Japan‘s claims over peace treaty invalid
This is the second of a five-part series examining Korean and Japanese claims regarding Dokdo and the San Francisco Peace Treaty in 1951 that fell short of clearly defining the legal ownership of the rocky islets in the East Sea. –– ED.
By Lee Tae-hoon
Records suggest that Korea failed to produce convincing evidence that Dokdo, the country’s easternmost islets, had been under its jurisdiction when the Allied Powers negotiated the details of a peace treaty with Japan following the end of World War II.
Today, any educated Korean will be able to come up with a host of historical documents and maps that clearly show Korea exercised its sovereignty over Dokdo, but few had access to them when Japan lobbied the United States to reverse the Allied Powers’ decision to reaffirm Dokdo’s return to Korea.
According to Shin Yong-ha, a professor emeritus at Seoul National University, even Korean Ambassador to the U.S. Yang You-chan and his first secretary Han Pyo-wook could not pinpoint the location of Dokdo when U.S. Secretary of State John Foster Dulles requested it.
He claims that Koreans were eager to add Dokdo in the peace treaty as they were well aware that it was the first Korea territory that Japan illegally annexed five years prior to the colonization of the entire Peninsula in 1910, but they were not up to the task.
In contrast, Japan attacked Korea’s ignorance of Dokdo at the onset of peace treaty negotiations in 1947 by circulating an English pamphlet, titled Minor Islands Adjacent to Japan Proper, that falsely claimed both Dokdo and the adjacent island Ulleung were parts of its territory.
Shortly after the 35 years of colonial rule by Japan ended, a fratricidal war broke out on the Korean Peninsula in 1950 when Tokyo was ramping up its efforts to persuade the United States to revise early drafts of the peace treaty to include Dokdo as Japan’s territory.
It was evident that the Allied Powers, including Britain and New Zealand, recognized Dokdo as a part of Korean territory upon Japan’s unconditional surrender to the Allied Forces.
In fact, the first five drafts of the peace treaty written between March 19, 1947 and Nov. 2, 1949 excluded Dokdo from Japanese territory in line with the Allied Powers’ earlier decision to return it to Korea by the Supreme Commander for the Allied Powers Instruction (SCAPIN) No. 677 issued on Jan. 29, 1946.
“Japan hereby renounces all rights and titles to Korea and minor offshore Korean islands, including Quelpart Island (Jeju Island), Port Hamilton (Geomun Island), Dagelet Island (Ulleung Island) and Liancourt Rocks (Dokdo.),” the first drafts of the treaty read.
However, as the Japanese Foreign Ministry states in its website, the United States later rejected Seoul’s request to specify the rocky islets as among the islands that Tokyo must renounce on the assumption that Dokdo should remain under Japanese control.
“As regards to the island of Dokdo, otherwise known as Takeshima or Liancourt Rocks, this normally uninhabited rock formation was according to our information never treated as part of Korea and, since about 1905, has been under the jurisdiction of the Oki Islands Branch of Shimane Prefecture of Japan,” U.S. Secretary of State Dean Rusk wrote on Aug. 9, 1951 in a letter to the Korean Ambassador Yang.
“The island does not appear ever before to have been claimed by Korea.”
Why US changed stance?
Documents show that the United States excluded Dokdo as part of Korea’s territory in some of later drafts of the peace treaty, including the ones made on Dec. 8 and 29 in 1949, on Jan. 3, 1950, and April 7, 1951.
They suggest that New Zealand and other Commonwealth countries strongly objected to Washington’s unilateral move, saying the treaty should “ensure that none of the islands near Japan were left in disputed sovereignty.”
Nevertheless, the last five final drafts of the treaty drawn up between June 14 and Aug. 13 in 1951 left out Dokdo by stating that “Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart (Jeju Island), Port Hamilton (Geomun Island) and Dagelet (Ulleung Island).”
In this regard, Kim Yong-hwan, a senior researcher at the Northeast Asian History Foundation, claims that Washington briefly shifted its stance and mulled giving Dokdo to Japan for political gains.
“It is true that the United States did not have sufficient information to make a conclusion as Korea could not produce such documents as Japan’s Minor Islands Adjacent to Japan Proper,” he said.
Prof. Shin argues that Tokyo managed to convince the United States to include Dokdo as part of Japan’s territory through a fabrication of the truth and its proposal to let the U.S. forces use them for military operations.
Change of heart
Kim stressed that the United States had a change of heart not only due to the lack of information, but more importantly for its own political interest.
“The U.S. feared a rise of communism in the Northeast Asian region and anti-American sentiment in Japan after the signing of the peace treaty which many Japanese saw as punishment,” he said.
Kim said Washington softened its stance on Dokdo partly because of a lesson that France’s harsh treatment of Germany after World War I led to anti-French sentiment in Germany and eventually World War II.
“It would be more accurate to say Washington left out Dokdo in the final text of the San Francisco Peace Treaty for its strategic interest in the region, rather than to say Japan’s argument was compelling and Korea’s argument was substandard.”
He noted that the United States stayed neutral on the Dokdo issue in the end and declined to accept Japan’s repeated demand to specify the controversial islets as Japan’s territory in the peace treaty.
“America viewed the territorial dispute was a matter that Japan should settle with Korea, rather than the one it should help settle for it by using its influence,” he said.
Binding power of treaty
No one would deny that the peace treaty that the allied countries, including the United States, signed with Japan in San Francisco on Sept. 8, 1951 formally ended World War II.
However, the multilateral pact does not have any binding power or obligation imposed on Seoul over Dokdo since Korea was not a party to the peace agreement, nor was invited to the San Francisco Peace Conference.
Kim argues that under international law, the San Francisco Peace Treaty can have a legal validity in reaffirming Korea’s sovereignty, but cannot be used as legal grounds claiming Korea’s renouncement of Dokdo, even if it specified Korea should abandon the rocky islets.
This is because Article 34 of the Vienna Convention states that “A treaty does not create either obligations or rights for a third state without its consent.”
“An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing,” it reads.
Kim said Japan should stop interpreting the peace treaty as a means of depriving Korea’s right to exercise sovereignty over Dokdo, which Korea controlled since 512 A.D.
Treaty of Peace with Japan
28 April 1952
Signed in San Francisco on Sept. 8 1951
Entered into force: April 28, 1952
(a) The state of war between Japan and each of the Allied Powers is terminated as from the date on which the present Treaty comes into force between Japan and the Allied Power concerned as provided for in Article 23.
(b) The Allied Powers recognize the full sovereignty of the Japanese people over Japan and its territorial waters.
(a) Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart (Jeju Island), Port Hamilton (Geomun Island) and Dagelet (Ulleung Island).
(b) Japan renounces all right, title and claim to Formosa and the Pescadores.
(c) 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.
(d) Japan renounces all right, title and claim in connection with the League of Nations Mandate System, and accepts the action of the United Nations Security Council of 2 April 1947, extending the trusteeship system to the Pacific Islands formerly under mandate to Japan.
(e) Japan renounces all claim to any right or title to or interest in connection with any part of the Antarctic area, whether deriving from the activities of Japanese nationals or otherwise.
(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.