lies between Korea and Japan (more later on the competing claims over the name for that body of water). It seems remote now that Japan would seek to realize its claim to Takeshima through military force; but a militarily stronger Japan in the next two decades would change the prospect from remote to at least a moderate possibility. The longer term prospect of a test of military strength would be further enhanced if, as some predict, the seabed near Dokdo contains deposits of natural gas.3 These factors are a strong incentive for South Korea to settle the dispute now rather than have it stalemated indefinitely. The second option would be to seek adjudication of the dispute by the International Court of Justice or some other third party. South Korea would seem to have a strong case to present to the Court or another third party. This would include the evidence of Korean claims to Dokdo prior to 1905; Japan’s annexation of the islets as part of its colonial takeover of Korea in 1904–1905; the relationship between Japanese territorial expansion in 1904–1905; and Japan’s subsequent aggression in East Asia; and the Allied wartime declarations. Japan in the past has indicated that it would be willing to submit the dispute to the Court. Major Japanese newspapers have editorialized that the Court

3

Dokdo islets a treasure trove of resources, http://english.chosun.com/site/data/html_dir/ 2005/03/20/2005032061011.html (last visited Sept. 20, 2009).

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should take up the dispute.4 This gesture has been well-received by other governments. South Korean officials, on the other hand, reject submitting the case to the Court whenever Americans mention that option. They apparently do not want to risk that the Court would rule against South Korea. One element in their caution seems to be that the Japanese Peace Treaty did not mention Dokdo. The third option is a negotiated settlement between South Korea and Japan. There seems to be little discussion of a negotiated settlement of the dispute. There are officials in the South Korean government who are thinking about such a negotiation; but the government has said or done little to prepare the public for such an option. Japan seems more amenable to negotiations. Japanese scholars such as Kentaro Serita have written informative articles on a negotiated settlement with ideas that seem to be worth consideration by the South Korean and Japanese governments. In examining the option of negotiations, Dr. Serita and others have made the important point that the territorial dispute is about more than the islets (some would use the term “rocks”) that the two countries claim as Dokdo and Takeshima. It also is about ownership of the sea area around the islets and exploitation of the fishing and other natural resources in that sea area. Moreover, it seems that another element in this dispute is the name to be given to the sea between Korea and Japan where the islets are situated. Korea calls it the East Sea. Japan calls it the Sea of Japan. Part of the dispute is the policies of the South Korean and Japanese governments to claim their 200 mile Exclusive Economic Zones (EEZ) from starting points of the small islands off their east and west coasts respectively. The result of this is that there is no agreed upon boundary defining the South Korean and Japanese EEZs and the area of overlap between them.5 The most conciliatory and constructive policy for the South Korean and Japanese governments to take on this matter would be to agree that they would start their EEZ claim from their littoral coasts rather than the small islands out to sea. Or, one of the governments could take this position, which would put huge international pressure on the other government to follow suit. If Japan announced that it would adopt its west coast as the starting point for its EEZ claim, and South Korea rejected such a quid pro quo, support in third countries for its claim to Dokdo would suffer. The same would be true if South Korea unilaterally proclaimed its east coast as the starting point for its EEZ; Japan would receive little third country support for its Takeshima claim.

4 5

Soung-ah Choi, Koreans wary of Japan’s intent, Korea Now, Apr. 2, 2005, at 8–9. Kentaro Serita, The Takeshima Dispute: A Radical Proposal, 38 Japan Echo 33 (2007).

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The great benefit of using littoral coastlines as EEZ starting points would be that this would reduce the area of overlapping EEZ claims considerably. There can be little doubt that the smaller the overlapping area, the greater the prospects would become that Japan and South Korea could negotiate agreements for the exploitation of any mineral resources in the overlapping zones. Moreover, Japan would have less interest in its Takeshima claim and might be more willing to give up its claim as part of a negotiated settlement in which it gained other benefits. If the island and EEZ disputes could be settled, the way undoubtedly would be eased to solve the fishing problem between South Korea and Japan. There have been fishing agreements between South Korea and Japan; but, according to Dr. Serita, the two countries have not abided strictly by their terms. South Korean fishing boats, according to Serita, frequently have violated the agreements by fishing in Japan’s exclusive fishing zone.6 Moreover, the two governments have not dealt effectively with over-fishing, which is depleting the stocks of commercial fish. The depleting of the fish population is a problem in many parts of the globe today. The Dokdo and EEZ disputes undoubtedly are a hindrance to South Korea and Japan in dealing with this issue. It also seems to me that any attempt to negotiate a settlement also should include an agreement on the official name of the body of water between Japan and Korea. South Korea is pressing aggressively for international organizations to replace their designation of the Sea of Japan with the Korea-favored East Sea. Seoul has succeeded in persuading the International Hydrographic Organization to remove “Sea of Japan” from its main oceanographic publication and leave the body of water between Korea and Japan undesignated.7 Yet if South Korea has the stronger claim to Dokdo, it seems to me that Japan has a stronger claim that the waters should be designated as the Sea of Japan rather than the East Sea. Outside Korea, geographers and mapmakers, especially in the West, have cited and shown the sea as the Sea of Japan since the 18th century. Prior to that time, mapmakers used three different designations: East Sea, Sea of Japan, and Sea of Korea.8 In the Library of Congress, both in the Foreign Affairs and National Defense Division of the Congressional Research Service Division and in the Library’s Geography and Map Division, the maps there identify the sea as the Sea of Japan. Only Koreans use the term “East Sea.” Japan’s case is bolstered by the fact that Japan has a much longer coastline on this body of water 6 7

8

Id. Neither East Sea Nor Sea of Japan, Dong-A-Ilbo, May 10, 2007, available at http://english.donga. com/srv/service.php3?biid=2007051026218&path_dir=20070510 (last visited Oct. 06, 2009). Ki-suk Lee, The Historical Precedent for the East Sea (Sea of Japan): An Invisible Placenaming War since 1992 (unpublished paper presented at the annual meeting of the National Council for Geographic Education) (Oct. 11–14, 1998).

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than does Korea. South Korea argues that this Sea should not be designated with the name of a single country and that East Sea is a neutral designation similar to the North Sea. The first point is arguable, but the second point is invalid. The North Sea has its name because of the northern latitudes in which it is situated. The designation “East” clearly relates to the coastline that this Sea is east of – the Korean coastline. The same is true of South Korea’s claim that the body of water off the west coast of Korea, between Korea and China, should be designated as the West Sea rather than the Chinese-designated and internationally accepted Yellow Sea. The difference between these two claims is that South Korea presses its case for “East Sea” hard in international organizations but seems to take a more limited and cautious approach toward its “West Sea” claim. It appears that the contrast is one of deference to China versus confrontation with Japan. A neutral term such as “East Asian Sea” or “Inner Pacific Sea” might be an appropriate compromise if it is proposed. Moreover, Russia’s views ought to receive consideration, since it is the third country with a coastline on the Sea of Japan. It also seems to me that any international consideration of South Korea’s case for East Sea ought to consider what seems to be an adjacent dispute. Some maps in the Library of Congress designate Tsushima Strait as the body of water separating southeastern South Korea and the main Japanese island of Kyushu; Tsushima Island is in the middle of this strait. Other maps designate it as the Korea Strait. If this apparent dispute is not settled along with the Sea of JapanEast Sea dispute, then this contention between South Korea and Japan will continue for the indefinite future. The compromise described would necessitate the South Korean and Japanese governments both accepting certain claims of the other side or agreeing to fair compromise provisions that would make a settlement achievable. Japan would have to accept South Korea’s claim to Dokdo, as Professor Serita suggests in his article. The two governments would have to set their starting points for their EEZ claims to minimize the extent of the overlap of EEZs. The South Korean government would appear to bear special responsibility for restraining illegal activities by South Korean fishing boats, including recognizing Japan’s right to enforce Japanese law toward South Korean fishing boats that enter Japan’s EEZ without permission. It seems to me, too, that South Korea could facilitate a settlement that would affirm its claim to Dokdo if it recognized “Sea of Japan” as the name of the waters between Korea and Japan, perhaps in exchange for Japan’s recognition of Korea Strait as the body of water between the Pusan region of South Korea and Kyushu; or alternatively, a truly neutral designation to replace Sea of Japan and acceptance of the more neutral Tsushima Strait. This is only one of possible compromise formulas. A settlement of the islet dispute is more likely if it is part of a multi-issue negotiation that would allow trade-offs and quid pro quos between South Korea and Japan.

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III. South Korea’s Choice: Settlement-Reaching Diplomacy or Continuous “Japan Bashing” South Korea’s role on the island dispute with Japan is, first, that it not only involves policy toward the dispute itself but also involves three other important elements. One is the apparent South Korean view that the dispute is part of a broader conflict or at least competition with Japan. The second more extreme element is the contention of many South Koreans is that Japan is going to repeat its history of aggression against Korea. When I spoke for the U.S. State Department in Korea in December 2001 on the subject of East Asia’s role in the war with Islamic terrorism, I referenced in my prepared remarks of Japan’s decision to send units of its Maritime Self-Defense Force into the Indian Ocean to support U.S. military operations in Afghanistan. There are strong sentiments by some in Korea who view Japan’s expansion of its military activities – even in support of the United States – portend Japan’s future militarization and a threat of military aggression against its neighbors. Many South Koreans consider Japan’s Takeshima claim to represent a first step in a new Japanese expansionist policy toward Korea. The third element can be described as “attitude” – the way in which the South Korean government and elements of the South Korean body politic react to Japanese policy initiatives toward the dispute. South Koreans exhibit an emotional and strident reaction to practically any Japanese action related to Dokdo, whether it be a Japanese government reiteration of its claim or some action by local Japanese governments or Japanese civic groups. One example was the vocal denunciations of Japan in March 2005 in response to the proclamation of “Takeshima Day” by Shimane Prefecture in Japan and the press conference by Japan’s Ambassador to South Korea in which he answered a reporter’s question on Dokdo by reaffirming Japan’s claim. The Takeshima Day proclamation is an example of acts by both Japanese and South Koreans that most Americans would describe as irritants. South Korea’s popular “Dokdo Is Our Land” song, the Dokdo stamp, and the popular “Save Dokdo” video game (in which the players destroy a battalion of Japanese invaders) are other examples. The Japanese tend to treat such South Korean acts as irritants. The Japanese government has not propagandized the issue to the Japanese public. There seems to be little Japanese public knowledge outside those coastal prefectures involved in fishing near the islets.9 In contrast, the South Korean reaction often seems to treat these as major provocations deserving of a strong government and/or Korean public response. In March 2005, there were demonstrations at the Japanese Embassy in Seoul in which several Koreans committed acts of self-mutilation,

9

Choi, supra note 4, at 8–9.

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including the cutting off of fingers, disemboweling, and self-immolation by fire.10 There were apparently no references to President Roh Moo-hyun or any other South Korean leader stating that these acts were wrong and urging South Koreans to desist from committing any more of them. South Korean leaders, conversely, had plenty of harsh criticism of Takeshima Day and the Ambassador’s statement (remember that the Ambassador merely re-stated claims, and he did that in response to a reporter’s question.) The government described these as “Japan’s degenerative actions.” Unification Minister Chung Dong-young appeared on national television, reading a statement that: “The recent series of actions by Japan makes us wonder whether Japan has an intention to coexist with its neighbors as a peaceful force in Northeast Asia.”11 The South Korean reactions and responses in the Dokdo dispute seem to fit a broader pattern of South Korean reactions and responses in other contentious issues with Japan. A predominant South Korean attitude seems to be that issues like the islet dispute, Japan’s dealing with its history, and Japanese policy toward North Korea are a “zero sum game;” in short, measures and policies on either the South Korean or Japanese side should be judged on whether they weaken the position of the other side rather than whether they promote positive prospects of a compromise settlement. Thus, South Korean policy measures and/or actions must gain an advantage over Japan. The preferred tactic seems to be across-the-board criticism of Japan on these issues. South Koreans react very critically to Japanese actions or policy measures which could be considered negative. They choose to ignore positive measures coming from Tokyo. South Korea, too, often seems to focus on the more peripheral issues in its disputes with Japan rather than the issues of real importance, and this focus usually seems to enlarge the volume of South Korean criticisms of Japan. Taking Japanese history issue as one example, South Korea’s position seems to give as much emphasis to the issue of Japanese government apologies and financial compensation to former comfort women as it does to the question of Japanese acknowledgment of its history in the first half of the 20th century. This emphasis went so far in 1997 when the South Korean government and government-supported non-governmental groups (NGOs) threatened and intimidated a small number of former Korean comfort women who expressed a willingness to accept aid from Japan’s Asian Women’s Fund, including a letter of apology from the Japanese Prime Minister. The campaign to intimidate former comfort women who might accept Japanese aid grew so intense that the Asian Women’s Fund abandoned its efforts to advertise its programs in South Korea and extend them to former Korean comfort women.

10 11

Jeremy Kirk, Island dispute weighs down ties, Washington Times, Mar. 18, 2005, at 816. Choi, supra note 4.

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South Korea’s public positions on the Japanese history issue often appear as broad, general criticisms that sometimes cross the line into denunciations. The criticism seldom is specific and constructive in the sense that there are few suggestions from South Korea to Japan on measures that the Japanese government could take that would improve how it deals with Japan’s history. South Korean criticism of Japanese history textbooks, for example, seldom makes suggestions for inclusion of specific issues or changes in the way in which the textbooks explain historical episodes and events. South Korea joins China in denouncing Japanese Prime Ministers’ visits to Yasakuni Shrine, but South Korean government officials and civic leaders do not make any proposals regarding how the issue of the 14 Class-A war criminals should be ameliorated. I have yet to hear any detailed critique from Seoul of the presentation of Japanese World War II history by the museum at Yasakuni (which offends many visiting Americans, British, and Australians), including constructive proposals for changes in the museum’s exhibits and inscriptions. South Korea’s approach to the Japanese history issue is devoid of any acknowledgment of the positive measures and acts of Japanese government leaders. In the summer of 2005, there apparently was no positive acknowledgement from South Korea of Emperor Akahito’s laying of a wreath at the monument to Koreans who died in the battle for Saipan in June and July 1944. When the Japanese Ambassador to the Philippines attended the Martyrs Day commemoration in Manila in February 2006 and apologized for the nearly 100,000 Manilans who were massacred by Japanese troops in February 1945 as American forces approached Manila, the Chinese media reported the apology; but the South Korean government and media were silent. Again, I noticed South Korean silence when Emperor Akahito acknowledged Japanese misdeeds when he visited Singapore in 2006 – where the Japanese army systematically executed up to 100,000 Singaporeans in 1942. The Korean media has reported the effort by history revisionists in Japan to revise the 1993 Kono Statement on comfort women. The South Korean government rightly has criticized this campaign, as has the U.S. government and Congress. Seoul, however, never supported the Kono Statement, viewing it and the Asian Women’s Fund as an inadequate Japanese response to the comfort women issue. Only now that the revisionist campaign is underway in Japan can South Korea find any positive elements in the Kono Statement. It appears that the positive South Korean (and Chinese) pronouncements on the Kono Statement, the Asian Women’s Fund, and the Japanese Prime Ministers’ letters of apology to former comfort women likely would have blunted any attempt to reverse them by history revisionists in Japan. A similar pattern exists in South Korea’s approach to Japan’s policy toward North Korea. South Korean public pronouncements almost exclusively criticize Japan for raising the issue of North Korean kidnapping of Japanese citizens at

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the six party nuclear talks. One never hears South Korean criticism of North Korea’s repeated demand at the six party talks that the United States remove North Korea from the U.S. list of state sponsors of terrorism even though the kidnapping of citizens of another states is universally considered to be an act of international terrorism. Once again, the South Korean approach toward Japan on the kidnapping issue is one of broad-brush criticism, a blanket endorsement of North Korea’s demand to be removed from the U.S. terrorism list without any accountability for the kidnapping of Japanese, and the absence of constructive suggestions to Japan of how Japan could improve its diplomatic strategy on the kidnapping issue. Another example was South Korea’s reaction to the North Korean missile test of July 4, 2006. The Roh Moo-hyun administration’s criticism of North Korea was mild to say the least. In contrast, it issued harsh criticism of Japan when Japan took the lead in the United Nations Security Council in securing a resolution imposing sanctions on North Korea. What are the effects of South Korea’s sweeping criticisms of Japan, its emotional responses to Japanese irritants, its lack of constructive suggestions to Japan, and its unwillingness to acknowledge positive deeds by Japan? It seems that the most serious effect is to damage prospects that Japan will adopt more positive policies on these issues. Instead, South Korea’s approach has produced a backlash in Japan. The Japanese respond that South Korea and China only seek to criticize Japan without end by keeping the contentious issues alive. The growing strength of the history revisionist movement in Japan is one manifestation of this backlash. Japan’s no-compromise position on the North Korean kidnapping issue is another. South Korea’s approach also appears to strengthen the U.S. view that the United States should stay neutral and non-involved in the South Korea-Japan disputes. A strong American view is that there is substantive merit to some – but not all – of the issues that South Korea raises with Japan. The House of Representatives has expressed itself on the comfort women issue and the Tokyo War Crimes Tribunal’s convictions of the Class A war criminals who are enshrined at Yasakuni. The history revisionists in Japan now should realize that if they cross certain “red lines” in their campaign, there will be a negative American reaction. Some policy analysis in Washington have made constructive suggestions to Japan to adjust its diplomatic strategy on the North Korean kidnapping issue to a more structured and rational one. Nevertheless, there is a strong reluctant to support the tactics used by South Korea in its dealings with Japan and endorse all of the issues raised by Seoul. The view is that these tactics are too extreme and are counter-productive. The question is raised as to whether the South Korean government, South Korean political leaders, and influential South Korean non-government groups really seek a resolution of these issues with Japan; or, conversely, whether they seek to perpetuate these issues so they

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can criticize Japan in the heaviest possible ways for the longest possible time. American observers are suspicious that South Korean politicians find “Japanbashing” politically rewarding for them in public opinion polls and in election campaigns. One wonders whether the apparently growing anti-Japan policies of South Korea reflect a policy objective of developing closer ties with China at Japan’s expense.

IV. The Japan Remilitarization Issue It would appear that more balanced South Korean dealings with Japan would influence the United States to take more seriously the apparent central South Korean fear that Japan’s policies toward the island dispute, the history issue, and North Korea reflect a growing desire in Japan to throw off the shackles of the post-World War II restraints on its military power and greatly enlarge its military power and role in East Asia and globally. New South Korea-Japan disputes appear in the offing over the Abe’s government’s intentions to seek an amendment to Article 9 of the 1946 constitution (the “no-war” clause) and purchase F-22 jet fighters from the United States (the most advanced fighter in the U.S. Air Force). These likely will aggravate the existing disputes discussed in this chapter. South Koreans periodically accuse American experts – and of course the Bush administration – as being “naïve Americans” for encouraging Japan to take on an expanded military-security role, which they believe will produce a new, militarily aggressive Japan. In order to assure South Korea that the United States is mindful of this issue and South Koreans concerns, it seems that the United States would have to do at least two things. One is to watch closely future developments in the history issue in Japan and make it clear that if the history revisionists cross certain “red lines” in their campaign to absolve Japan of major guilt for its record from 1905 to 1945, the United States would respond. Relatedly, Japan could be warned that the crossing of these “red lines” could affect negatively the Japan-U.S. security relationship. The recent editorial in the influential U.S. publication, Defense News, expressing doubt about a sale of F-22 fighters to Japan because of the Japanese government’s inadequacies on the history issue could be cited as a warning in this connection. The second task is to continually examine whether there is hard, convincing evidence that Japan is changing in ways that would foster threatening remilitarization. Japan’s dealings with the history issue is one criterion to evaluate the question of evidence. Such evidence also would have to include: • Changes in Japan’s political system away from the multi-party parliamentary democracy in Japan today toward a unitary, authoritarian system. This

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would include the growth of extreme rightist organizations, growing threats and intimidation by these organizations toward moderate politicians and the press, the extension of government controls over the press, speech, and assembly. • Major changes in military policy such as increases in military spending far beyond the current level of one percent of Gross National Product; a significant increase in military manpower levels beyond the current authorized level of less than 200,000; and the acquisition of multiple weapons systems like aircraft carriers, heavy bombers, and long-range missiles that would give Japan an offensive capability against neighboring countries. • A significant buildup of the Japanese army in terms of manpower and offensive equipment would constitute an especially worrisome development, given the paramount role the army played in Japan’s expansionist policies in the first half of the 20th century. • A rise in Japanese political sentiment to end the Japan-U.S. Security Treaty and expel U.S. forces stationed in Japan – comparing any such scenario to Japan’s decision to abrogate the Anglo-Japanese defense treaty after World War I. Much of this type of evidence appeared in the late 1920s and early 1930s and that the United States and much of the rest of the world ignored it. Today, it seems that it is difficult if not impossible to make a case that any of this evidence exists. The debate in Japan today on the history issue in fact is a good sign. Nevertheless, Americans and South Koreans should keep a watchful eye and frequently exchange assessments of whether or not such evidence is emerging. In the absence of real evidence, we should not rush into irrational judgments regarding Japan’s future military role. Objective South Korean judgments of this evidence should help to guide a fair and balanced policy toward Japan toward settle-reaching policies and away from continuous “Japan bashing.” It is hoped that a continuing discussion within South Korea and between South Koreans, Japanese, and outside experts of policies and strategies will ameliorate these disputes and improve Korean-Japanese relations. If the South Korean and Japanese governments are not prepared to move in this direction, then other forums can begin a Track II process of debate and consultations that ultimately the two governments will have to listen to.

Chapter IX Similarities and Differences between the Korean-Japanese Dokdo Disputes and the Sino-Japanese Diaoyudao Disputes Ji Guoxing* I. Introduction The sovereignty disputes over Dokdo between Korea and Japan and over Diaoyudao between China and Japan are two outstanding issues affecting bilateral relations and peace and stability in Northeast Asia. The ownership of Dokdo and Diaoyudao relates respectively to Korean and Chinese national sovereignty and territorial integrity and the delimitation of maritime jurisdiction in the Sea of Japan (East Sea) and in the East China Sea. The Korea-Japanese Dokdo disputes and the Sino-Japanese Diaoyudao disputes have many similarities. The two islands are historically discovered and administered respectively by Korea and China and are a part of Korean and Chinese territory; the arguments of ownership over the two islands asserted by Japan are they are “terra nullius,” “discovered” and “effectively occupied” by Japan; and Japan’s occupation of the two islands is through the act of war (the 1905 Russo-Japanese War and the 1895 Sino-Japanese War) and is a colonialist and imperialist act. The differences between the Dokdo disputes and the Diaoyudao disputes are: firstly, the different attitude taken by the United States towards the two disputes. The U.S. administration has appeared to be neutral towards the Dokdo disputes, whereas it has been biased towards Japan in the Diaoyudao disputes. Secondly, the Republic of Korea now has actual control over Dokdo, whereas Japan now has actual control over Diaoyudao. This situation is inseparable from the U.S. attitude. The comparison between the two disputes will further increase our consciousness on the appraisal of historical facts and the upholding of international justice, and enlighten us in exploring the approaches for the settlement of the disputes. * Professor and Director of the Marine Policy Project of the Pacific Rim Research Center, Shanghai Jiaotong University.

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II. The Korea-Japanese Dokdo Disputes 1. Brief Historical Facts Dokdo (Takeshima) Islands (37 15’ N, 131 52’ E) are situated in the southwestern part of the Sea of Japan (East Sea), 47 nm (nautical miles) southeast of Korea’s Ulleungdo and 86 nm northwest of Japan’s Oki Island. They used to be called Liancourt Rocks in western atlases after the Frenchman who discovered them for Europe in 1849. Dokdo consists of two tiny uninhabitable rocky islets with 33 rock formations above the water at low ebb surrounding them, and have a combined land area of 1.3 square kilometers. The western islet is 157m (meters) high and is shaped like a sugarloaf, and the eastern islet is somewhat lower and flat. “Both islets are barren and rocky, with the exception of some grass on the eastern islet, and their coasts consist of precipitous rocky cliffs.”1 Both have limited water sources, and have been only temporarily inhabited during the summer by fishermen. Dokdo is near rich fishing grounds and has served as a fishing strongpoint for harvesting abalone and seaweed, and hunting seals and sea lions. Dokdo is located on the Yamato Rise, which is the most prominent topographic feature in the Sea of Japan. “The Tsushima or Ulleung basin extends into the southern part of the Sea of Japan. The northern portion of this basin has a maximum of 3,000 meters of sediments, but is overlain with deep water. Surveys in the basin indicate that sufficient conditions for hydrocarbon entrapment do exist, in spite of the thin sedimentary layers.”2 Historical facts show that apart from the period when Korea was under Japan’s occupation in the years 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 is an appendage of Ulleungdo all through the ages. Ulleungdo lies about 135 kilometers east of the Korean peninsula. Records from the reign of King Sejong in the 15th century listed both Ulleungdo and Dokdo as belonging to Uljin County.3 In 1900, King Kojong issued Royal Decree No. 41, which explicitly designated Dokdo Islands to be under the administrative jurisdiction of Kangwon 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 1

2

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J.R.V. Prescott, Maritime Jurisdiction in East Asian Seas, 4 Occasional Papers of East-West Environment and Policy Institute 47 (1987). Douglas M. Johnston & Mark J. Valencia, Pacific Ocean Boundary Problems: Status and Solutions 113 (1991). See Myung-Ki Kim, A Study on Legal Aspects of Japan’s Claim to Dokdo, 28 Korea Observer 359, 363 (1997).

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two islands are uninhabited and noted that Oki Island “marked the northwestern boundary of Japan,”4 thus acknowledging that Japan did not claim sovereignty over Dokdo and Ulleungdo. After the 1895 Sino-Japanese War, Japan began to expand its control over Korea, 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 Shimane Prefecture issued a notice on February 22, 1905 declaring Takeshima belonging to Shimane Prefecture. The document issued by the Japanese Ministry of Foreign Affairs in March 2004 says, “In 1905, Japan reaffirmed its intention to possess Takeshima by a Cabinet decision in January, followed by a notification by Shimane Prefecture in February, officially incorporating Takeshima as part of Shimane Prefecture. Subsequently Takeshima appeared on the State Land Register, and a system of approval for sea lion hunting on Takeshima was introduced, which continued until its termination in 1941 due to the Second World War.”5 But the above document is self-contradictory. Since Dokdo was terra nullius in 1905, it shows Japan did not display any act of sovereignty. The document states, “At the latest by the middle of the 17th Century, Japan had established sovereignty of Takeshima based on effective rule.” In fact, as Prof. Jon Van Dyke argues, “It would appear that Japan is ‘estopped’ from now arguing that it had established sovereignty at an earlier period.”6 Korea refutes the Japanese annexation by saying that “Korea exercised territorial sovereignty over Tok-Do islands continuously and peacefully up to February 22, 1905, when a few Japanese imperial government officials annexed it to Japanese Shimane Province in some clandestine manner.”7 Japanese troops entered and were stationed in the Korean territory in the early 20th century. The seas surrounding Dokdo and Ulleungdo 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.

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See Yong-Ha Shin, A Historical Study of Korea’s Title to Dokdo, 28 Korea Observer 337 (1997). Ministry of Foreign Affairs, Gov’t of Japan, The Issue of Takeshima (2004), http://www .mofa.go.jp/region/asia-paci/takeshima/index.html (last visited Sept. 28, 2009). Jon M. Van Dyke, Legal Issues Related to Sovereignty over Dokdo and its Maritime Boundary, 38 Ocean Dev. & Int’l L. 157, 157–224 (2007). Young-Koo Kim, Northeast Asian Maritime Boundaries and Islands Disputes 73 (1997).

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On December 1, 1943 the U.S., Great Britain, and China issued the Cairo Declaration, which stated: “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 first World War in 1914. . . . Japan will also be expelled from all other territories which she has taken by violence and greed. The aforesaid three great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent.” On July 26, 1945, the U.S., Great Britain, and China issued the Potsdam Proclamation, which stipulated, ”The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.” The status of “minor islands” such as Dokdo would be subject, therefore, to the decision by Allied Powers based on historical facts. After entering and being stationed in Japan, the Supreme Commander for the Allied Powers issued a series of instructions. The instruction issued on January 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 was removed from Japanese control. The instruction issued on September 16, 1947 completed the Allied Powers’ act of occupying Dokdo, and designated the islets as a bombing range for the Far East Air Force.8 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 wounding 6 other Koreans fishing in the area. After the incident, the Korean government immediately took measures to extend its administrative authority to the island.9 Since then, Dokdo has continuously been under the control of Korea. On January 18, 1952, Dokdo was included in the so-called Rhee Line in a presidential proclamation which defined South Korea’s sovereignty over the adjacent seas of the Korean peninsula. Korea built wharf facilities on the islands in 1996 and a lighthouse in 1997 and routinely conducts naval surveillance there. Although the U.S. proclaimed that it would take a hands-off policy towards the territorial dispute over Dokdo, “the legal implication of the U.S. position on the issue of the sovereignty of the Liancourt Rocks should be understood in conjunction with the facts that the United States, initially the U.S. Department of State, took the primary role to draft the San Francisco Peace Treaty for the purpose of designating the post-World War II territorial configuration in East Asia.”10 8

9 10

Seokwoo Lee, International Law and the Resolution of Territorial Disputes over Islands in East Asia 244–245 (July 2001) (unpublished Doctoral Thesis, St. Antony’s College, University of Oxford) (on file with author). Dyke, supra note 6, at 79. Lee, supra note 8, at 277.

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2. Different Positions of Korea and Japan Korea’s claims of Dokdo are based on: • Korea was the first discoverer of Dokdo, and displayed acts of sovereignty in administering Dokdo for a long time in history. • Dokdo is an appendage of Ulleungdo. Geographically, Dokdo is much nearer to Ulleungdo than Japan’s Oki Gunto. Based on the principle of proximity, Dokdo belongs to Ulleungdo. • The actual control of Dokdo by Korea. Korea has occupied Dokdo since 1948 and has controlled Dokdo more than a half century. • Japan’s acquiescence for many times towards Korea’s sovereignty over Dokdo. • Japan’s annexation of Dokdo in 1905 is linked with Japan’s military expansionism and its conquest of Korea, making Korea unable to protest over the annexation. Japan’s claims of Dokdo are based on: • Japan’s annexation of Dokdo into Shimane Prefecture in 1905 in the name of terra nullius. • Japan’s actual control of Dokdo during 1905–1945. • Japan’s continual protests over Korea’s occupation of Dokdo in the past more than a half century. 3. Legal Analyses of the Sovereignty Disputes a. “terra nullius” Japan asserts that Dokdo was terra nullius before 1905 when it was incorporated into Shimane, but this assertion can be fully negated by the acts of sovereignty Korea long displayed over Dokdo 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 exercise of sovereignty on Dokdo before the date is 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 its sovereignty on Dokdo. b. “Effective Occupation” The requirements of effective occupation on such remote and uninhabited islets as Dokdo should not be strict. Korean fishermen’s irregular landing in history provides enough evidence for displays of sovereignty and occupation. In the Award on the Case of Eastern Greenland between Denmark and Norway in 1933,

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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.”11 c. “Appendage” or “Dependency” Dokdo is a dependency of Ulleungdo. The factor 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 for the Court decision is “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.”12 The Court adopts a similar attitude in the 1992 Case of Gulf of Fonseca. The case involved a dispute over sovereign ownership of several small islands in the Gulf of Fonseca, which is located where the boundaries of El Salvador, Honduras, and Nicaragua meet. The Court’s conclusion is that “Honduras was treated as having succeeded to Spanish sovereignty over El Tigre, and El Salvador to Spanish sovereignty over Meanguera and Meanguerita,” with Meanguerita being as an “appendage” to or “dependency” of Meanguera.13 d. “Prescription” Japan holds that its control and usage of Dokdo during 1905–1945 gives it a right over 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.14 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.”15 Acquiescence has been defined as “letting another country assume and carry out for many years all the responsibilities and expenses in connection with the territory concerned,” which “disqualifies the country concerned from asserting the continued existence of the title.”16 As 11

12 13

14 15

16

Legal Status of Eastern Greenland (Den. v. Nor.), 1933, P.C.I.J. (Ser. A/B) No. 53, at 46 (Apr. 5). Minquiers and Ecrehos (Fr. v. U.K.), 1953, I.C.J. 71 (Nov. 17). Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.; Nicar. intervening), 1992 I.C.J. 92, 579, para. 368 (Sept. 13). Van Dyke, supra note 6, at 5. D.H.N. Johnson, Acquisitive Prescription in International Law, 27 Brit. Y.B. Int’l L. 332, 343–348 (1950). Temple of Preah Vihear (Cambodia v. Thail.), 1962 I.C.J. 39, 45 (June 15) (separate opinion of Judge Alfaro).

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Korea was under Japanese rule during 1905–1945, it was impossible for Korea to lodge non-acquiescence and other protests. On the contrary, Japan 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 Ulleungdo 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.”17 Maps published by Japan’s Ministries of the Army and Navy in late 19th century positioned Dokdo outside Japanese territory.18 Since the early 1950’s 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 part of the 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.”19 This has been seen by many as a waiver by Japan of its claim, leading to the view that Japan is estopped from continuing to raise the claim. 4. Dokdo’s Impact on Delimitation The ownership of Dokdo would affect the maritime boundary of the Exclusive Economic Zone (EEZ) and continental shelf in the Sea of Japan (East Sea) between Korea and Japan. The United Nations Convention on the Law of the Sea on island entitlements is vague and ambiguous. The Convention grants islands to have a territorial sea, contiguous zones, EEZ and continental shelf in the same way as land territory; but denies shelf and EEZ rights under Article 121(3) to “rocks which cannot sustain human habitation or economic life of their own.” The interpretation and application of the provisions have virtually been left to state practice. Islands could be given full effect, or a limited and partial effect, or no effect. In case Dokdo is given full effect, “If South Korea or Japan were able to gain exclusive title to these islets, they would also secure title to surrounding seas measuring 18,545 square nm.”20 Regarding Dokdo’s impact on delimitation, Korea holds that Dokdo is entitled to have a 12 nm territorial sea, and that in view of the fact that Ulleungdo is fully entitled to claim a 200 nm EEZ and when Korea’s EEZ is delimited with Ulleungdo as the basepoint, Dokdo is naturally included within the Korean

17 18 19 20

Shin, supra note 4, at 345–346. Id. at 346. Hideki Kajimura, the Question of Takeshima/Tokdo, 28 Korea Observer 423, 465 (1997). Prescott, supra note 1, at 47.

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side. Japan, on the other hand, asserts that Dokdo should have full effect with a 200 nm EEZ; and that Japan’s EEZ should take Dokdo as its basepoint and be delimited between Dokdo and Korea’s Ulleungdo. Since mid-June 2006 when the Dokdo disputes escalated, Korea has changed its attitude as a means of defense, saying that Dokdo, with full effect and 200 nm EEZ, should be taken as Korea’s basepoint, and that the EEZ line should be delimited between Dokdo and Japan’s Oki Islands. One issue related to Dokdo is the name of the sea where Dokdo is situated. Korea says the name “Sea of Japan” is a legacy from Japan’s imperialism, aimed at converting the sea into some sort of an inland lake through territorial expansion. In the 1870s and 1880s, official maritime charts made by the Japanese navy often used the “Sea of Korea” and “West Sea of Japan” at the same time, referring to each coastal area. It was not until the Russo-Japanese War (1904– 1905) that the term “Sea of Japan” gained wider acceptance.21 Korea contends, as an interim measure pending a final agreement between the two countries on a common designation, the two names “East Sea” and “Sea of Japan” should be used simultaneously in all official documents, maps and atlases.

III. The Sino-Japanese Diaoyudao Disputes22 1. Brief Historical Facts The Diaoyudao (Senkaku) sovereignty controversy is an outstanding issue between China and Japan. The Diaoyudao Islands consist of five uninhabited islets and three barren rocks, located approximately 120 nm northeast of Taiwan, 200 nm east of the China mainland coast, and about 200 nm 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 Diaoyudao (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.

21

22

Giving Legitimate Name to ‘Sea of Japan’, Korea Herald, Apr. 11, 2001, available at http://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=001&oid=044&aid=0000 015010&. For a full account, see Ji Guoxing, The Diaoyudao (Senkaku) Disputes and Prospects for Settlement, 4 Korean J. Def. Analysis 285 (1994).

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Ryukyu’s kings were crowned by 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.”23 It was more specifically stated in the logbooks of Chinese investiture envoys sent to the Ryukyus that, “These islands belong to China, and that the demarcation line between China and the Ryukyu Islands lies between Chiwei Dao and Kume Island.”24 There is a native Ryukyu record of 1708 – A Geographic Guide in Outline – written by Cheng Shun Tse, the most renowned scholar of Ryukyu in his time, which described the navigation route from Fuzhou to Naha, and when referring to Kume Island, called it “the garrisoning hill at the southwest border of Ryukyu.”25 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.”26 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 turning this former colony of Shimazu into one of the Tenn system, and in 1879, Japan annexed the former kingdom as the prefecture of Okinawa. As the Qing Dynasty of China protested against the annexation of the Ryukyus, former U.S. President Ulysses S. Grant, in his private capacity, mediated negotiations between the Japanese and the Qing governments on the dispute. During the negotiations, the Chinese side put forward a formula to divide the Ryukyus into three parts: stipulating the Amami Islands as Japanese

23

24

25 26

Diaoyu and Other Islands Have Been China’s Territory Since Ancient Times, Beijing Review, Jan. 7, 1972 at 13. Id. Chiwei Dao is at the east end of the Diaoyudao Islands, while Kume Islands, belonging to the Ryukyus, is situated about 40mm west of Okinawa and about 150mm east of the Diaoyudaos. Id. Choon-ho Park, Continental Shelf Issues in the Yellow Sea and the East China Sea, 15 Law of the Sea Institute Occasional Paper 38 (1972).

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territory; Okinawa and its surrounding islands as the territory of an independent Ryukyu Kingdom; and the Miyako and Yaeyama Islands in the south as Chinese territory. “As a counter-measure, the Japanese side proposed to divide into two parts: from the Okinawa Islands and to the north were to be Japanese territory, and the Miyako-Yaeyama Islands Chinese territory.”27 Since the Diaoyudaos were beyond Ryukyu territory, they naturally were not treated as objects of negotiation in either Japan’s or in China’s proposals. An agreement to divide the Ryukyus into two parts between the Qing Dynasty and Japan was initialed in 1880. However, the agreement did not go into effect because the Qing Emperor put off its ratification due to his opposition to the conditions attached to the agreement. The event ended up with nothing definite, thus the question was shelved until the Sino-Japanese War broke out. Thus, it is the fact that even after the Meiji Reform, until the outbreak of the Sino-Japanese War, Japan had not even thought of claiming title to the Diaoyudaos or of challenging China’s title to the islands. Afterwards, there were a series of calculated measures on Japan’s side bearing upon the territorial status of the Diaoyudao Islands. In 1884, Japan alleged that Diaoyudao 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 Diaoyudao 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, “Since the islets were situated close to China where reports of the Japanese occupation of Chinese islands in the vicinity of Taiwan were circulating to solicit the Chinese government’s attention. Erection of boundary markers would arouse China’s suspicion and would better await some other occasions.”28 It was not until January 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. In its letter to the Foreign Ministry dated December 27, 1894, regarding approval of the annexation of the islands, the Home Ministry explained, “the present circumstances are already different from the past.”29 On April 17, 1895, the Treaty of Ma Guan (Treaty of Shimonoseki) was signed between China and Japan formally concluding the Sino-Japanese War. 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 27

28 29

Kiyoshi Inoue, The Senkaku Islands and Other Islands Are China’s Territory, Beijing Review, May 12, 1972, at 20. Hungdah Chiu, An Analysis of Japan’s Claims over the Diaoyudaos 40–41 (1979). Id. at 42.

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would have made no sense. China is certain that “the Senkaku Islands appertained to Formosa at the time the Treaty was concluded and came into force.”30 Without the Sino-Japanese War, Japan would have been unable to occupy the Diaoyudao Islands. As Kiyoshi Inoue, a Japanese historian, said, one thing perfectly clear is “Diaoyu Dao and other islands were regarded as Japanese territory only after Japan had seized Taiwan and other places from Qing through the Japan-Qing War as part of a series of territories wrested from Qing.”31 In 1945 when the Second World War 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.”32 On October 26, 1945, China declared Taiwan as its thirty-fifth province. The return of Taiwan to China was also referred to in the San Francisco Peace Treaty of September 8, 1951, signed by Japan and the Allies. The Soviet Union did not sign the treaty, and the PRC was not invited to the conference. As for the Ryukyu Islands, which were surrendered to the United States on September 7, 1945, and had since been under military government authority, a trusteeship system under U.S. control was provided for in Article 3 of the San Francisco Treaty, which reads, “Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administrative authority, Nansei Shoto south of 29° north latitude (including the Ryukyu Islands).” 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 U.S. administration. China refutes Japan’s suggestion that Article 3 of the San Francisco Treaty includes the Diaoyudao Islands as part of Nansei Shoto south of 29° N. As the Diaoyudao Islands are part of the islands appertaining to Taiwan, China interprets the name Formosa to include the Diaoyudao Islands. 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.33 After the reported oil potentialities in the water areas of the Diaoyudao Islands in May 1969, the controversy over the islands escalated. Japan took some unilateral actions including revising maps and erecting boundary markers in 1969. In September 1970, a group of Taiwan reporters planted a Taiwan 30 31 32 33

Prescott, supra note 1, at 21. Inoue, supra note 27, at 21. Cairo Declaration, Dec. 1, 1943, in Dep’t St. Bull., Dec. 1943, at 393, 3 Bevans 858. Declaration of the Government of the People’s Republic of China on China’s Territorial Sea, Sept. 4, 1958, published in Collection of the Sea Laws and Regulations of the People’s Republic of China 197 (3d. ed. 2001).

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flag on one of the islands. Japanese policemen tore down the flag and forcibly evicted the reporters. This behavior bruised Chinese patriotic sentiment, and a “Protect the Diaoyudaos Movement” emerged in Taiwan, Hong Kong, and in major metropolitan centers of North American. On December 4, 1970, Beijing came out with a strong claim to the ownership of the islands. As the confrontation continued to be tense, the United States, as previous administrator of the Ryukyu Islands, was also required to clarify its stand on the issue. On September 10, 1970, the U.S. State Department said that the term “Nansei Shoto” as used in the San Francisco Treaty “was intended to include the Senkaku Islands,” and that any conflicting claims “would be a matter for resolution by the parties concerned.”34 On June 17, 1971, a reversion treaty was signed in Tokyo between Japan and the U.S., whereby Okinawa was to be restored to Japan. Before the reversion took place on May 15, 1972, the U.S. reclarified its stand in October 1971 as follows: “The United States believes that a return of administrative rights over those islands to Japan, from which the rights were received, can in no way prejudice any underlying claims. The United States cannot add to the legal rights of Japan possessed before it transferred administration of the islands to us, nor can the United States, by giving back what it received, diminish the rights of other claimants. The United States has made no claim to the Senkaku Islands and considers that any conflicting claims to the islands are a matter for resolution by the parties concerned.”35 The U.S. attitude was criticized by Japan for being too neutral and by China for being partial to Japan. Tension over the Diaoyudaos has occurred now and then during the past three decades. For example, during the negotiations for the Treaty of Friendship between China and Japan in 1978, some members of the Japanese Diet called for China’s recognition of Japan’s claim to the Diaoyudaos as the price for Japan’s signature. China at that time sent more than 100 fishing boats into the area carrying placards asserting Chinese ownership. After Deng Xiaoping said in Tokyo in October 1978 that “It does not matter shelving such an issue, and waiting for another decade,”36 the treaty was signed with no reference to the Diaoyudaos. In October 1990 when a Japanese right-wing political group received permission from the Japanese government to renovate a lighthouse on one of the islets, two Taiwanese fishing boats sought to land a delegation of politicians and athletes on Diaoyudao to reinforce the claim to the islands, but twelve Japanese vessels and two helicopters forced them to turn away after a five-hour standoff. Then protests against Japan’s claims to the islands mounted 34 35

36

Press Release, U.S. State Dep’t (Sept. 10, 1970). Telegram, State Dep’t File No. Pol 32–6 Senkaku Is, Taipei 2946, State Dep’t Records, Record Group 59 (June 17, 1971) (on file with U.S. National Archives and Records Administration). A news release from Xinhua News Agency, People’s Daily (Beijing), Oct. 26, 1978.

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in Taiwan, Hong Kong, and Macau. Beijing joined the criticism of Japan’s action, and reiterated that China held indisputable sovereignty over the islands. On February 26, 1992, China’s National People’s Congress enacted the first law on territorial waters and contiguous zones, which says that Taiwan and all islands including the Diaoyudaos pertaining to Taiwan are China’s territory. 2. Different Positions of China and Japan China’s claims of Diaoyudao are based on: • 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. • 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 over 2,000 meters. • 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 was an official act on China’s side. • 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 perspective of international treaties, as far as China is concerned, nothing that happened after 1895 can be considered relevant in undermining China’s long-standing claims. • 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. Paragraph 8 of the Potsdam Proclamation stipulates, “Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.” In the Joint Statement of 1972 between China and Japan on normalization, Japan made it clear that it “adheres to its stand of complying with Article 8 of the Potsdam Proclamation.”37

37

Nianlong Han, Diplomacy of Contemporary China 361 (1990).

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• 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.”38 Japan’s claims of Diaoyudao are based on: • 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. • 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 concluding the Sino-Japanese War by which China ceded to Japan, Formosa, together with all islands pertaining to it. • 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 Second World War 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. • “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.”39 3. Legal Analyses of the Sovereignty Disputes a. 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 38

39

Id. at 241; Statements of PRC’s Ministry of Foreign Affairs, December 30, 1971, Beijing Review, Jan. 7, 1972, at 12. Gerald W. Berkley, the Issue of Sovereignty over Diaoyudao 5, (unpublished paper for the 34th International Congress of Asian and African States, University of Hong Kong) (Aug. 23–27, 1993) (on file with author).

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The whole controversy hinges on the question whether the islands had been open to possession before 1895 when the Japanese cabinet made the incorporation decision. Apart from the evidence provided in early Chinese records and references, it would be highly improbable that a group of islets situated where they are could have remained unnoticed both by China and Japan up to 1884. The Japanese allegation that the islands were discovered by Tatsushiro Koga in 1884 appears to have now faded away even in Japan. The Imperial Edict issued in 1893 by the Empress Dowager of China is evidence that the major part of the Diaoyudao Islands had been designated as private property under Chinese law, since a private appropriation could not be effected if the land were not part of the granter’s territorial jurisdiction. 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. But in fact there exists the concept of “intertemporal law” in international arbitration and adjudication which is “[t]he interpretation of an international event or the explanation of an international treaty must suit the international law regulation in force at the time the event took place or the treaty was signed, and cannot be judged according to the regulations at the time of evaluation.”40 This has become an incontestable principle. The theory of international law may as well offer some guidelines for the settlement of the issue. “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.”41 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. b. 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 In spite of the Japanese assertion that the islands were acquired by Japan prior to the signing of the Shimonoseki Treaty, it is irrefutable that the islands were ceded to Japan in 1895 simultaneously with Taiwan as part of “the islands

40

41

Ye Shuliang, The Nansha Storm and International Public Law, 19 Economy and Law 27 (1988) (citing Ian Brownlie, Principles of Public International Law 132 (3d ed. 1979)). Brownlie, supra note 40, at 27–28 (citing Oppenheim-Lauterpacht, International Law 558 (8th ed. 1955)).

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appertaining or belonging to the said island” of Taiwan. In international law, this seizure cannot be taken as evidence of sovereignty. The Japanese claim was the direct result of the Japanese victory in the SinoJapanese War. As noted above, Japan hesitated to make this claim for ten years previously, in fear of possible friction with China, despite repeated requests by Okinawa Prefecture. This hesitation only ended in the eve of China’s defeat in the war. 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 December 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.”42 c. The inclusion of the Diaoyudao Islands in the Okinawa Reversion Treaty signed between Japan and the U.S. in 1971 cannot be taken as evidence of Japanese sovereignty over the islands Due to the inclusion of the Diaoyudaos into the jurisdiction of 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?”43 The U.S. itself clarified its stand that “a return of administrative rights over these islands to Japan, from which the rights were received, can in no way prejudice any underlying claims.” 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.”44 The Diaoyudao Islands in fact already separated themselves from Japan’s control after being occupied by U.S. troops in April 1945. After Japan accepted the Potsdam Proclamation and was committed to the 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 42 43 44

Chiu, supra note 28, at 47. Id. Berkley, supra note 39, at 5.

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over the Ryukyus and Diaoyudaos, as said by the U.S. and Japan, is not tenable legally. With the abrogation of the Shimonoseki Treaty and the restoration of Taiwan to China, it should be said that China’s sovereignty over the Diaoyudaos was regained; this sovereignty in form, however, was not yet restored due to U.S. occupation of the islands. With the end of U.S. occupation, China ought to have restored its sovereignty over them. 4. Diaoyudao’s Impact on 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 an EEZ and continental shelf. China’s Taiwan also holds that “The Diaoyudao Islands themselves are not entitled to have a continental shelf or EEZ, and thus have no significant legal effects on the boundary delimitation in the East China Sea.”45 Japan holds that the islands are entitled to have a continental shelf and intends to use them as base points for continental shelf claims on the East China Sea. In order to make the disputes over the Diaoyudao Islands not affect maritime jurisdictional delimitation, China and Japan could first reach agreement on their non-entitlement to an EEZ and continental shelf; and then “segregate” the islands with their 12 nm territorial seas, and shelve the issue for subsequent solution.

IV. Similarities and Differences between Dokdo and Diaoyudao 1. Similarities • Dokdo was first discovered by Korea, and Diaoyudao was first discovered by China. They were not terra nullius before the discovery by the Japanese as asserted by Japan. • Dokdo is an appendage of Ulleungdo and Diaoyudao is an appendage of Taiwan. They have been regular haunts of Korean and Chinese fishermen, who used these islands as storm shelters as well. • 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. • The sovereignty of Dokdo affects the jurisdiction delimitation between Korea and Japan in the Sea of Japan, and the sovereignty of Diaoyudao affects the 45

Fu Kuen-chen, International Law and China 223 (1991) (citing Ma Ying-jiu, New Law of the Sea vis-à-vis the Diaoyudao Islands and the Delimitation of the East China Sea 266).

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jurisdiction delimitation between China and Japan in the East China Sea. Japan stands for full effect of an EEZ and continental shelf for Dokdo and Diaoyudao, whereas Korea and China stand for no entitlements of an EEZ and continental shelf for the two islands. 2. Differences • Dokdo is under the actual control of Korea, and Diaoyudao is under the actual control of Japan. • There is a different attitude taken by the U.S. towards Dokdo and Diaoyudao. The two island groups were both under the control of the U.S. after the Second World War. 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 U.S. did not raise an objection. Yet, in the Okinawa Reversion Treaty the U.S. handed over to Japan Diaoyudao together with the Ryukyu Islands.

V. Legal Analyses of Imperialist and Colonialist Acts 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 first World War in 1914….Japan will also be expelled from all other territories which she has taken by violence and greed.” The Declaration embodies 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. At present, Japan wants to take the Ryukyu Islands as the basis to divide the East China Sea with China; however, Japan’s annexation and occupation of the Ryukyu Islands lacks any legal basis. Traditional international law states, “Territory . . . may be acquired by discovery, occupation, accretion, cession, and conquest or subjugation.”46 One can see clearly that this stipulation fully reflects the imperialist and colonialist flavors and serves the interests of imperialists and colonialists. It is the law of the jungle. It is commonly known 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 46

Shuliang, supra note 40, at 30.

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international judicial and arbitral bodies, and these cases basically involve either colonizing countries or colonized/newly independent countries.” “It is debatable whether claims of sovereignty based on certain activities during the material times starting from the 14th century in East Asia can be judged by norms developed in European/Western dominated arena.”47 The present Western-centric international law on territorial acquisition needs to be modified. The post Second World War territorial dispositions were mainly arranged by the U.S. and other Western powers. They mainly stemmed from their own geopolitical interests without taking the interests of regional countries into consideration. “The fact that they were more concerned about their own geo-political and strategic interests resulted in outcomes perpetuating the current territorial disputes in East Asia.”48 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 U.S., without the signature of the Soviet Union and without the participation of China, who were two big contributors in the Second World War. The Potsdam Proclamation issued by the U.S., 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 U.S., Great Britain, and China, however, the San Francisco Peace Treaty excludes China. It should be fairly said that the territorial arrangements in East Asia by the U.S. and other Western powers contravenes the Potsdam Proclamation. The U.S. administration has defended the western colonialist regime. While adhering to traditional international law, it adopts a practical and double standard in safeguarding its own interests. In explaining the reasons for the U.S. continued occupation of the Ryukyus and other islands at the San Francisco Peace Treaty conference, John Foster Dulles, said that, “This does not deny Japan’s ‘residual sovereignty’.”49 The term “residual sovereignty” first used by Dulles evidently was for protecting Japan’s interests regarding territories which Japan seized by force. The concept of “residual sovereignty’ is totally untenable in international law. Besides, it was not manifestly stated as a term in the San Francisco Peace Treaty which the U.S. took the primary role in drafting. The U.S. stance that “any conflicting claims to the (Senkaku) islands are a matter for resolution by the parties concerned” is more or less paying lip service.

47 48 49

Lee, supra note 8, at 209, 283–84. Id. at 285. Liu Tongshun et al., Survey of Post-World War History, 1950–1951, Vol. 6, at 403 (1985).

Chapter X The Dokdo Dispute in Perspective and Avenues for Resolution Leszek Buszynski* I. Territorial Disputes-Homeland and Peripheral This chapter will proceed on the basis that there are different kinds of territorial disputes which can be classified according to levels of commitment and intensity on the part of the disputants. The varying degree of commitment the disputants bring into the dispute will have a bearing on its resolution, as disputes of high intensity will be much more difficult to resolve than those of low intensity. Intensity and commitment can be measured in various ways and for the purpose of this chapter a classification of territorial disputes is proposed according to the distinction between homeland and peripheral. The term “homeland” was used by the ethno-nationalist writer Walker Connor to describe the feeling of belonging that exists between people and their sacred soil, the land of their ancestors, the native land, the cradle of the nation.1 Nations, tribes and ethnicities have, for the most part, identified with particular homelands which they have settled since time immemorial. In the modern era the Western derived states system was extended to embrace the world through colonization which meant that national and ethnic homelands had to be defined in terms of states. This required a clear demarcation of borders where previously territory was separated by frontiers which permitted considerable ambiguity. In the concept of the nation-state, a single homeland was to be incorporated in a single state, but the reality for many states, particularly those in the developing world, was several homelands in one state or state borders that divided homelands. State building created new instabilities and conflicts based on the mismatch of states and homelands. The term peripheral refers to territory which was not considered part of the homeland proper but was located in the frontier. It was not settled

* Professor of International Relations, Graduate School of International Relations, International University of Japan. 1 See Walker Connor, Ethnonationalism: The quest for Understanding 205–06 (1994).

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by homeland people, nor was it part of their mythology or folklore, though they may have had some contact with it. Maritime territory including rocks and islands which were never included in the homeland of a people and which were regarded as part of a maritime frontier assumed economic importance as a consequence of the United Nations Convention on the Law of the Sea (UNCLOS). Negotiated in 1958, UNCLOS-1 prompted states to define their maritime borders according to certain accepted principles to support extended claims to resources. UNCLOS-2, which was agreed to in December 1982, formalized the principle according to which states were allowed to claim exclusive economic zones (EEZ) and continental shelves.2 The result was complicated and overlapping claims in some areas and disputes which were then appropriated for nationalist causes. 1. The Homeland Territorial disputes involving the homeland or its definition arouse very powerful emotions and have justified the resort to war and conflict. When national values are threatened, those who advocate compromise or negotiation are accused of betrayal and a nationalist momentum arises which locks both sides into a prolonged dispute. Such disputes often result in an agonistic test of wills with several possible outcomes that do not resolve the issue; there may be a military victory by one side and a desire for revenge on the other side, or both sides may exhaust themselves and a stalemate ensues, or external intervention by the U.N. or a regional body or alliance such as NATO may impose a settlement which is temporary at best. The conflict then lies dormant and may be revived in the future. Examples of such conflicts include the Beijing–Taiwan dispute which is essentially concerned with a definition of the Han Chinese homeland which the Taiwanese activists explicitly reject. Serbia regards Kosovo as homeland territory. It was considered as the cradle of the Serbian nation in the 14th century which was subsequently conquered by the Turks and settled by Albanian Muslims. Kosovo was separated from Serbia by the United States (U.S.) and the European Union (E.U.) as punishment for its aggression in 1999. With E.U. and U.S. encouragement, Kosovo declared independence in February 2008 to which Serbia cannot be reconciled.3 Cyprus is a case of the clash of homelands as neither the majority Greeks nor minority Turks could live with each other without conflict. Intermittent crises erupted in 1958 and 1964 which resulted in the deployment of a British and U.N. peacekeeping force. After a Greek coup d’état in July 1974, which was intended to unite the island with Greece, 2 3

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 396. See Dan Bilevsky, Kosovo Declares Independence from Serbia, N.Y. Times, Feb. 18, 2008, available at http://www.nytimes.com/2008/02/18/world/europe/18kosovo.html.

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the Turkish army invaded in August 1974 to protect the Turkish community in the north of the island. Cyprus has been partitioned ever since with separate Greek and Turkish republics separated by a U.N. policed buffer zone.4 2. The Peripheral Territorial disputes over peripheral territory, in contrast, can be resolved by negotiation and compromise as they do not arouse the same passionate emotions and strong feelings. Most maritime disputes involving claims to resources are susceptible to compromise in some way which demonstrates that the tangibles can be negotiated. The greatest difficulty lies in negotiating the intangibles particularly when values clash. China and Japan could come to an agreement over the extraction of gas from the East China Sea without deciding the issue of territorial claims. In this area, where the Chinese and Japanese EEZs overlap, the Chinese have began drilling for gas on their side of their EEZ and outside the Japanese claim area in the Chunxiao field. Japan has argued that China is extracting gas from a continuous field which underlies both their claims so China is taking from the Japanese claim as well. On 18 June 2008, Japan and China reached an agreement for joint development as a result of Hu Jintao’s visit to Tokyo in May. The Chinese side declared to its own domestic audience that this was foreign investment and not joint development while Japanese Foreign Minister Komura remarked that it did not matter how the Chinese side explained the agreement to its own people as long as Japanese companies had access to the gas field.5 A similar dispute arose between Malaysia and Singapore over the Horsburgh lighthouse on Pulau Batu Putih or White Rock Island which was built by the British colonial administration in the 1840s. This case did not involve resources but competing claims to an island which was uninhabited and of little significance for either claimant. In this situation, claimants referred the matter to external adjudication in the International Court of Justice (ICJ) on the basis that a negative decision would be of little consequence anyway. In May 2008, the ICJ ruled in favor of Singapore given that it had demonstrated

4

5

See generally United Nations Peacekeeping Force in Cyprus, http://www.un.org/Depts/dpko /missions/unficyp/ (last visited by July 8, 2009). Frank Ching, East China Sea deal eases Sino-Japan Tension, Bus. Times (Singapore), July 2, 2008, available at http://app.mfa.gov.sg/pr/read_content.asp?View,10519; China, Japan reach principled consensus on East China Sea issue, June 18, 2008, available at, http://news.xinhuanet .com/english/2008-06/18/content_8394206.htm. For background to the East China Sea dispute, see James Manicom, Hu-Fukuda Summit: The East China Sea Dispute, 8 China Brief 9, 9–12 (2008).

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state functions over the island which had not been contested by Malaysia.6 The Malaysian-Indonesian territorial dispute over Sipadan and Ligitan was a similar example of a peripheral dispute resolved by the ICJ. These two islands are located in the Sulu Sea off the coast of Sabah and Kalimantan. Remote and uninhabited, they were considered unimportant until 1969 when offshore drilling required a determination of maritime sea borders. The two claimants agreed to refer the dispute to the ICJ in 1997 which in December 2002 decided in favour of Malaysia on the basis that the Malaysian side could demonstrate continuous administration.7 3. The Elevation of Peripheral Disputes There is also a category of territorial disputes in between the above two in which conflict over peripheral territory has been stimulated for various reasons and which have the appearance of a clash over homelands. Peripheral territory becomes a non-negotiable issue when it is linked with deep grievances in the bilateral relationship, in which case it becomes a symbol of past injustice which has to be rectified first before negotiations are possible. Nationalism may whip up these disputes over peripheral territory as an expression of resistance to a traditional enemy and they should be seen in the bilateral historical context of struggle against a larger and dominating power. One such outstanding case was the Sino-Soviet territorial dispute over 1964– 1989 which came close to war. The territorial dispute was a product of SinoSoviet rivalry which broke out in 1960 when Mao Zedong challenged Soviet leadership of the communist world and raised Chinese claims to the so-called “lost territory” in the Far East.8 With the raising of Chinese claims, the Soviet leadership was alarmed, and in 1969, there were border clashes along the Ussuri river which began in March and continued through July for the rest of the year. Moscow intimated that it could resort to nuclear weapons. In that year, Harrison Salisbury published his book entitled The Coming War between Russia and China which attracted much attention.9 It seemed as though that there was a fundamental clash of two empire systems which would only be resolved in conflict. Soviet leader Gorbachev, however moved to normalize relations with China in 1989 thereby defusing the Sino-Soviet conflict which laid to rest

6

7

8 9

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay. v. Sing.) (Judgment of 23 May, 2008), available at http://www.icj-cij.org/docket/files/130/14492. pdf (last visited Sept. 26, 2009). Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon. v. Malay.), 2002 I.C.J. 625 (Dec. 17). David Rees, Soviet Border Problems: China and Japan, 139 Conflict Stud. 30 (1982). Harrison E. Salisbury, The coming war between Russia and China (1969).

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the tensions of the past. The two sides could conclude a border agreement in May 1991 which illustrated for China the claims to the so-called “lost territories” were part of a bargaining strategy with Moscow and not a claim to homeland territory to be enforced. The Sino-Russian border dispute and Taiwan are two different cases for China which can be explained by the homeland-periphery distinction. The territories lost to the Russians were not areas of Chinese settlement and were settled by tungisic tribes which fell under the influence of the Manchus. Taiwan, however, has been regarded as part of the homeland by mainland China because it has been settled by waves of Han Chinese, first after the collapse of the Ming Dynasty and then as the KMT regime in China collapsed in 1949. This latter event confirmed Taiwan’s status for Beijing as a non-negotiable part of the homeland. 4. Beleaguered States External factors may also have a role in the elevation of peripheral disputes to a level where they become non-negotiable. Should a state face various territorial disputes with neighbors as a result of past history, it may be unable to negotiate with anyone without the fear that its position over others would be undermined. The political leadership then becomes locked into a non-negotiable position over all territorial disputes, and even if it was clear that justice was against them over a peripheral issue, the linkage with other more important territorial issues would act as a major constraint. This would be particularly the case if the state in question had its own claim to homeland territory against a neighbor in which case its ability to negotiate other territorial claims made against it would be severely curtailed. A state in this situation would face a virtual paralysis of decision-making unless and until opportunities for favorable compromises would arise which would allow gradual movement over some or all disputes. As heir to the Soviet Union, Russia has been in this position where it has faced territorial claims with neighbors east and west. While Russia battles Ukrainian claims over the Crimea, it fears a revival of Estonian claims and worries about the future of the Kaliningrad enclave in the Baltic. It has not been disposed towards negotiation over Japanese claims to the Northern Islands. Indeed, after the collapse of the Soviet Union, the Russian leadership was alarmed that the process of disintegration would continue with the breakup of Russia as well, reaching to Chechnya and Tatarstan. Moscow became intransigent and fearful over territorial claims. Japan has territorial disputes with all three of its neighbors and finds itself in a similar position. As well as the Northern Islands dispute with Russia, and the East Sea dispute with Korea, there is also the Senkaku/Diaoyu Islands dispute

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with China, and the Dokdo/Takeshima dispute with Korea. Japan cannot make concessions in one of these disputes without affecting negotiations in other disputes, particularly in relation to the Northern Islands. States in this situation are beleaguered and prevented from taking steps to resolve territorial disputes because of the linkages between them.

II. The Russian-Japan Territorial Dispute This dispute will be used to illustrate the ideas above and also to identify lessons for the Dokdo/Takeshima dispute. Basically, Japan regards the Northern Islands as part of the homeland and will not be reconciled to their loss to Russia. According to the Article 2 (c) of the San Francisco Treaty of 8 September 1951 Japan “renounces all right, title and claim to the Kurile Islands and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of 5 September 1905.”10 The Japanese side has taken the position that the definition of the Kurile Islands did not include the four northern islands of Etorofu, Kunashiri, Shikotan, and Habomai. They were strengthened in this belief by the statement of the U.S. Special Representative to the San Francisco Conference, John Foster Dulles, who stated that “some question has been raised as to whether the geographical name ‘Kurile Islands’ mentioned in article 2 (c) includes the Habomai Islands. It is the view of the United States that it does not.”11 Moreover, the intention of the treaty was to divest Japan of territory obtained by means of colonial expansion such as Taiwan and Korea. In contrast, the Northern Islands, like the Ryukyu Islands which included Okinawa, were considered part of the Japanese homeland before the period of colonial expansion. The San Francisco Treaty recognized this distinction by placing Okinawa and the Ryukyu Islands under U.S. trusteeship and by extension, there was implicit recognition that the Northern Islands had a similar status. According to the Japanese view, it followed that the Northern Islands were subject to the Treaty of Shimoda which was signed between Japan and Russia on 7 February 1855 which established the border between Etorofu and Urup Islands. This Treaty separated the Northern Islands which were Japanese from the Kurile Islands which were Russian.

10 11

Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169. Ministry of Foreign Affairs, Gov’t of Japan, Joint Compendium of Documents on the History of Territorial Issue between Japan and Russia-IV. San Francisco Peace Treaty, http://www .mofa.go.jp/region/europe/russia/territory/edition92/period4.html (last visited Oct. 7, 2009).

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1. Russia-A Beleaguered State For Russia, the Northern Islands were a peripheral territory which had been occupied by Soviet forces in the closing stages of the Pacific War in September 1945. Russia’s position on this issue was based on rights of conquest which Japan had to accept as a legacy of its defeat in war. The Treaty of Shimoda, according to the Russian view, had to be seen in the context of the shifting border between Japan and Russia. The Treaty of St. Petersburg of 1875 gave Japan the entire Kurile Island chain in exchange for the island of Sakhalin, which later was partitioned between them as a result of the Treaty of Portsmouth of 1905. Moreover, Russia’s borders in the West, East, and the Caucasian region had been established by long periods of war and conquest, and it could not accept territorial claims against it in one case, no matter how valid, without stimulating similar claims from others. Moscow was concerned about Estonia, with which it eventually concluded a treaty in 1995, the Ukraine, Chechnya, and above all, the border with China. For these reasons, what was essentially a peripheral issue for Moscow, was elevated to the non-negotiable agenda. Local residents in Sakhalin Oblast may have regarded the disputed islands as their homeland, but this was of recent and artificial origin. This distinction between homeland and periphery is important in understanding the difference in attitudes between the Russian government and the Japanese over this issue. Russia is more capable of negotiating the issue and reaching a compromise than Japan which regards the Northern Islands as a homeland issue. It explains Moscow’s effort to settle the dispute at the most appropriate time when the Soviet Union was weakening and faced dissolution over 1990–91. Moscow’s Liberals called for the return of the Northern Islands to Japan arguing that Russia should repudiate its Stalinist past and restructure its relations with neighbors on the basis of legality. Grigory Yavlinskii, the economist and Liberal, stressed the importance of resolving the territorial dispute with Japan on the basis of the 1855 Treaty of Shimoda. Only through legality could Russia ensure itself of stable and secure borders which would put to rest the territorial claims raised against it. Moreover, Liberals at that time were appalled by the revelations of waste and inefficiency which arose during Gorbachev’s glasnost campaign and thought that the return of the islands would prompt Japan to offer economic aid on a vast scale to alleviate Russia’s economic problems. This was called the “islands for cash deal.” The Moscow leadership from Gorbachev to Yeltsin was predisposed to the return of the islands in some way, either as part of a long-term strategy or in stages. Before he became Russia’s first president, Boris Yeltsin visited Japan in January 1990 and declared a five-step plan for a resolution of the issue. The first step was official Soviet recognition of the dispute which was a change from Moscow’s continual denial. The fifth step, however, entailed handing over the resolution

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of the issue to future generations.12 Yeltsin said then that Russia should no longer treat Japan as a defeated country and would restructure the relationship anew. There was the expectation in Yeltsin’s circles that Japanese investment of $8–15 billion would be forthcoming if the relationship with Tokyo improved as a result of a deal over territory.13 Soviet President Mikhail Gorbachev visited Tokyo in April 1991 amidst rising expectations that a deal over territory would be concluded. Gorbachev’s vague purpose at that stage was to initiate movement towards a future resolution on the basis of multilateralism and compromise. Yeltsin, who had been removed by Gorbachev from his position as Moscow’s mayor in 1987, warned the Soviet leader that territorial issues were a matter for the Russian republic and should not be negotiated by the Soviet Union. Despite the views of the Moscow Liberals, neither Yeltsin nor Gorbachev was in position to do more than express long-term and vague intentions. There was much opposition from the Supreme Soviet and party circles that a territorial deal with Japan would open the floodgates and let loose a flood of territorial claims against Russia. At a time when Russians feared that the disintegrating forces released by the breakup of the Soviet Union would engulf Russia as well, this was a very powerful and emotional restraint. Wild rumors circulated in Moscow at this time that the Moscow leadership was prepared to sell the Northern Islands to Japan for $200 billion which promoted accusations of a sellout. Governor of Sakhalin Oblast, Valentin Fedorov, aroused political emotions over the issue claiming that “ancient Russian land” was at stake which was a complete distortion of the facts. Nonetheless, a climate of populist emotion was aroused within Russia’s Supreme Soviet which prevented Moscow from implementing any rational resolution of the territorial issue with Japan. After the collapse of the Soviet Union, Yeltsin, who had been elected Russia’s President on 12 June 1991, confronted the issue directly. His Foreign Minister, Andrei Kozyrev, and the Liberals he had appointed to his presidential administration saw that Russia would have to come to terms with Japan. In their view, a peace treaty with Japan would not only trigger Japanese investment in Russia, it would also facilitate Russia’s efforts to integrate economically with the Asia-Pacific region. Their intention was fundamentally economic as they wanted to take advantage of regional economic integration in Asia-Pacific

12

13

The second step was a peace treaty, the third step was the formation of a free enterprise zone in the islands, the fourth step was the demilitarization of the islands. See BBC Summaries of World Broadcasts, Kyodo News, Apr. 19, 1991. On the Gorbachev and Yeltsin periods of Soviet/Russian policy towards Japan, see Hiroshi Kimura, Distant Neighbors, Vol. II: Japanese-Russian Relations under Gorbachev and Yeltsin, 1–279 (2000).

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Economic Cooperation (APEC) and also the Association of Southeast Asian Nations (ASEAN) to boost economic development in the Far East whose economic prospects had worsened after the Soviet collapse. For them, the Northern Islands issue was an unfortunate hangover from history but one which their communist opposition would not let them forget. The Japanese were pleased with the Yeltsin administration and identified an opportunity to obtain the return of the islands when they invited Yeltsin to Tokyo in September 1992. Japanese Foreign Minister Michio Watanabe prepared the ground and declared his expectation that Yeltsin would admit Japanese sovereignty over the Northern Islands during the visit. To ease the way for Yeltsin, the Japanese side extended the right of permanent settlement to Russian residents of the disputed territory. This was done to remove one of the accusations of the Russian nationalists that local Russian residents would be forcibly removed if the islands were returned to Japan. Yeltsin faced great pressure from both sides, the Japanese expected him to resolve the issue while his political opposition threatened him with dire consequences if he did. In particular, Oleg Rumyantsev, who was head of the Supreme Soviet’s Constitutional Commission insisted that Russian territory could not be ceded to anyone without a referendum. With characteristic unpredictability Yeltsin cancelled the visit to escape an impossible situation. The Japanese side was noticeably angered as it seemed to many that a favorable resolution was within reach, it was, however, put on notice that excessive pressure directed upon a Russian president over the territorial issue would backfire. Thereafter, Japanese expectations of Moscow were more modest and restrained. Yeltsin visited Tokyo under different circumstances in the following year, and on 13 October 1993, signed a joint statement with Prime Minister Morihiro Hosokawa which said that negotiations over the territorial issue would continue “towards an early conclusion of a peace treaty.”14 Little more could be expected from Yeltsin who became embroiled in domestic conflict with his communist opposition over the bitter issue of industrial privatization. The issues were now beyond his power to resolve as his health noticeably deteriorated. Yeltsin continued to meet with Japanese leaders but could only make promises. When he met Japanese Prime Minister Keizo Obuchi in November 1999, he impulsively declared that a peace treaty by would be signed by 2000.15 The Russian Foreign Ministry was at pains to deal with yet another case of their president’s unpredictable behavior and advised the Japanese side that Yeltsin’s impulsive promise could not be 14

15

Tokyo Declaration on Japan-Russia Relations, Oct. 13, 1993, http://www.mofa.go.jp/region /n-america/us/q&a/declaration.html. See also Charles Smith, The Bear Hug, Far E. Econ. Rev., Oct. 21, 1993. Moscow Declaration Targets Treaty in 2000, Japan Times, Nov. 15, 1998.

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implemented. It proposed that the two sides should conclude an “interim pact” which would include the results of negotiations between the two countries so far. By then Yeltsin was fading from the scene and was passing responsibility to his appointed successor, Vladimir Putin. 2. Putin and the 1956 Declaration Putin brought with him a different approach to the territorial dispute with Japan. Yeltsin never clarified his understanding of a solution as to whether a compromise was sought or an eventual transfer of all the islands to Japan. The very ambiguity of his position motivated the attacks on him on the part of his political opposition. Rather than entertaining notions of resolving the issue on Japanese terms, Putin sought to base a resolution on legality as the Moscow Liberals had earlier proposed. Putin revived the 1956 declaration as a basis for the resolution of the dispute which was earlier described as the “Kunadze line” after Deputy Foreign Minister Georgi Kunadze. The Soviet Union and Japan issued a joint statement on 19 October 1956 when they agreed to establish diplomatic relations. Article 9 stated that Moscow would return two of the Northern Islands, Shikotan and Habomai, to Japan upon the conclusion of a peace treaty between them.16 The Soviet Union had not signed the San Francisco Treaty to protest the exclusion of Communist China, and Moscow had hoped to conclude a separate peace treaty with Japan to undermine its alliance with the U.S. Some on the Japanese side had the view that for the sake of peace with the Soviet Union, Japan should surrender those islands. Japanese Foreign Minister Shigemitsu Mamoru was one, who out of a sense of fatalism, was prepared to lose the islands which was apparent during his visit to Moscow in July 1956. In August 1956, however, U.S. Secretary of State John Foster Dulles warned Japan that if it accepted the loss of the Northern Islands to the Soviet Union, the U.S. would not return the Ryukyus to Japan.17 A more demanding Japan then negotiated with Moscow which resulted in the October 1956 declaration. When Putin visited Tokyo in September 2000, he met Prime Minister Yoshiro Mori and affirmed the validity of the 1956 agreement. This affirmation of the 1956 declaration was repeated when Putin met Mori in Irkutsk in March 2001.18 The significance of the 1956 offer for Putin was that it did not appear as a concession or a surrender of position which would have opened the floodgates, stimulating domestic opposition and perhaps jeopardizing ongoing negotiations with China over the border. Putin later stressed Russia’s sole legal obligation 16 17 18

For Article 9 of the 1956 Declaration, see supra note 11. David A. Welch, Painful Choices: A Theory of Foreign Policy Change 105 (2005). Mori, Putin Reaffirm 1956 Pact, Japan Times, Mar. 27, 2001.

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over this issue was the 1956 agreement which placed his position in an entirely different light. His intention was to fulfill a legal obligation and not to set a precedent for other territorial disputes where no such legal agreement had yet been negotiated. Putin subsequently reaffirmed the validity of the 1956 agreement as a legal document when he again met Prime Minister Mori in Irkutsk in March 2001. Nonetheless, Putin could not negotiate with Japan while negotiations with China over their common border were continuing; China was indeed the main priority. Under Mikhail Gorbachev, the Soviet Union signed a border agreement with China in May 1991 which basically affirmed the validity of the status quo much to Moscow’s relief, but left the status of the islands in the Argun, Ussuri and Amur rivers unresolved. With the depopulation of the Far East after the Soviet collapse, there was a fear and alarm in some circles in Russia that Siberia and the Far East would be swallowed by China. There was much opposition from Far Eastern governors and residents against conceding certain strategic islands to China around Khabarovsk, which according to the principles of border demarcation should belong to China. Governor Yevgenny Nazdratenko of Primorsky Krai and Viktor Ishaev of Kharbarovsk Krai were vocal in their opposition. Putin over 2000–2001 moved to emasculate the power of Russia’s 89 governors and made their positions dependent upon Moscow where previously they were elected by popular vote; Nazdratenko was removed in February 2001 and local opposition against the President’s policy towards both Japan and China was dampened. On 15 October 2004, a final border agreement was reached with China which settled the issue of the three remaining river islands; Tarabarov Island which is near Kharbarovsk would go to China, while Bol’shoe Ussursiiski Island over the Amur river from Khabarovsk was divided between Russia and China, Bol’shoe Island on the Argun River was similarly partitioned. The settlement was favorable to Russia in the Khabarovsk area since by accepting partition of two disputed islands, China had accepted the rights of local Russian residents. Under the Thalweg principle according to which ownership of the islands was decided by the main channel, China obtained 1,281 of the rivers islands while Russia obtained 1,163, a fairly even distribution.19 3. Linkage with China Russia’s border agreement with China was quickly followed by Putin’s reiteration of the 1956 agreement in relation to the Northern Islands dispute with Japan. On 14 November 2004, Russian Foreign Minister, Sergei Lavrov, formally declared that Russia was prepared to transfer two islands to Japan according to the 1956 declaration and wanted to settle relations with Japan, but 19

See Leszek Buszynski, Oil and Territory in Putin’s relations with China and Japan, 19 Pac. Rev. 287 (2006).

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both sides should conclude a peace treaty first. The care and deliberation with which Putin handled foreign policy was revealed in this move as he allowed his Foreign Minister to make the offer which he could later repudiate if necessary. Both sides had different interpretations of the 1956 declaration. Moscow regarded it as the final step in the resolution of the dispute and demanded the conclusion of a peace treaty first. The Japanese saw it as a first step which would be followed by the return of all the islands and then a peace treaty. Lavrov’s offer was ignored by Tokyo, and when Prime Minister Junichiro Koizumi met Putin on the sidelines of the 2004 APEC summit in Santiago later in November 2004, the 1956 declaration was not mentioned.20 The Japanese called for a return to the 1993 Tokyo agreement claiming that it placed recognition of Japanese sovereignty over the disputed islands before a peace treaty. The 1993 declaration, however, said no such thing. The Russians had anticipated a more positive response to their offer as they perceived signs of a possible compromise within the Japanese camp. One reason was because of the influence of Hokkaido Liberal Democratic Party member, Suzuki Muneo, on the Japanese Foreign Ministry who had pressed for a compromise to promote his own business interests.21 Another reason was the increasing confidence amongst the Russians that the Japanese would become dependent upon Russia for energy and oil. Koizumi visited Moscow in January 2003 and lobbied for the Pacific Ocean route for the Siberian oil pipeline that was then under discussion between Russia and China. Japanese interest in the project was an indication to the Russians that they could link the two issues. Moscow would then have bargaining leverage over Japan and could push Tokyo into a compromise resolution of the territorial issue. The Japanese, however, repudiated this linkage based on the perception that the oil pipeline would be directed to the Pacific Ocean anyway so Moscow can escape an anxious dependency upon China. The Japanese have continued to insist on their version of the 1993 Tokyo declaration and there has been no further movement over the territorial issue.

III. Relevance for the Dokdo/Takeshima Territorial Dispute The above examination of the Russian-Japanese territorial dispute has several relevant lessons for the Dokdo/Takeshima dispute. The first is that Russia, in the Northern Islands case, and Japan, in the Dokdo/Takeshima case, are both beleaguered states and are unable to make concessions however much their 20

21

See Editorial, Japan Cannot Accept Two-Island Formula Suggested by Russia, Nikkei, Nov. 24, 2004; see also Japan, Russia ‘completely opposite’ on Territorial Dispute, Japan Times, Jan. 16, 2006. Junko Takahashi, Talks over Disputed Islands at Impasse, Japan Times, Jan. 16, 2006.

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respective claims may be described as peripheral. The Japanese may wonder why Russia does not surrender a “few rocky islands” and reap the benefits of improved relations with Japan. Similarly, Japan could forgo a few “rocks” which are occupied by the Koreans and improve its position on the Korean Peninsula in relation to North Korea and the abduction issue which animates the Japanese public. Japan is the common actor in both disputes and faces the situation where its claims are occupied by foreign powers. If Japan surrenders one claim, its position over the other would be undermined, and more specifically if it conceded its claim to the Dokdo, which is somewhat less important for the Japanese, it would lose all hope of obtaining the return of the Northern Islands which are significantly more important as homeland territory. For this reason high profile public efforts by Korea to raise the ante with Japan over this issue would be brushed off, and indeed may have the opposite effect of strengthening Japanese resistance over this issue. Moreover, in view of the economic relationship between Japan and Korea and Korean efforts to reduce dependency upon China, such efforts may become counterproductive. What are the options for Korea? Korea could keep the issue alive to ensure its claim is not lost according to international law. Koreans, however, cannot deal with this issue in isolation from the others that Japan faces because of the linkage between the territorial disputes. Korea cannot expect the resolution of the Dokdo dispute while Japanese attention is directed to the Northern Islands issue with Russia. Korea could, however, continue to promote a favorable environment for resolution of the issue with Japan by allowing their close economic relationship to take its course and by avoiding needless confrontation over secondary issues. Korea could promote a Northeast Asian regional association based on the Six Party Talks in a way that would involve Japan and Russia more closely. This would strengthen the regional context for the resolution of all territorial disputes, the Northern Islands issue as well as the Dokdo/ Takeshima dispute. If it were possible to promote progress over the Northern Islands issue as the most pressing territorial issue that Japan faces today, then negotiation over the Dokdo/Takeshima would be more likely. One of the major difficulties of promoting regionalism would be the expectation that the territorial status quo should be accepted, and that all territorial disputes should be set aside for the sake of a higher objective of common peace and security. No doubt, the foundation and development of ASEAN proceeded on the basis that the post-colonial borders would be respected. Northeast Asia is somewhat different as both Korea and Japan are claimants and would be unlikely to support the status quo without recognition of their claims. The prospect of a Northeast Asian regional association, which Russia has supported, would provide an incentive for Russia to resolve its dispute with Japan. In this context of evolving regionalism, it may be possible to remove the blockages to the resolution of the Northern Islands dispute, and then in turn the Dokdo/Takeshima dispute.

Chapter XI Politics and Economics in the Resolution/ Non-Resolution of the East China Sea/Diaoyu Islands and Northern Territories Issues: Feats, Failures, and Futures Jean-Marc F. Blanchard* I. Introduction From 1945 to the present, the Asia-Pacific Region (APR) has been noteworthy for its plethora of territorial and maritime quarrels.1 Even now, there are outstanding land boundary and island disputes between the People’s Republic of China (“China”) and India, Thailand and Cambodia, and Thailand and Laos. As well, there exist numerous maritime boundary controversies including between China and Vietnam and Japan and South Korea as well as among diverse Southeast Asian nations.2 Only recently were territorial and/or maritime tensions between Australia and East Timor, China and Vietnam, and Singapore and Malaysia settled, in part or in whole, through techniques such as diplomacy, mediation, and third-party adjudication. Despite the historical prevalence of APR territorial and maritime problems, the contemporary situation is quiescent. One cannot seriously imagine a fullfledged military conflict or even serious low-level armed exchange over many of the territorial and maritime controversies that sometimes were an intense source of conflict from the 1970s through the first half of the 1990s. Some have attributed the diminishment of tensions and reduction in the likelihood of * Associate Professor of International Relations, Department of Political Science, San Francisco State University. 1 For reviews, see Barry Buzan, A Sea of Troubles? Sources of Dispute in the New Ocean Regime (1978); John Robert Victor Prescott, The Maritime Political Boundaries of the World (1985); Jonathon I. Charney, Central East Asian Maritime Boundaries and the Law of the Sea, 89 Am. J. Int’l L. 724 (1995). 2 Jean-Marc F. Blanchard, Maritime Issues in Asia: The Problem of Adolescence, in Asian Security Order: Instrumental and Normative Features 424, 424–457 (Muthiah Alagappa ed., 2003).

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conflict to American hegemony while others have stressed the positive role that regional institutions play in promoting cooperation.3 Yet others have pointed to the growth of economic linkages.4 This piece considers the promise of economics to calm or lubricate a settlement of the Japan-South Korea Dokdo issue. It does this by thoroughly examining two APR territorial and maritime disputes. One is the China-Japan controversy over the East China Sea (ECS) and Diaoyu/Senkaku Islands (the “Islands”). The other is the Japanese-Soviet/Russian conflict over the Northern Territories (the “Territories”).5 The former merits attention because high economic interdependence correlates with a compromise, admittedly a modest one. The latter merits attention because Japan has long attempted to use economic incentives to recover the Territories.6 Incentives, however, have clearly failed. This work strongly calls into question the potential for economics to resolve or guarantee stability in the Dokdo quarrel. With respect to the ECS and Islands disputes, this research suggests that economics did not drive the 2008 ECS settlement, solved no part of the Islands dispute, and, in fact, was more often a source of friction than cooperation. In the case of the Territories, Japanese economic incentives failed to push the Soviet Union/Russia to compromise. This contribution incontrovertibly shows that we must pay attention to political factors to understand the potential for economic forces to serve as a palliative and to identify the factors that facilitate/hinder a settlement of territorial and maritime disputes. The policy ramifications of this are tackled below.

3

4

5

6

See, e.g., Amitav Acharya, Will Asia’s Past Be Its Future, 28 Int’l Sec. 149 (2003); Hidetaka Yoshimatsu, From Distrust to Mutual Interests?: Emerging Cooperation in Northeast Asia, 22 E. Asia 18 (2005); Michael Yahuda, The Limits of Economic Interdependence: Sino-Japanese Relations, in New Directions in the Study of China’s Foreign Policy 162, 178 (Alastair Iain Johnston & Robert S. Ross eds., 2006). Ming Wan, Economic Interdependence and Economic Cooperation, in Asia Security Order: Instrumental and Normative Features 280, 280–310 (Muthiah Alagappa ed., 2003); Min Gyo Koo, Scramble for the Rocks: Liberal Peace and the Dokdo/Takeshima, Senkaku/Diaoyu, and Paracel and Spratly Islands Disputes, (unpublished paper presented at the 2005 Annual Meeting of the American Political Science Association, Washington, D.C.) (Sept. 1–5, 2005). Koo argues that a lack of economic interdependence makes disputants more confrontational while interdependence leads to conflict containment or accommodation. While interesting, Koo’s quantitative paper suffers inter alia from its problematic treatment of the economic interdependence argument, questionable variable selection, coding, and measurement decisions, and its failure to consider the identity of the initiator. The conflict over the ECS obviously involves many other parties. For a comprehensive discussion, see Mark J. Valencia, The East China Sea Dispute: Context, Claims, Issues, and Possible Solutions, 31 Asian Persp. 127 (2007). Even so, as Valencia observes (page 165), the China-Japan ECS conflict is the main one. Randall E. Newnham, How to Win Friends and Influence People: Japanese Economic Aid Linkage and the Kurile Islands, 27 Asian Aff. 247, 247–48, 250 (2001).

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The following section reviews the dynamics of the Sino-Japanese ECS and Islands disputes from the early 1970s through the present. Throughout, it considers the relative role of economics. The third section considers how political factors influenced the 2008 ECS accord. The fourth section studies the course of the Territories dispute from the time that Mikhail Gorbachev became the top Soviet leader through Vladimir Putin’s second term in office, assessing throughout the interplay of political and economic factors. The fifth section analyzes the politics of the Territories dispute. The sixth section ponders what my study suggests in terms of addressing the Dokdo dispute. The seventh and final section summarizes my findings, offers some thoughts on their significance, and highlights some areas in need of further attention.

II. Economics and the History of the Sino-Japanese ECS and Island Disputes The ECS controversy relates to the delimitation of China and Japan’s respective maritime rights. Japan asserts the median line as the sea boundary while China claims a line linked to its continental shelf on the basis of the natural prolongation principle. China and Japan covet the ECS because of its potential energy resources and fishing grounds. Additionally, the ECS has strategic salience given its location, the passageways it affords the Chinese navy, and the potential access it gives Japan and the U.S. to China’s coastal areas. Finally, a number of Chinese analysts have highlighted its relevance from a national identity perspective, opining the continental shelf is an extension of home territory.7 The dispute over the Islands involves competing claims to 7 square kilometers of land, involving five islands and three rocks situated approximately 200 nautical miles (nm) from the Chinese mainland and Okinawa. Ownership over the Islands is important because it could provide a large Exclusive Economic Zone (EEZ) and continental shelf. For China, the continental shelf associated with the Islands is important since a large percentage of China’s EEZ entails continental shelf. For Japan, ownership of the Islands would allow it to bridge the Okinawa Trough. The salience of the Islands in national identity terms

7

This and the next paragraph draw upon Jean-Marc F. Blanchard, The U.S. Role in the SinoJapanese Dispute over the Diaoyu (Senkaku) Islands, 1945–1971, 12 China Q. 95 (2000); JeanMarc F. Blanchard, China’s Peaceful Rise and Sino-Japanese Territorial and Maritime Tensions, in China’s “Peaceful Rise” in the 21st Century: Domestic and International Conditions 211, 211–36 (Sujian Guo ed., 2006) [hereinafter Blanchard, China’s Peaceful Rise]; Valencia, supra note 5, at 128–29, 144–51; Peter Dutton, Carving up the East China Sea, 60 Naval War C. Rev. 45, 45–50, 59 (2007); Cai Penghong, Energy and Security in the East China Sea, 19 Korean J. Def. Analysis 57, 58–60, 72–73 (2007).

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pertains to historical memory, the definition of China and Japan in terms of “the other,” and Chinese and Japanese definitions of national territory. Shortly after the U.N. reported the potential existence of rich petroleum deposits under the ECS in 1968, various East Asian countries began to claim sovereignty over the Islands and to reinforce their positions. Within two years, China entered the fray. In 1971, the Islands controversy became a more challenging issue when the U.S. explicitly transferred them to Japan. Three years later, China vigorously complained when Japan and South Korea concluded an agreement on joint development of the ECS. In 1978, tensions over the Islands reached new heights when Japanese anti-treaty forces emphasized the Islands controversy, among other things, to disrupt Sino-Japanese peace treaty negotiations and China subsequently responded by sending more than 100 fishing vessels, many armed, into the territorial waters of the Islands.8 The dispute, though, remained contained, with economics tempering China’s stance in two ways. One is that better relations with Japan gave China access to Japanese capital, advanced products, and markets.9 A second is that Japan’s liberal fishing regime for Chinese fisherman meant China did not have to vigorously defend its ECS EEZ.10 China’s moderation, though, is mostly attributable to the desire of Chinese leaders to build an anti-Soviet front with Tokyo and to encourage the termination of Japan-Taiwan relations. The importance of a modus vivendi with Japan is shown by the fact that China shelved the dispute after the signing of a peace treaty, even though Japanese nationalists still engaged in provocative behaviors on the Islands and the Japan government put a helicopter landing pad and markings there. Worth noting is the fact that economics actually was a source of conflict during the period. Beliefs on both sides that the ECS and Islands offered natural resources helped to fuel tensions over both. In 1980, China and Japan mutually sought to delimit an ECS border. Beijing’s insistence on the natural prolongation principle and Japan’s adherence to the median line principle ensured no resolution of the two countries’ opposing claims. China’s subsequent move to assert its claims by drilling two exploratory wells engendered tensions, but Beijing took steps to prevent an escalation of frictions by withdrawing its rigs and again soliciting Japanese interest in joint development. With the exception of 1988, Sino-Japanese territorial and maritime controversies generated little heat between the two East Asian giants over

8 9 10

Blanchard, China’s Peaceful Rise, supra note 7, at 214–15; Valencia, supra note 5, at 149–50. Blanchard, China’s Peaceful Rise, supra note 7, at 215. James Manicom, Sino-Japanese Cooperation in the East China Sea: Conditions of Political Will 12–13 (unpublished paper presented at the Association of Chinese Political Studies Conference on “Greater China in an Era of Globalization”) (July 14–15, 2008).

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the balance of the 1980s. In 1988, a Japanese nationalist group modernized a lighthouse it had constructed on the Islands.11 Analyzing the relative stability of the 1980s, it is clear that China still coveted Japanese capital, goods, and technology and that China’s post-1989 Tiananmen crisis economic slowdown increased Japan’s economic attractiveness. However, it must be recognized that China’s economic need for Japan in the period was less than in the 1970s when China was ending its self-imposed separation from the global economy. Thus, it seems unlikely that economic factors significantly contributed to the dearth of serious frictions over the ECS and the Islands. Moreover, two political dynamics which illuminate the calm tenor of the period were present. First, for the first half of the 1980s, China and Japan remained concerned about the Soviet threat. Second, Beijing was consumed with severe domestic and international problems surrounding the Tiananmen crisis. In 1992, the Islands quarrel dramatically intensified because China listed them as its sovereign territory in its Law on the Territorial Sea and Contiguous Waters while also claiming an associated 12 nm territorial sea and 24 nm contiguous zone. For the next several years, frictions grew as China and Japan moved to solidify their claims in the face of their upcoming ratifications of the U.N. Convention on the Law of the Sea (UNCLOS) in 1996. For example, in May 1995, a Chinese government vessel undertook survey work around the Islands. Three months later, Japan dispatched planes to shoo away Chinese planes it believed had been sent on a patrol mission over the Islands.12 The first half of the 1990s was a time when China and Japan became more active in defending their boundary interests. Part of this newfound vigor was attributable to the fact that UNCLOS came into being in 1992. To defend their interests, both countries had to assert them in concrete ways. Another factor behind the two countries’ activism was the rising importance of natural resources. In China’s specific case, concerns about regime legitimacy and bureaucratic interests also may have been at work. The decade from 1996–2006 would be particularly problematic. In 1996, the territorial and maritime situation initially took a turn for the worse when China and Japan ratified UNCLOS and declared clashing EEZs and sea and continental shelf boundaries. Concurrently, Beijing reaffirmed its claims to the Islands. Relations seriously declined between July and September 1996 due to the activities of a Japanese nationalist group involved in the construction, maintenance, and repair of Island lighthouses and the death of a Chinese activist who tried to swim to one of the Islands from a protest boat. While China repeatedly demanded that Japan act against the lighthouses, Japan repeatedly

11 12

Blanchard, China’s Peaceful Rise, supra note 7, at 216. Id. at 216–17.

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refused. In October, new problems arose when a group of Chinese activists traveling to the Islands to tear down a lighthouse blamed the loss of one of their boats on Japanese pressure. China protested against the treatment of its activists and the lighthouses to no avail.13 In 1997, Island and ECS tensions persisted with a Chinese exploration vessel entering deeply into Japan’s claimed Islands’ EEZ and a Japanese group hoisting flags on the Islands. In the sphere of fisheries, the news was more positive. China and Japan concluded a Sino-Japanese Fisheries Agreement, which created a Provisional Measures or Joint Fishing Zone applicable to both China and Japan’s EEZs (though it was silent about the ECS boundary or sovereignty over the Islands). The accord also established fishing permit requirements, the legal obligations of fishermen, and specified flag-state jurisdiction over vessels operating within the zone.14 The next year, the focus in the ECS turned to Chinese maritime activity which steadily increased. For instance, in April, a Chinese marine research ship twice entered the territorial waters of the Islands while surveying the ocean floor within Japan’s claimed EEZ. This incident was one of 16 Japanese sightings of Chinese research vessels in Japan’s claimed EEZ in 1998. In June, China began to exploit an ECS oil field from a newly established rig. The same month, 60 protestors from Hong Kong and Taiwan attempted, without success, to land on the Islands. The next year, ECS problems proliferated with the Japanese Maritime Self Defense Forces (MSDF) reporting 30 sightings of Chinese ships in Japan’s claimed waters, including off the Islands. Compounding the tensions flowing from Chinese ship activities were visits by Japanese nationalists to the Islands and Chinese fishing and oceanographic activities in the area.15 In 2000, Japanese nationalists continued to irritate Beijing due to their activities on the Islands. For Japan, the problem not only was that China continued to intrude into Japan’s claimed EEZ, but also that Chinese military vessels (e.g., submarines) were involved. After Japanese Diet members threatened to postpone a large loan, China agreed to consider an advanced notification system for ship activities in disputed ECS areas. China and Japan eventually signed a mutual prior notification agreement in February 2001 (the “2001 Agreement”), though this accord did not mention an ECS boundary or China’s military vessels. Japan charged that the Chinese repeatedly violated the 2001 Agreement, though the most bothersome incident transpired when the Chinese Navy told the MSDF to stay away from a Chinese hired vessel operating on the Japanese side of Japan’s favored median borderline.16 13 14 15 16

Id. Id. Id. Id.

at at at at

217–18. 218. 219. 219–20; Manicom, supra note 10, at 20–31.

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In 2002, there were new problems as a result of Japan’s dispatch of various Maritime Safety Agency (MSA) ships into disputed areas of the ECS in order to look for a North Korean ship that sunk under Japanese pressure. China criticized Japan for using force in its EEZ and warned that it would safeguard its rights. Moreover, around the same time, Japan started to lease some of the Islands, which provoked China’s ire. In summer and fall of 2003, Chinese protestors entered the territorial waters of the Islands, but were blocked from landing. Beijing took the occasion to observe that unilateral Japanese actions were illegal, to reaffirm China’s ownership of the Islands, and to call upon Japan to prevent new activities by Japanese nationalists.17 In August, there were problems because China came to an agreement with a group of Chinese and Western firms to explore for energy resources in the ECS.18 In January and March 2004, Chinese activists made several new attempts to land on the Islands. In the latter case, China activists succeeded and subsequently were arrested by Japan, causing some bilateral frictions. Early in April, Chinese Premier Wen Jiabao restated Chinese claims to the Islands during a visit by the Japanese Foreign Minister. For its part, Japan insisted that China restrain its people from attempting landings. From May through the end of the year, bilateral tensions expanded as a result of two sets of issues. First, Japan charged that China, in violation of the 2001 Agreement, had sent dozens of naval and marine research vessels into its ECS EEZ and the waters around the Islands. Second, Japan complained about Chinese oil drilling close to its favored median line boundary. Tokyo further insisted that Beijing provide it with data on all its exploration activities, a demand which China strongly rejected.19 In January 2005, the tenor of the dispute worsened when China criticized Japanese plans which discussed how Japan might repel a foreign invasion against its remote southern islands. Adding to tensions was a decision by the Japanese government in February to place an Islands lighthouse under “state control.” Over the next four months, more problems ensued after the Japanese government announced 18 nationals had registered permanent addresses on the Islands. As well, Japan provoked China by granted test drilling rights in the ECS to Teikoku Oil, a “severe provocation” in Chinese eyes. In August and September, Japan charged China with laying pipes in the ECS, protested China’s extraction of energy from a site not far from Japan’s EEZ, and observed, with alarm, a fleet of five Chinese warships in the area near the Chunxiao gas

17 18

19

Blanchard, China’s Peaceful Rise, supra note 7, at 220. Valencia, supra note 5, at 131; Kung-Win Au, The East China Sea Issue: Japan-China Talks for Oil and Gas, 25 E. Asia 224–25 (2008). After a year of activity, Shell and Unocal both pulled out. Blanchard, China’s Peaceful Rise, supra note 7, at 220–21.

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field.20 In May and September/October 2005, the two countries traded proposals about joint development, but discussions went nowhere because each side proposed joint development in the other side’s claimed ECS areas. Talks eventually were suspended after Japanese Prime Minister Koizumi Junichiro visited the Yasukuni Shrine in October.21 During talks that took place in the first half of 2006, there was little evidence that China and Japan were ready to settle their boundary problems. Each side firmly rejected the other’s joint development proposals. Aside from limited diplomatic progress, there were problems over Chinese ECS aerial surveys, Chinese restrictions on non-Chinese ship activity around the Pinghu field, Chinese ECS energy development plans, and the presence of a Chinese survey vessel in the waters of the Islands, and attempts by Chinese activists to land on the Islands. Japan even threatened retaliation if China continued with its energy development activities. Even so, Beijing and Tokyo agreed, in July, to form technical and legal expert groups to discuss their differences. Furthermore, they agreed to set up a hotline to deal with situations in the ECS.22 A defining feature of the Sino-Japanese relationship from 1996 to 2006 was ever increasing economic interdependence. In 1996, bilateral trade was around $60 billion. Four years later, it jumped above $80 billion. By 2002, it exceeded $100 billion and by 2006 it reached $200 billion. China’s trade with Japan not only grew at rates exceeding that of China’s overall trade, but brought in high quality consumer goods and much valued industrial goods. Bilateral FDI flows also significantly increased. Reports show that it soared from $3.2 billion in 1998 to $38.6 billion in 2000 to $40 billion in 2003. Japanese FDI had special value to China given the fact that much of it went into the manufacturing sector. As well, Japanese financial assistance to China surged over this ten year span.23 During the 1996 to 2006 period, there also was an expansion of business contacts, cooperative government-to-government economic arrangements (e.g., dialogues, exchanges, and summits), and technical cooperation endeavors. Beyond this, tourist exchanges surged, albeit with some variation at times of extreme tension. In 2004, over 3 million Japanese tourists went to China while almost 600,000 Chinese tourists visited Japan.24 Sino-Japanese economic inter-

20 21 22

23

24

Id. at 221–24; Valencia, supra note 5, at 131–33; Au, supra note 18, at 226. Au, supra note 18, at 229–30. Valencia, supra note 5, at 132, 134–38; Penghong, supra note 7, at 61–62; Au, supra note 18, at 230–23. He Liping, Sino-Japanese Economic Relations: A Chinese Perspective, 5 China & World Econ. 11 (2003); Yahuda, supra note 3, at 164–65; Blanchard, China’s Peaceful Rise, supra note 7, at 234. Yahuda, supra note 3, at 165–66.

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dependence was manifest, too, in the development of as well as efforts to create Northeast Asian economic institutions, formal and informal. Examples include leader summits, trilateral dialogues, experts’ gatherings, ministerial exchanges, and so on pertaining to energy, foreign exchange, investment, information technology, and trade.25 High economic interdependence, however, failed to moderate Chinese and Japanese behavior, much less yield a territorial and/or maritime settlement. On the Chinese side, Beijing challenged Japanese revisionism, opposed a permanent Japanese seat on the U.N. Security Council, and greatly expanded its linkages with Southeast Asia. On the Japanese side, Tokyo became an active participant in the American East Asian missile defense system. In addition, it continued to balance against China by deepening economic and political ties with India and Southeast Asia. Finally, it bolstered its security relationship with the U.S.26 Economics not only failed to moderate behavior, but also contributed to conflict. Specifically, as shown above, the economic attributes of the Islands and the ECS encouraged China and Japan to deploy forces, intensify exploration activities, and to fend off efforts by the other side to assert sovereignty.27 Most critical in reigning in Sino-Japanese maritime and territorial tensions between 1996 and 2006 were political factors. For instance, Beijing acted cautiously in asserting its ECS and Islands claims because of a desire to defuse the China Threat theory which saw a rising China as domineering, expansionist, and revisionist. In addition, Beijing moderated its policies towards Japan in order to limit Japanese efforts to balance against Beijing by building closer relations with India and Southeast Asia. Furthermore, Beijing had an incentive to act cautiously in order to limit Japan’s interactions with Taiwan. Moreover, Beijing probably found it sensible to contain frictions because frictions would have driven Tokyo to tighten its security ties with Washington. Finally, Chinese decision makers have long believed they need a peaceful international environment in order to deal with all their challenges at home. Starting in March 2007, China and Japan resumed their suspended ECS negotiations, most likely in connection with Chinese Premier Wen Jiabao’s upcoming visit to Tokyo. There was much hope because shortly after Wen’s visit the two sides convened a technical experts meeting. As well, Japanese elites stated that the ECS would be the biggest topic when Wen met Japanese Prime Minister Abe Shinzo in April in Tokyo.28 After the conclusion of Wen’s visit, China and Japan issued a statement in which they called for efforts to make the ECS a “Sea of Peace, Cooperation, and Friendship,” to conduct joint 25 26 27 28

Yoshimatsu, supra note 3, at 18–38. Yahuda, supra note 3, at 166–78. Id. at 165. Au, supra note 18, at 231–33.

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development as a provisional arrangement until a final delimitation, and to conduct joint development in larger sea areas as mutually agreed. The statement provided grounds for optimism, but also suggested continuing disagreement. In May and June, Chinese and Japanese diplomats held new meetings, though these yielded only boilerplate statements. In September, Fukuda Takeo replaced Abe, which engendered new hope because Fukuda was pro-China. In the runup to Fukuda’s trip to Beijing in December, there was a flurry of diplomatic activity, but this produced no accord. The treatment of the ECS in the statement following Fukuda’s visit was largely a reiteration of the April one.29 Roughly seven months after Fukuda’s well covered visit to Beijing, the two sides penned an agreement to develop jointly part of the ECS natural gas fields. The June 18, 2008 agreement allows Japan to invest in and take a portion of the profits from energy exploitation activities in disputed areas including the Chunxiao field. Chinese and Japanese spokesmen described the agreement as bringing benefits to both sides in the form of ECS peace and stability, ECS economic development, and more stable bilateral relationship. Somewhat dampening excitement over the accord for Japan was the fact that the deal was a far cry from the four fields the Japanese were touting they would get to jointly develop. Furthermore, China commented joint development would be subject to Chinese law and a private rather than public matter. Of note, press reports indicate that Fukuda promised to go to the Olympics after the deal was signed.30 Significantly, the June 18, 2008 agreement was silent on the future of the Islands. While this suggested the two parties had agreed to shelve the dispute, it also meant the dispute remained unresolved and that neither China nor Japan had agreed to separate, definitively, the issue of defining the Islands’ continental shelve and EEZ from the ECS. The ability of the Islands to provoke tensions was shown in early July when an aerial inspection of the Islands by Japanese Diet members provoked a Chinese diplomatic protest. Moreover the June 18 deal did not settle the two East Asian protagonists competing interpretations of the principles that should define the delimitation of the ECS. And for the

29

Penghong, supra note 7, at 62–63, 72; Au, supra note 18, at 233–36. Stephanie Ho, China “Clarifies” Agreement with Japan, Voice of America, June 19, 2008, available at http://www.voanews.com/english/archive/2008-06/2008-06-19-voa41.cfm?CFID =66906656&CFTOKEN=37718275; Zhou Shan, China and Japan Agree on Joint Gas Exploration in East China Sea, Epoch Times, June 27, 2008, available at http://en.epochtimes.com/news/8-6-27/72597.html; Brian Clampitt, Japan Barely Afloat in the East China Sea (July 14, 2008), http://www.stimson.org/pub .cfm?ID=64. 30

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area under joint development there still was a need to discuss the allocation of profits.31 Looking at the June 18 agreement it is tempting to attribute some facilitating role to economics. After all, Sino-Japanese economic ties continued to develop in 2007 and 2008. Bilateral economic ties were especially salient to Japan which remained in the process of recovering from its long period of economic stagnation. And Japan continued to be a significant investor in China, an important provider of jobs as a consumer of Chinese goods and manufacturer in China, and a useful source of technology and technical expertise. However, there is no cause for believing economic ties reached such heights in 2007 and 2008 that they could do in 2008 what they could not do between 2000 and 2006. Furthermore, we must be mindful of the fact that economics did not fully solve the ECS problem or address the Islands problem. To understand the deal that was struck, we instead must look at politics.

III. Politics and the 2008 ECS Accord Around the time of the ECS accord, Chinese leaders confronted a daunting set of challenges. On the domestic front, China battled an increasing number of civil disturbances. In the realm of economics, Chinese policymakers faced inflation, macroeconomic imbalances, and worries about raw material shortages. Turning to the other issues, Chinese decision makers faced rising income inequality, huge demographic/public health issues, and grave pollution problems.32 This long menu of difficult challenges focused the attention of Chinese leaders inward and gave them strong incentives to seek “peace” with Japan.33 One might question why these forces did not drive an earlier settlement if they were so powerful. The answer is that Japanese Prime Minister Koizumi’s nationalist stance on history issues made it difficult for China to compromise while he was in office (2001–2006). Furthermore, relations reached a breaking point in 2005/2006 which focused the attention of Chinese leaders’ on the need to conclude a deal. Finally, it took time to iron out the specifics after China moved to settle the ECS problem. 31

32

33

Ho, supra note 30; Mure Dickie & Michiyo Nakamoto, China and Japan Clinch Gas Deal, Fin. Times, June 19, 2008, available at http://www.ft.com/cms/s/0/0128b13e-3da7-11dd-bbb5 -0000779fd2ac.html. Minxin Pei, The Dark Side of China’s Rise, 153 Foreign Pol’y 32, 33 (2006); Carrie Gracie, China’s Rise Leaves West Wondering, BBC News, Aug. 16, 2006, available at http://news.bbc .co.uk/2/hi/asia-pacific/4797903.stm; Harry Harding, Think Again: China, 159 Foreign Pol’y 26 (2007). Penghong, supra note 7, at 71.

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From the mid-1990s onward, China had made tremendous progress in ameliorating perceptions of a China threat among East Asian countries. It did this by participating in multilateral institutions such as the Association of Southeast Asian Nations (ASEAN)+3. As well, it joined in numerous transparency initiatives such as military exchanges and the publication of white papers. In addition, China watched its words, expanded economic ties, and repeatedly dispatched high-level policymakers on goodwill missions. Even so, China’s economic ascendance, its increasing military capabilities, and other factors led to lingering worries among many countries in the APR and elsewhere. Progress with Japan could help China in this regard by showing China was committed to diplomatic solutions.34 It also could limit balancing behavior by Japan which was quite anxious about China’s rise. China’s awareness of the need to moderate such worries was vividly shown by its October 2008 State Council order banning its fishermen from fishing in disputed waters with Japan and other countries.35 Aside from these motives, it is likely that China wanted to reach an agreement on the ECS and/or the Islands because of the upcoming 2008 Beijing Olympics. The Olympics were a very important event for the Chinese leadership because it signaled recognition of China’s major power status. Chinese leaders simply did not want anything to distract from the Olympics. A reason for believing this mattered with respect to the 2008 ECS deal is that, as noted earlier, Fukuda promised to go to the Olympics after the deal was signed. A visit by him gained added salience because the Japanese Emperor had not responded positively to several Chinese invitations to attend the Olympics. Chinese leaders could not have reached a deal if they lacked sufficient stateness, which measures their ability to ignore opposing preferences.36 Fortunately for Japan, they had high stateness. The continuing autonomy of the Chinese Communist Party (CCP) and the dominance of the Politburo/General Secretary at the apex of the CCP ensured that when the top leadership wanted to strike a deal China indeed would conclude one. Moreover, China’s leaders possessed the resources needed to co-opt or repress opposition in the military, bureaucracy, or among the general public. Finally, while there were problems with the regime’s legitimacy in certain regions or among certain groups, the Party generally had good legitimacy because of its success in delivering economic goods and international political goods such as increased prestige.

34 35

36

Id. Shirong Chen, China Acts in Disputed Water Row, BBC News, Oct. 17, 2008, available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/asia-pacific/7676551.stm. For more on the concept of “stateness,” see Jean-Marc F. Blanchard & Norrin M. Ripsman, A Political Theory of Economic Statecraft, 4 Foreign Pol’y Analysis 371 (2008).

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The preceding discussion reveals that politics helps us more than economics in illuminating the dynamics of the Sino-Japanese ECS and Islands quarrels. Politics not only sheds light on Beijing’s rationales for coming to a deal with Tokyo, but also illuminates the political ability of the Chinese leadership to conclude an accord (the relevance of this will become clearer in the discussion of the Territories dispute below) and even the timing of the ECS agreement. As for the Islands dispute, politics may help to clarify its dynamics, too. More specifically, it appears that Japan, which controls the Islands, saw no political need to compromise and thus felt no compunction to budge on the ownership of the Islands. On a related note, Japanese leaders’ lack of stateness would have made it near impossible for them to compromise even if they wanted to do so.

IV. Economics and the History of the Territories Dispute The Territories are located off the eastern side of the Japanese island of Hokkaido and run in a northeasterly direction towards the Kamchatka peninsula in Russia. They consist of four islands – Etorofu (Iturup), Kunashiri (Kunashir), Shikotan, and the Habomais, which itself is a group of islands – and collectively are about twice the size of Okinawa. The Territories have value for both strategic and economic reasons. In regards to the former, the Territories permit Russian forces to control the Sea of Okhotsk where the Russian navy deploys many of its intercontinental ballistic-missile submarines. In regards to the latter, the Territories yield access to rich fishing grounds. The Territories also have symbolic value in identity and justice terms.37 At the beginning of the 1970s, the Soviet Union controlled the Territories.38 There were several efforts in the first half of this decade to resolve the Territories’ controversy. These initiatives failed, which is hardly surprising given

37

38

For discussion, see Robert Sutter, East Asia: Disputed Islands and Offshore Claims – Issues for U.S. Policy, CRS Report for Congress, CRS2-CRS3 (1992), microformed on Major Studies and Issue Briefs of the Congressional Research Service – 1993, reel 1, fr. 00480 (Cong. Research Serv.); William Nester, Japan, Russia, and the Northern Territories: Continuities, Changes, Obstacles, Opportunities, 14 Third World Q. 717, 723–24, 733 (1993); Robert F. Miller, Russian Policy toward Japan, in Russian Foreign Policy Since 1990 at 135, 144 (Peter Sherman ed., 1995); Konstantin Sarkisov, The Northern Territories after Yeltsin’s ReElection: Obstacles for a Resolution from a Russian Perspective, 30 Communist & Post Communist Stud. 353, 359 (1997); Ministry of Foreign Affairs, Gov’t of Japan (MOFA), Japan’s Northern Territories (1999), http://www.mofa.go.jp/region/europe/russia/territory [hereinafter MOFA, Japan’s Northern Territories 1999] (last visited Sept. 28, 2009). The roots of the dispute over the Territories can be traced back to the 19th century. For historical background, see Nester, supra note 37, at 721–22; Miller, supra note 37, at 142; MOFA, Japan’s Northern Territories 1999, supra note 37.

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the USSR’s real scheme was to use the prospect of a territorial settlement as a tool to dilute Japan’s tightening relationships with China and the U.S.39 By the middle of the back half of the 1970s, prospects for a settlement dimmed as the Soviets moved to a harder line. They refused grave visits by former Japanese residents of the islands without visas, included the Territories in their 200-mile EEZ, and engaged in a major military buildup on Etorufu. The low level of tension and positive diplomatic atmosphere in the first half of the decade are attributable to the desire of the Soviets to prevent warmer relations among China and Japan. The more tense atmosphere in the second half of the decade had something to do with the declining Soviet-Japanese security relations which linked to warming Sino-Japanese relations.40 Regardless, Soviet-Japanese economic relations continued to expand due to Japan’s quest for natural resources (e.g., coal, iron, and timber) to support its manufacturers and consumers and the Soviet Union’s efforts to develop its Far East, procure foreign exchange, and obtain the vital plant and equipment needed for major resource development projects. It should be noted that economic relations were private and did not involve the Japanese government except where the latter felt a need to intervene for broader political or economic reasons.41 In any event, it is instructive that growing economic interactions failed to warm the bilateral relationship. In the 1980s, the failure of traditional policy to produce progress on the Territories issue led the Japanese government to adopt a policy of seikei fukabun or the inseparability of politics and economics. This meant that the Soviets had to normalize relations before greater economic cooperation was possible. It further meant that the Soviets had to strike a deal on the Territories since resolution was a prerequisite for normalization. In the background was a sense that the USSR’s dire economic condition and General Secretary Gorbachev’s strong desire for Japanese technology and investment gave Japan a lever to coerce the Soviets.42 The rise of Gorbachev also seemed to create a political opening for a settlement because he favored more cooperative tactics to achieve Soviet geopolitical objectives. Specifically, he called for regional security mechanisms in East Asia, arms reductions, and better relations with China and Japan.43

39 40

41

42 43

Nester, supra note 37, at 722; Miller, supra note 37, at 143. Sutter, supra note 37, at CRS4; Andrew Andersen, South Kuriles/Northern Territories: A Stumbling-Block in Russia-Japan Relations (May 2001), http://www.prokarelia.net/en/?x =artikkeli&article_id=600&author=62. Lonny E. Carlile, The Changing Political Economy of Japan’s Economic Relations with Russia: The Rise and Fall of Seikei Fukabun, 67 Pac. Aff. 411, 412–17 (1994). Id. at 417–22. On this, see, for example, Leszek Buszynski, International Linkages and Regional Interests in Soviet Asia-Pacific Policy, 61 Pac. Aff. 213, 213–34 (1988); Chalmers Johnson, Japanese-Soviet

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Despite economic imperatives and new geo-political thinking, Gorbachev and his Foreign Minister Eduard Shevardnadze refused to sanction a settlement.44 In May 1986, in Moscow, after Japanese Foreign Minister Abe Shintaro suggested to Gorbachev that the two countries return to their 1956 Declaration in which the Soviet Union agreed to hand over the Habomai and Shikotan Islands to Japan after the conclusion of a Peace Treaty, Gorbachev sharply responded: You are raising a question that should not be raised at all. This question is concerned with the inviolability of borders that were legitimated by the results of World War II. As long as the Japanese take this approach, there will not be any prospect for resolution.45

Two years later, the Soviets moved in a compromising direction by proposing joint administration and by allowing the Territories to be listed as an agenda item during Shevardnadze’s visit to Tokyo in December 1988. This was not enough, however, and Japan responded by cutting off Japan Export-Import Bank loans for projects in the Soviet Union.46 Various reasons illuminate the inability of economics to lubricate a settlement between 1985 and 1990. One factor might have been Soviet uncertainty about what economic goods Japan really would deliver given skepticism in certain Japanese circles about the value of increased economic interactions with the USSR.47 Even if Moscow anticipated that economic relations would dramatically increase, though, security imperatives hindered an accord. Specifically, the Soviets became less willing to deal the Territories because they gained intensified military-strategic importance, resulting from the fact that the U.S. decided to embrace a forward policy which required it to use its naval superiority and Japan to attack/bottle up the Soviet navy in Soviet waters in order to counter Soviet moves in Europe. A partial deal was not palatable because it would not satisfy Japan. A third factor was that a deal on the Territories might encourage Beijing to demand more from Moscow with respect to their territorial disputes.48 At the 1990 G-7 Summit, while the rest of the world was moving to rush aid, grants, and loans to the weakening Gorbachev regime, Japan offered to provide technical assistance on the condition that the Soviets commit themselves to

44

45 46 47 48

Relations in the Early Gorbachev Era, 27 Asian Surv. 1145, 1148–1149 (1987); Nester, supra note 37, at 719. Tsuyoshi Hasegawa, The Northern Territories and Russo-Japanese Relations, Vol. 2: Neither War Nor Peace 223–40 (1998). Id. at 240. Nester, supra note 37, at 724–25; Hasegawa, supra note 44, at 280–83. Nester, supra note 37, at 719–21. Buszynski, supra note 43, at 213–34.

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a resolution of the Territories conflict.49 No Soviet offer, though, was forthcoming. After extensive preparations in the preceding fall, Gorbachev scheduled a visit to Tokyo in April 1991. Prior to Gorbachev’s visit, rumors circulated that he was going to revive the 1956 Declaration and might even recognize Japanese sovereignty over the Territories. To pave the way for a deal, Liberal Democratic Party (LDP) General Secretary Ozawa Ichiro went to Moscow in March. There, he offered $26 billion in soft loans and grants if the Soviet Union agreed to return the four disputed islands.50 During Gorbachev’s visit to Tokyo, Japan and Russia concluded numerous agreements. To list a few, Tokyo provided an Export-Import Bank loan of $450 million, released $100 million in humanitarian aid, and authorized Japan’s National Oil Corporation to develop Sakhalin natural gas fields. For their part, the Soviets explicitly recognized that the Territories were disputed and promised to reduce military forces in the area, though Gorbachev did not revive the 1956 Declaration. Japanese Prime Minister Kaifu Toshiki repeated Japan’s position that no large scale aid would be forthcoming until progress was made on the Territories. Gorbachev would concede nothing more than the aforementioned acknowledgement, though the Soviets decided to allow visa and passport visits by Japanese nationals to the Territories.51 There is reason to believe Gorbachev was interested in striking a deal on the Territories prior to and during his visit to Tokyo as a result of the collapsing Soviet economy.52 Regardless, he could not because he lacked stateness. One reason is that Soviet hardliners had gained ascendance in the Politburo after the January 1991 Lithuanian crackdown and the ouster of Shevardnadze. Another reason is that the Soviet military opposed a deal viewing the Territories as vital for Soviet national security. Yet another is that Boris Yeltsin, Gorbachev’s main political rival, for political reasons and nationalism, rejected a deal, saying Gorbachev should not “do another Alaska.”53 If Gorbachev had great popular legitimacy or abundant coercive resources at his disposal he might have stood a chance of countering these domestic political forces, but he did not. In short, economic rationales for a resolution of the Territories dispute fell afoul of numerous domestic political ones. After the Soviet Union collapsed, there was newfound optimism in Tokyo. One reason is that Russia badly needed economic help. Another reason is that the new leadership of Russia viewed deeper integration with the APR as essential for politico-economic reasons. Japan, itself, was seen as a top priority because 49 50 51 52 53

Carlile, supra note 41, at 422. Nester, supra note 37, at 725. Id. at 725–26; Hasegawa, supra note 44, at 389–404; Andersen, supra note 40. Carlile, supra note 41, at 421. Nester, supra note 37, at 726.

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of its immense wealth. Yet another reason is that between 1991 and 1992, Russia settled territorial issues with Kazakhstan and the Ukraine and moved to settle its boundary problems with China. In February 1992, it seemed like a breakthrough might be on the horizon with a top Russian Foreign Ministry official remembering the 1875 borders, when Japan controlled the Territories, and Russia’s Ambassador to Japan hinting at a transition period for the return of the Territories. A revolt by Russian communist and nationalist legislators, a backlash by regional leaders, and public opposition blocked a deal.54 At the July 1992 G7 summit in Munich, Japan again made clear it would not open the economic taps for Russia unless there was a deal over the Territories. New hopes surfaced as a result of Russian President Yeltsin’s planned visit to Tokyo in September, with various pundits predicting forward movement on the Territories issue. However, in the period leading up to a summit, negotiators could not reach a consensus. To top it off, Yeltsin cancelled his summit. Yeltsin apparently felt it illogical to go to Japan if the two countries could not make progress on a peace treaty or territorial issues. Yet others posit that military officials and hardliners in Moscow and regional leaders in the Russian Far East forced Yeltsin to cancel his visit. Yeltsin found it difficult to resist these enumerated domestic foes given his diminished political position, which resulted from Russia’s economic decline.55 In late May 1993, Yeltsin was supposed to go to Japan. For a second time, he cancelled, again alienating the Japanese who had agreed to extend $1.8 billion in aid to Moscow, albeit in tied loans, as part of a G-7 initiative. In July, Yeltsin finally made it to Japan for a G-8 meeting where he stressed the importance of bilateral ties and apologized for past trip cancellations. Visiting Tokyo in October for a summit, Yeltsin signed a number of small-scale agreements relating to energy, forestry, and transportation.56 More importantly, his meeting yielded the 1993 Tokyo Declaration (the “1993 Declaration”). Per the Japanese side, this declaration: Clearly defined the territorial issue as being an issue of the attribution of the [Territories] . . . clearly set out that Japan and Russia should conclude a peace treaty by solving the issue of the attribution of the four islands and thereby fully normalize bilateral relations.57

54

55

56

57

Leszek Buszynski, Russia and the Asia-Pacific Region, 65 Pac. Aff. 486, 491–94 (1992); Miller, supra note 37, at 144–45; Andersen, supra note 40. Nester, supra note 37, at 726–27; Carlile, supra note 41, at 426; Miller, supra note 37, at 151; Hasegawa, supra note 44, at 442–45, 447–51, 456–57; Newnham, supra note 6, at 253. Nester, supra note 37, at 727–28; Carlile, supra note 41, at 430; Hasegawa, supra note 44, at 460–62, 476–79, 482–85. MOFA, Japan’s Northern Territories (2008), http://www.mofa.go.jp/region/europe/russia/territory [hereinafter MOFA, Japan’s Northern Territories 2008] (last visited Sept. 28, 2009).

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Adding to the positive atmosphere engendered by the meeting and the 1993 Declaration was Yeltsin’s promise to remove all military troops other than border guards from the Territories. Yet, not long after the 1993 Declaration, Russia imposed visa-restrictions on Japanese citizens and authorized border guards to fire at vessels violating its sea borders.58 During the Gorbachev and early (1992–1993) Yeltsin periods, Soviet/Russia trade with Japan represented only a small percentage of Soviet/Russia GDP. Aggregate trade data, though, does not tell the whole story because it neglects the composition of trade.59 Specifically, the Soviet Union/Russia obtained vital capital equipment from Japan and much desired consumer goods. In addition, for a highly-indebted country in economic crisis like Russia, every bit of trade is essential. Likewise, foreign investment and technology transfers become more vital. Japan was important, too, because of its veto player role in the provision of bilateral and multilateral foreign assistance. Although Japan only provided a small amount of aid, it had the potential to give much more and to facilitate/ obstruct G-7 aid flows. For example, it opposed a generous G-7 aid package in April 1992 and refused to disburse its share of a G-7 package until progress was made on the Territories.60 In short, Russia gave up quite a bit economically by not resolving its territorial problem with Japan.61 A significant meeting took place in April 1996 when Japanese Prime Minister Hashimoto Ryutaro and Russian President Yeltsin, meeting in Tokyo, confirmed their intention to speed up preparatory work for a future peace treaty based on the 1993 Declaration and agreed to raise the level of treaty negotiations.62 A later summit in November 1997 in Krasnoyarsk championed Japanese investments in Russia, the involvement of Japanese companies in the modernization of infrastructure in the Russian Far East, and Japanese acceptance of the Russian bank guarantees for Japanese investment. Blindsiding many in Russia, it also called for the conclusion of a peace treaty by 2000, accompanied by a resolution of the Territories issue. Following this, Russia, as part of a Fisheries agreement, allowed Japanese boats to fish in the waters of the Territories while 58 59

60

61

62

MOFA, Japan’s Northern Territories 1999, supra note 37; Andersen, supra note 40. The importance of considering the composition of trade is highlighted by Jean-Marc F. Blanchard & Norrin M. Ripsman, Measuring Economic Interdependence: A Geopolitical Perspective, 1 Geopolitics & Int’l Boundaries 225 (1996). On Soviet/Russian-Japanese economic linkages and Japan’s veto player role in international institutions, see Nester, supra note 37, at 728–32; Carlile, supra note 41, at 423–27; Newnham, supra note 6, at 252. One might argue that Russia may have thought it was not giving anything because either the rest of the G-7 would give the amount or would have pressured Japan to give Russia aid. However, the fact is that Russia definitely wanted Japanese assistance and a more normal relationship with Japan. For background, see Buszynski, supra note 54, at 495–96. Andersen, supra note 40.

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Japan offered Russia $1.5 billion in untied aid for military housing and supported Russia’s membership in the Asia-Pacific Economic Cooperation (APEC) forum.63 A summit in Kawana, Japan, in April 1998 dealt explicitly with territorial and maritime issues, but yielded no compromise. Russia, though, agreed to reduce its military presence in the Territories. Japan subsequently “rewarded” Russia by transferring a $600 million tranche of a $1.5 billion credit to Russia and approving various projects such as a fish cannery in the Kuriles. At the Kawana summit, Prime Minister Hashimoto put forth a proposal whereby Russia would recognize the Territories as Japanese with an actual transfer to take place at some later date. Six months later new Japanese Prime Minister Obuchi Keizo met with Yeltsin in Moscow. They signed an agreement calling for multifaceted cooperation, with Japan offering some moneys to support various activities in Russia. Despite Japanese entreaties and economic deals, Moscow rejected the idea of accepting Japanese sovereignty over the Territories in principal even if Japan tolerated a delayed transfer in practice.64 In 1999, Yeltsin was scheduled to go to Japan, which would have been one of his last major overseas trips as Russian President, but domestic pressure forced yet another cancellation. Even if he went, there was little prospect of him successfully concluding an accord because of domestic politics. Not long after former Prime Minister Hashimoto went to Moscow in November 1999 to try to accelerate a deal, the Russian parliament passed a statement noting that there was no possibility of it ratifying a deal involving the transfer of the Territories back to Japan or any steps which reduced Russian sovereignty over them.65 Between 1993 and the last year of Yeltsin’s term in office, Russo-Japanese trade trended to lower levels. Although there were years that it spiked back to “traditional levels,” bilateral trade largely ran under $5 billion. Japanese investment, technology transfers, and lending also remained relatively limited. Moreover, with the G-7 ending its provision of massive economic assistance to Russia, Japan’s role as a spoiler lost some salience. Together, these facts would make it seem that Japan had many economic goods to offer Russia. On the contrary, Japan remained important as a buyer and supplier and as a trade partner for and investor in the Russian Far East. Furthermore, Russia’s economic situation between 1993 and 1998 was quite poor, which meant it needed partners. Indeed, the potential existed for much greater interaction. Russia’s precarious 63

64 65

Leszek Buszynski, Russia and Northeast Asia: Aspirations and Reality, 13 Pac. Rev. 399, 407–10 (2000); Andersen, supra note 40; Newnham, supra note 6, at 256. Andersen, supra note 40. Jianwei Wang, Territorial Disputes and Asian Security: Sources, Management, and Prospects, in Asian Security Order: Instrumental and Normative Features 380, 409 (Muthiah Alagappa ed., 2003).

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situation would have established a ceiling on interactions, but even a bounded upper limit was more than what the status quo offered. Summarizing the Yeltsin years, Japan would not allow the economic relationship to bud fully in the absence of Russian movement on the Territories’ dispute. For its part, Moscow would not budge despite the country’s economic needs and the risk to extant bilateral economic linkages. Domestically, Yeltsin lacked adequate stateness to strike a deal. Externally, although he remained interested in a good working relationship with the West, Yeltsin shifted over time to a more “Eurasianist” position, which weakened international political incentives to bargain with Japan in an effort to curry favor with the West. Finally, the chaotic foreign policy situation in Russia through most of the Yeltsin years resulted in the pluralization of Russian Japan policy with Prime Ministers, nationalists, military officials, regional actors, and so on all jostling “to set the tone and substance” of the Japan-Russia relationship.66 Vladimir Putin became Russian President at the end of 1999. The following year, he proposed a compromise on the basis of the 1956 Declaration. In March 2001 (the “Irkutsk Statement”), Prime Minister Mori Yoshiro and Putin confirmed the legal validity of 1956 Declaration in writing for the first time. They also affirmed that a peace treaty should be concluded by solving the attribution of the Territories on the basis of the 1993 Declaration. The problem was that for the Russians the 1956 Declaration meant the return of Shikotan and the Habomais while for some Japanese it meant the return of the Territories in their entirety.67 Between 2001 and 2003, the two sides moved further apart because Mori’s successor, Prime Minister Koizumi, insisted on a return of all the Territories as a precondition to a peace treaty. Despite this, in January 2003, Koizumi and Putin, meeting in Moscow, adopted the Japan-Russia Action Plan. Among other things, this Action Plan cited the 1956 Declaration, the 1993 Declaration, and the 2001 Irkutsk Statement as the basis for further negotiations. Evidencing the limits of the 2001 and 2003 meetings to lay a foundation for a resolution of the Territories problem, there was no notable forward progress between 2004 and 2007. A Putin and Koizumi meeting on the sidelines of the 2004 APEC meeting in Chile, a summit in Japan in 2005, a meeting on the sideline of the 2006 APEC meeting in Vietnam, a meeting on the sideline of the G8 Summit in Germany in June 2007, and a meeting on the sideline of the 2007 APEC Meeting in Australia yielding nothing more than boilerplate state66 67

Miller, supra note 37, at 137–38, 140–41. This and the next paragraph are based on Andersen, supra note 40; Russian anger over Kuril Pledge, BBC News, Feb. 8, 2002, available at http://news.bbc.co.uk/1/hi/world/asia-pacific/1808700. stm; Leszek Buszynski, Oil and Territory in Putin’s Relations with China and Japan, 19 Pac. Rev. 287, 295–98 (2006); MOFA, Japan’s Northern Territories 2008, supra note 57.

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ments of positions and vague statements of intent.68 Indeed, the 2001 and 2003 meetings exerted no constraining effect on Koizumi who conducted a provocative inspection of the Territories in September 2004. And, despite repeated references to the 1993 Declaration, the Russians showed no real inclination to do a deal over all the Territories.69 During Putin’s tenure in office, Russo-Japanese economic ties increased significantly. For instance, in 2003, Japanese exports to and imports from Russia hit record highs. Unlike the relatively paltry annual trade figures of the late 1980s and most of the 1990s, Russo-Japanese trade reached a noteworthy $60 billion. And in 2003, Japanese FDI in Russia was 130 percent higher than the previous year. In 2004, Japan became the largest single investor in the Russian Far East while Japanese utilities signed long-term agreements with diverse Russian partners for energy supplies. Also important was the potential for added Japanese energy investment in Siberia if the two countries resolved their dispute over the Territories.70 In contrast to most of the years of the Yeltsin administration, the Russian economy experienced tremendous progress under Putin. Profiting from surging energy and mineral prices, Russia experienced rapid growth, accumulated massive foreign currency reserves, and underwent an infrastructure construction boom. In tandem with these gains, foreign investment poured in, the Russian stock market soared, and Russian firms began to purchase assets overseas.71 Given this, the relative attractiveness of Japanese goods, money, and technology declined. If Russia could not get these items from Japan at a reasonable political or economic price, it could easily get them elsewhere. Thus, Japanese economic incentives had reduced potential to affect a deal. Nevertheless, Moscow still saw an intensified relationship with Japan as desirable. Expanded economic ties would help to give Russia leverage against China which many Russian elites viewed as a threat for historical, economic, and demographic reasons. Additionally, enhanced economic linkages with Japan would help to minimize the country’s dependence on Chinese markets and goods. Japan was seen as a potentially important partner, too, in the development of Russian natural resource endowments and as a market for Russian raw materials. Ironically, energy also created incentives for rigidity since Putin and 68 69

70

71

MOFA, Japan’s Northern Territories 2008, supra note 57. David Pilling, Koizumi’s Diplomatic Gamble on Islands Faces Long Odds, Fin. Times, Sept. 1, 2004, at 6; David Pilling, Japanese Premier “Inspects” Disputed Islands, Fin. Times, Sept. 3, 2004, at 5; Kosuke Takahashi, The Convoluted Case of the Coveted Kurils, Asia Times Online, Nov. 25, 2004, http://atimes01.atimes.com/atimes/Japan/FK25Dh01.html. Pilling, supra note 69; Takahashi, supra note 69; Mariko Sanchanta, Tokyo and Moscow Seek to Resolve Territorial Dispute, Financial Times, Nov. 21, 2005, at 3. See, e.g., Clifford Gaddy, Fiona Hill, Igor Danchenko, & Dmitry Ivanov, The Russian Federation, The Brookings Foreign Policy Studies: Energy Security Series (2006).

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others felt Japan’s desire for Russian energy would make Tokyo more amenable to Moscow’s preferences.72 Politics and economics played a role in Putin’s embrace of the 1956 Tokyo Declaration. In regards to the former, Russia was, as noted, concerned about China’s rise and its own dependence on China and saw progress on the Territories problem as a mean to construct better relations with Japan. In regards to the latter, Russia, despite the economic successes of the Putin years, still saw Japan as a significant economic partner.73 Even superficially economic objectives, though, often had a political dimension. Specifically, Moscow saw economic development in the Russian Far East, with Japanese support, as one way to contain the region’s fissiparous tendencies. None of these political and economic considerations, though, was powerful enough to push Putin beyond acceptance of the 1956 Declaration.

V. Politics and the Non-Settlement of the Territories Dispute Continuing non-progress on the Territories issue is paradoxical if we approach the problem with an economic mindset. Fifteen years ago, William Nester observed that “Japan and Russia need each other. Few relationships make more economic sense. Japan is the world’s leading manufacturing, financial, and technological power but is natural resource poor, while Russia . . . is natural resource rich.”74 While Nester’s data are old, his conceptual point that the two economies are complementary remains true today. Moreover, the Russian Far East needs Japanese investment, technology, and trade. Yet Russia refused to contemplate a full return of the Territories. Part of this has to do with the absence of any pressing geopolitical imperatives. For instance, Russia did not seek to split Japan from the U.S. as in 1956. Not to be neglected in understanding Russian policy towards the Territories are ideational shifts that have taken place in Russia. Significantly, Russian elites began to put great stock on reestablishing Russia’s status as a great power, which, in turn, implied a greater stress on national sovereignty, independence, territorial integrity, prestige, and dignity.75 Furthermore, from a country which once sided automatically with the West, Russia shifted to a pragmatic national-

72 73

74 75

Buszynski, supra note 67, at 287–303. Buszynski argues that acceptance of the 1956 Declaration was a way for Russia to demonstrate its commitment to legality which Japanese business interests much desired. Id. at 298. Nester, supra note 37, at 717. Allen C. Lynch, The Realism of Russia’s Foreign Policy, 53 Europe-Asia Stud. 7, 7–8 (2001); Stanislav Secrieru, Russia’s Quest for Strategic Identity, 18 NDC Occasional Paper 1, 1–6 (2006), available at http://www.ndc.nato.int/download/publications/secrieru.pdf.

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ist stance. Essentially, this meant that Russia would no longer slavishly follow one country, region, or set of foreign policy tactics and would make decisions on a case-by-case basis to realize its interests as a great power.76 These ideational shifts meant there were fewer desires to compromise on territorial issues. They did not mean, however, territorial deals could not be concluded. After all, Moscow struck deals with China in 2001 and 2004. But these deals were associated with pressing geopolitical imperatives and some concessions on China’s part. There is no doubt that Putin could have decisively resolved the Territories quarrel if he so desired. While he could not rule in the mold of past Soviet Communist Party General Secretaries, Putin had high stateness for most of his tenure as President. He had high autonomy as a result of the Russian constitution, his strong standing in his political party, and his political party’s strength in the Russian parliament. He had high capacity due to the strength of Russia’s coercive apparatus, the size of the Russian bureaucracy, and the Russian government’s surging tax coffers. Lastly, he had high legitimacy deriving from his success in prosecuting the war in Chechnya, his aggressive defense of Russian national interests, and the resurgence of the economy.

VI. Lessons for the Dokdo Dispute Japan-South Korea economic ties are quite extensive. There are high levels of trade between the two countries. Whereas bilateral trade was $31 billion in 1990, it reached $52 billion in 2000, and $73 billion in 2007. In addition, both countries are meaningful investors in the other with bilateral FDI flows in the billions, excluding cross-border portfolio investments. Furthermore, there are large numbers of South Korean and Japanese tourists visiting each other’s countries annually. As well, the two countries consume a number of the other country’s cultural products including food, film, and music. Finally, there are many economic institutional ties between the two countries resulting from their participation in Northeast Asian currency swap arrangements, energy meetings, and diverse Northeast Action Dialogues.77 76

77

This distills material in Igor Ivanov, The New Russian Identity: Innovation and Continuity in Russian Foreign Policy, 24 Wash. Q. 7, 7–10 (2001); Andrei P. Tsygankov, New Challenges for Putin’s Foreign Policy, 50 Orbis 153, 157–63 (2006); Tom Casier, Putin’s Policy towards the West: Reflections on the Nature of Russian Foreign Policy, 43 Int’l Pol. 384, 387–88 (2006); Secrieru, supra note 75, at 21, 35–38; Andrei P. Tsygankov, Finding a Civilizational Idea: ‘West,’ ‘Eurasia,’ and ‘Euro-East’ in Russia’s Foreign Policy, 12 Geopolitics 3, 7–8, 11–12 (2007). Asian Dev. Bank, Key Indicators for Asia and the Pacific 2008: Republic of Korea, http:// www.adb.org/Documents/Books/Key_Indicators/2008/pdf/KOR.pdf (last visited Sept. 28, 2009); MOFA, Japan-Republic of Korea Relations (2009), http://www.mofa.go.jp/region/asia-paci /korea/index.html (last visited Sept. 28, 2009).

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This high level of economic interdependence suggests economics may have potential as a palliative for the Dokdo dispute. My study of the Sino-Japanese ECS and Islands disputes and the Territories issue, however, indicates such a view is unwarranted. For meaningful solutions to be found, politics must be put in command. My analysis specifically demonstrates the importance of geopolitical imperatives in spurring a resolution of territorial and maritime controversies. For instance, China’s pursuit of a peaceful external environment, its interest in creating a calm atmosphere for the 2008 Beijing Olympics, and its desire to defuse perceptions of a China threat made it willing to strike a maritime deal with Japan. As well, a case can be made that the Soviet Union/Russia’s most generous post-Second World War offer to compromise on the Territories came when the Soviet Union wanted to prevent the conclusion of a U.S.-Japan Security Treaty. A crucial implication of my analysis for the Dokdo dispute is that JapaneseSouth Korean negotiators must pay attention to the other side’s stateness in determining when to initiate discussions. It does not make sense to pursue a deal when an accord would require a significant compromise by Japanese or South Korean leaders and those leaders lack stateness. Similarly, diplomats should not expend significant capital to seek a deal if elites or the public on the other side favors a deal, but leaders on the other side reject a deal and have high stateness. This study also suggests that negotiators need to consider the other side’s stateness when they decide what kind of a deal to pursue. It is unrealistic to expect the other side to embrace significant concessions if the leader who would have to make them lacks stateness and domestic forces oppose a deal. The flip side is that diplomats pressed to conclude a deal must be prepared to offer a generous deal if they are dealing with a leader with weak stateness and strong domestic opposition to a deal. The notion of stateness suggests a potentially more fruitful way to use economics to influence politics. Instead of assuming a web of economic ties or massive economic incentives will yield political success, Japan and/or South Korea policymakers should structure economic exchange or economic inducements in a manner that empowers leaders inclined to compromise. To illustrate, economic incentives might profit a particular segment of the population where a prospectively accommodating leader’s legitimacy is weak. Needless to say, the party offering such incentives must be very careful how they structure such lures given that they can be seen as bribes. Furthermore, people often have an aversion to anything which seems to entail the trading of property (territory) for profits. The final insight offered by the preceding case studies, specifically the ChinaJapan ECS case study, is that the deal that Japan and South Korea conclude

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may address only part of the entire Dokdo controversy. This has several ramifications, both positive and negative. In regards to the positive, it gives optimism that it may be possible to strike some deal even if the two sides cannot reach agreement on the Dokdo dispute in its entirety. With respect to the negative, each side needs to recognize it may not get a total settlement and thus that the realization of a deal may actually engender significant disappointment. This means that political leaders either must prepare their publics or prepare for a possible backlash.

VII. Conclusion Herein, I analyzed the potential for economics, either in the form of economic interdependence or economic incentives, to resolve conflicts over territorial and maritime boundaries. I did this with two case studies, an examination of (a) territorial and maritime disputes between China and Japan and (b) territorial quarrels between Japan and Russia. In both instances, the economic optimist position was found wanting. Economic interdependence did not settle Sino-Japanese territorial and maritime frictions, contributing, at best, to a partial resolution of their maritime disputes. Moreover, economics actually fueled Sino-Japanese territorial and maritime tensions. Turning to the Territories controversy, my analysis shows that Japanese economic incentives, whether specific or general, failed to lubricate a settlement. My analysis reveals that analysts and policymakers must give greater attention to political factors if they truly wish to understand the factors that facilitate and obstruct the resolution of territorial and maritime boundary problems. My analysis, though, went beyond this relatively obvious insight – though economic optimists continue to neglect it – to highlighting the importance of focusing on domestic politics, conceptualized through the variable of stateness, to appreciate the dynamics of quarrels over borderlines on land and in the sea. The fact that stateness is relevant has significance for policymakers as elaborated above in my presentation of the lessons of my analysis for those attempting to resolve the Dokdo dispute between South Korea and Japan. With respect to the Territories case, one might retort that the Soviet Union/ Russia never really expected Japan to deliver the goods given Japanese aversion to investing in/dealing with a country with high corruption levels, political instability, currency convertibility/instability problems, significant red tape, and the like. Thus, the Territories case does not show that economic incentives do not work, but rather that low economic incentives do not work. The premise of the aforementioned critique is problematic, though, given that Japan did have substantial economic dealings with the Soviet Union/Russia and that Japan

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offered Russia so much economically on so many fronts (trade, investment, technology, regional integration, and so on). In the final analysis, the problem was not low economic incentives, but politics. There are some limitations to this analysis that I hope to address going forward. One is that I need to investigate further the reasons behind the specific configuration of the 2008 ECS agreement. Another is that I need to weigh the importance of other geopolitical incentives in driving China and Japan to a partial settlement in 2008. Mark Valencia, for instance, suggests the need to deal with ECS pollution and fisheries depletion as well as to create an environment conducive to energy development played a role in warming Sino-Japanese relations.78 A third limitation is that I need to get a better sense of the reasons for the complete absence of a compromise on the Islands dispute between China and Japan. Territorial and maritime disputes are some of the most contentious issues in international politics. In some cases, they have led to heated words, severed diplomatic relations, and damaged economic relations. In others, unfortunately, they have spurred low-level military exchanges or, worse, war. It thus behooves international relations analysts, students of territorial and maritime disputes, and APR specialists to look at ways to diffuse them. This work demonstrates clearly that analysts and policymakers must be sensitive to political factors, domestic and international, if they hope to deal with this most challenging form of interstate dispute.

78

Valencia, supra note 5, at 157–58.

Index Terms adjacency, 8, 125–127, 138–139, 143, 153, 156 Africa chartered companies, 105, 117 distortion of history, 94–95 European powers, 97–98, 101–102, 104–108, 173 stereotypic labeling, 95 treaties of cession, 101, 107–108 Ahn, Yong-bok, 160–161, 166–167 Allied powers, 6, 17, 19–20, 30, 42, 46–49, 53, 63, 65, 93, 124, 192 Anglo-German Agreement (1913), 7, 113, 115, 117, 119 appendage, 8–9, 139, 143, 145–146, 149, 152, 154, 156, 170, 175, 190, 193–194, 201, 205 arbitration cases Anglo-French Arbitration, 37 Aves Island Arbitration, 132 Beagle Channel Arbitration, 174 Brazil vs. British Guiana, 127 Bulama Island Arbitration, 132 Difference Relative to the Sovereignty over Clipperton Island, 34 Eritrea-Yemen Arbitration, 37, 134, 152, 173–174 Maritime Boundary between Guinea and Guinea-Bissau, 168 Palmas Island Arbitration, 119, 136, 144, 147 Rann of Kutch Arbitration, 128 St. Pierre and Miquelon Arbitration, 38 Walfish Bay Boundary case, 127 Association of Southeast Asian Nations (ASEAN), 217, 221, 234 baseline, 75, 77–78, 82, 86, 130–131, 134, 141, 144 Beer, George Louis, 106, 110–112 Berlin Conference of 1884–85, 92, 105–109, 115, 117–118, 122 British South Africa Company, 99, 105 Busch, Herr, 107

Cairo Declaration (1943), 19, 42, 92–93, 178, 192, 199, 201, 206 Cameroon, 17, 91, 93, 113–115 Channel Islands, 146, 148, 194 Charney, Jonathan, 32, 36, 38 China Chunxiao gas field, 211, 229, 232 relations with Soviet Union/Russia, 212–213 relations with Japan, 10, 226, 227, 230, 232–233, 236, 248 See also Diaoyudao; East China Sea Cold War, 4, 14, 21, 30, 42, 54, 66 colonial protectorates, 117, 122 colonialism, 1, 3, 7–8, 91–94, 103, 107, 109–112, 121–122 Commonwealth Japanese Treaty Working Party, 59–61 contiguity, 8, 31, 93, 125–129, 131–134, 136–139, 143, 148–149, 151, 154, 156, 172–173 continental shelf delimitation, 7, 71, 74, 77–83, 87, 168 Commission on the Limits of the Continental Shelf, 131 Convention on the Continental Shelf (1958), 33, 79 joint development, 27 Diaoyu Islands. See Diaoyudao Diaoyudao annexation by Japan, 201, 203–204 appertaining to Taiwan, 196, 199 historical facts, 196–201 impact on delimitation, 205 position of China, 33, 44, 201–201 position of Japan, 202 position of Taiwan, 43–44 legal analysis, 202–205 San Francisco Peace Treaty (1953), 56 similarities with Dokdo, 205–206 Dokdo annexation by Japan, 16, 30, 124, 178–179, 191, 193

250

Index Terms

appendage of Ulleungdo, 9, 190, 193, 205 historical facts, 29, 158–166, 190–192 impact on delimitation, 31, 36, 195–196 Japanese perspectives, 2–4 moral perspective, 14–15, 24–25 original title, 123 position of Japan, 44–45 position of Korea, 44 position of the United States, 59–65 prescription, 9, 123, 194–195, 205 proximity to Japan (Oki Island) and Korea (Ulleungdo), 5, 31, 93, 125, 156, 190 San Francisco Peace Treaty (1953), 58–62 vacant island policy, 164–165 Dulles, John Foster, 18, 24, 59, 207, 214, 218 East China Sea delimitation, 9, 189, 206, 225, 232 dispute between China and Japan, See Diaoyudao continental shelf, 40, 201, 205, 225, 227 East Sea maritime boundary, 31, 36, 39 designation dispute, 181–182, 196 economic interdependence, 10, 224, 230–231, 246, 247 effective occupation, 97, 116, 128, 130, 133, 136, 138, 155, 193, 203 exclusive economic zone (EEZ) dispute between China and Japan, 9 dispute between Japan and Korea, 6–7, 72–73, 76–78, 180–181, 195–196 effect of rocks, 31–36, 195 littoral coastlines, 180–181 marine scientific research, 84–86, 89 UNCLOS, 80 Gasgoigne, Alvary, 24 George, Lloyd, 112 Gorbachev, Mikhail, 212, 215–216, 219, 225, 236–238, 240 Hawar Islands, 138–139, 154 homeland territory, 10, 210, 213, 221 Hegel, Georg Wilhelm Friedrich, 94 hinterland, 126–128 imperialism, 119, 121, 196 International Court of Justice Al-Khasawneh, Awn, 115, 117–118, 120–122

Anglo-Norwegian Fisheries Case, 141 Bernárdez, Torres, 152 El Salvador vs. Honduras, 132, 145, 148, 152, 155 Eurocentric international law, 7, 91, 117 Gabcíkovo-Nagymaros Project, 68 Gulf of Maine Case, 37, 168 Koroma, Abdul, 118 Land and Maritime Boundary between Cameroon and Nigeria, 91–92, 113–122 Libya/Malta Continental Shelf Case, 37–38, 168 Maritime Delimitation Between Nicaragua and Honduras, 34, 38, 135, 153 Minquiers and Ecrehos Case, 146, 151, 194 North Sea Continental Shelf Case, 36, 79, 173 Qatar v. Bahrain, 37–38, 118, 134–135, 138–139, 154 Romania v. Ukraine, 38 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, 35, 134–135, 147–148, 167, 173, 212 Tunisia/Libya Continental Shelf Case, 37, 168 Western Sahara Case, 104, 106–107, 108, 173 International Tribunal for the Law of the Sea Volga, 32 Vukas, Budislav, 31 intertemporal law, 94, 119–122, 203 Japan comfort women, 25, 40, 177, 184–186 compensation/restitution, 5, 15, 18, 21–27 Diet, 18, 44, 177, 200, 228, 232 history issue, 177, 184–185, 187–188, 233 Maritime Self-Defense Forces, 228 Meiji Reform, 198 relations with China, 10, 226, 227, 230, 232–233, 236, 248 relations with Korea, 9, 26, 30, 68, 177, 179, 188, 221 relations with Soviet Union/Russia, 51, 54, 215–216, 218, 220–221, 237, 239, 242–244 relations with Taiwan, 226 restoration of sovereignty, 14, 25 Takeshima claim, See Dokdo Jennings, Robert, 119, 128, 134 jus cogens, 120

Index Terms Koizumi, Junichiro, 220, 230, 233, 242–243 Korea claim to Dokdo, See Dokdo concern over Japanese remilitarization, 187–188 Japan bashing, 9, 183, 187–188 protectorate of Japan, 3, 29–30, 178, 191 Kurile Islands history, 235–244 position of Japan, 43 position of Russia, 43 position of the United States, 53–55, 214 San Francisco Peace Treaty (1951), 46–51 Lawrence, Thomas J., 104–105, 117 League of Nations, 109–110, 114 Liancourt Rocks. See Dokdo Lindley, Mark F., 108, 133 MacArthur, Douglas, 23–24 natural prolongation, 40, 79, 127, 131, 168, 225–226 natural unity of islands rule, 143–149, 156 Nigeria, 7, 91, 93, 113–114, 117, 122 Northern Territories. See Kurile Islands Okinawa Reversion Treaty, 57–58, 200, 202, 204, 206 Okinotorishima, 33, 36, 39 Park, Choon-ho, 27 peripheral territory, 211–212, 215 Potsdam Proclamation (1945), 19, 42, 48–49, 61–62, 178, 192, 201, 204, 207 Rusk, Dean, 18, 60, 62–63 Russia dispute with China, 212–213 dispute with Japan, See Kurile Islands economic relations with Japan, 236–244 Russo-Japanese War, 2, 9, 178, 189, 191, 196, 205–206 Ryukyu Islands, 54–57, 196–200, 202, 204–207, 214, 218 San Francisco Peace Treaty (1951) Article 2, 46, 53–54, 60–62, 67–68, 214

251

Article 3, 6, 56–59, 67, 199 Article 14, 20 Article 22, 61 literalist reading, 14, 22–23 role of U.S. Department of State, 64 U.S. trusteeship, 6, 199, 202, 214 Sea of Japan. See East Sea Sebald, William J., 54, 59, 63 self-determination, 67, 109–112 Senkaku Islands. See Diaoyudao Serita, Kentaro, 180–182 Shimane Prefecture, 1, 62, 68, 162, 183, 191, 193, 195 Shimoda, Treaty of, 214–215 Shimonoseki, Treaty of, 42, 198, 202–205 Sino-Japanese Fisheries Agreement, 228 Sino-Japanese War, 9, 42, 189, 191, 198–199, 201–206 Smuts, Jan, 110 sub-surface evidence, 8, 167, 169 Supreme Commander for the Allied Powers in Japan (SCAP), 63, 179, 192 Takeshima. See Dokdo Takeshima Day, 183–184 territorial unity, 125–126, 138 thalweg, 133, 150, 219 Thruston, A.B., 102, 108 Toshiki, Kaifu, 238 treaty of protection, 116, 120 United Nations Charter, 68, 206 trusteeship, 56, 67 United Nations Convention on the Law of the Sea (UNCLOS) Article 3, 130 Article 7, 75, 131, 141 Article 10, 130 Article 13, 134 Article 46, 131, 144 Article 47, 131, 144 Article 49, 131 Article 56, 72, 84 Article 63, 84 Article 74, 79–81 Article 83, 79–81 Article 111, 71 Article 121, 31–32, 34–36, 38

252

Index Terms

Article 246, 84 Article 298, 86 United States occupation of Japan, 4, 17, 23–25, 204 trusteeship, 199, 202, 214 Versailles, Treaty of, 109, 114 Vienna Convention on the Law of Treaties Article 31, 120 Article 64, 120

Watts, Arthur, 122 Wen, Jiabao, 229, 231 Westlake, John, 96–101, 103, 106–107, 116 Yalta Agreement, 42, 46, 49, 53 Yamato Tai, 83, 88, Yasukuni shrine, 2, 24, 230 Yeltsin, Boris, 43, 45, 215–218, 238–243 Yoshida, Shigeru, 18, 24