Dokdo's sovereignty and original title

By Doh See-hwan

Again this year, the Japanese government continued to push ahead with an event called “Takeshima Day,” which was declared through Shimane Prefecture in 2005 to commemorate the history of the invasion on Dokdo sovereignty in Korea in 1905.

In the same vein, it must be noted that the Japanese Territorial Sovereignty Exhibition Hall, which reopened in 2020, has emphasized Japan's “legal control” over Dokdo and Korea's “illegal” occupation since 1905.

This is not only because the history of Japan's continuous invasion of Dokdo sovereignty based on Japanese colonialism is still ongoing, but also Japan's attempt to invade Dokdo in 1905 is resuming.

Moreover, there is a seriousness of the problem in that the long-term strategic distortion frame of Japan's claim to Dokdo, which is mobilized to conceal historical truths, is transformed into a comprehensive policy to strengthen international legal titles.

On such premises, I have reviewed the legal problems and traced the genealogy of the study on the legal principle of titles of Japanese society of international law, which is establishing the policy basis for Japan's claim to Dokdo based on Japanese colonialism.

The genealogy of the study of the title to Dokdo in Japanese society of international law leads to “Theory of historical title” by Takeshi Minagawa, “Theory of original title” by Toshio Ueda, “Theory of substitutional title” by Kanae Daijudo, “Theory of commonable title” by Gentaro Serita and “Theory of effective title” by Hirose Yoshio.

After Yoshio, which is the epitome of the genealogy of the title to Dokdo sovereignty, international legal scholars such as Takashi Tsukamoto and Tetsuya Nakano, who appear as mainstream researchers, must be noted because all classified the genealogy of the “Theory of original title” on the premise of “the doctrine of terra nullius” are in line with the claims of the Territorial Sovereignty Exhibition Hall.

First, the international legal problems of Tsukamoto's claim to Dokdo's sovereignty and title are as follows.

Tsukamoto argues that it is necessary for Japan to reinforce uncertain primitive titles under modern international law through a territorial acquisition process based on effective possession such as occupation of territory with historical titles in the 17th century. However, this is noteworthy in that it resembles the claim of “Substitutional title” by Daijudo, which I reviewed in previous studies.

Because, contrary to Daijudo's claim, it is not required to substitute the inherent territory with other titles in modern international law in order to preserve the inherent territory with historical titles under international law, and there is no validity in international law in that there are no cases substitute for many islands that Japan actually owns based on historical titles as other titles such as occupation.

Tsukamoto's argument, which basically presents the same argument in such a premise, is evaluated as not free from the same criticism.

In addition, the Japanese government at the time of 1905 denied the document of Yozaburo Nakai which recognized Dokdo as a territory of Korea and described as a territorial incorporation in military need, but the claim that his fishery activities were approved as an exercise of national authority and had occupation requirements is a distortion of not only historical facts but also international law.

On that premise, Tsukamoto's historical perceptions related to three major historical points ― the Dajokan Directive of State in 1877, Edict No. 41 of the Korean Empire in 1900 and Japan's incorporation of Dokdo in 1905 ― are analyzed utilizing the issue of Korea's claim to Dokdo as the basis of the doctrine of terra nullius.

In other words, Tsukamoto claims that the name of Dokdo in Korea is not clear. But rather, Japan is facing limitations, such as distorting the problem of calling Ulleung Island Takeshima in the Dajokan Directive of State of a modern legislative system into confusion caused by the influx of Western maps due to its opening of borders.

Next, Nakano, unlike Tsukamoto, raised the occupation theory based on the international law relationship after the Treaty of Ganghwa Island in 1876 on the premise of some insulation from the historical title. In other words, Nakano criticized that there is no international case of reaffirming its own territory in order to confirm its territory in the modern international legal system based on the principle of sovereignty equality.

However, it is noteworthy because Nakano claims that Japan's illegal invasion of Korean sovereignty as well as Dokdo after the 1904 Korea-Japan Protocol were legitimate acts under international law at the time, despite violating the principle of sovereign equality.

His claim was clearly exposed in the “issue of notification” as an occupation requirement. In this regard, he argues that there is no international law principle that paradoxically it is an absolute requirement for the acquisition of a territorial title, while acknowledging the obligation of notification presented in the General Protocol of the Berlin Conference in 1885 and the International Law Society of the United States in 1888.

In addition, he insists on the completion of the occupation through Shimane Prefecture's notice, but it seems difficult to ensure the validity of the legal norm itself that international law is the same as the notice of local governments.

To sum up, Tsukamoto's interpretation has limitations in that it follows the legal problems inherent in Daijudo's “theory of substitutional title” and distorts Japan's confusion with the name of Dokdo. While Nakano insists on the modern international legal system based on the principle of sovereign equality, it exposes the limitations of legalizing Japanese colonialism in issues such as the invasion of Dokdo's sovereignty and notification issues.

Moreover, the advocates of the doctrine of terra nullius as Yoshio should not be interpreted arbitrarily and used to invoke cases such as the Clipperton case between France and Mexico in 1931, the Eastern Greenland case between Norway and Denmark in 1933 and the Minquiers and Ecrehos case between France and the U.K. in 1953, which are cases related to the ruling that in the exercise of national authority in an uninhabited island, isolated location alleviates the strict requirements of normal effective control.

Ultimately, it should be noted that the claims of the genealogy of the study related to the title of the Japanese Society of International Law, which has established the policy basis of Japan's claim over Dokdo, are consistent with Japanese colonialism as the essence of violence and greed proclaimed in the Cairo Declaration.

Therefore, the comprehensive legalization of colonial rule and invasion of Dokdo, which is raised by the advocates of the original title on the premise of terra nullius, such as Tsukamoto and Nakano, after Yoshio, is a legal distortion of international legal title and a serious violation of Korea's sovereignty over Dokdo. I would like to urge Japan's international legal obligations and responsibilities for 21st century peace.

Doh See-hwan (drdoh@naver.com) is a senior research fellow at the Northeast Asian History Foundation.