독도 에세이 콘테스트 은상 수상

Dokdo omitted but not forgotten in peace treaty

Tarun Krishnakumar Silver Prize winner              tarunkrishnakumar1@gmail.com Tarun Krishnakumar is a student at the National Law School of India, Bangalore. He is passionate about issues of international law and sovereignty disputes. He is an editor of the Indian Journal of Law and Technology.

It is often possible to discern whether a particular territory is in dispute by observing the multiplicity in nomenclature used by various parties to refer to it.

The East Sea islets of Dokdo, referred to as Dokdo by Korea, Takeshima by Japan and Liancourt Rocks or Dagelet by some Western nations, are a prime manifestation of this phenomenon.

Dokdo, located 215 kilometres from the Korean mainland and 87 kilometers from the Korean island of Ulleungdo, consists of around 90 smaller islets. The name of the island literally means ‘solitary/lonely island’.

This title is especially apt as the island is solitary not only in its geographic configuration but solitary in a categorization of territories which have been unfairly denied the right to belong to their rightful nations despite conclusive evidence to establish such links.

In the case of Dokdo, this refers to long-running illegal denial of Korean sovereignty over it by Japan. This denial, as the following paragraphs shall show, has no basis in history nor in international law.

The historical evidence that supports the Korean claim to Dokdo first began with references in the Samguk Sagi which, compiled in 1145 A.D., chronicled the sixth century conquests of Ulleungdo and Dokdo by the Korean Shilla general Issabu.

In recent times, the globally distributed Korean Imperial Decree No.41 of 1900 placed Dokdo under the administrative jurisdiction of the Ulleung County Office. This should have been the close of the chapter.

The Japanese claim to Dokdo originated in the early 1900s with the imperial annexation of Korea by the Japanese through a set of forced agreements made between 1905 and 1910.

Japan contends that all Korean territory including Dokdo became Japanese on account of the annexation. It is this fact that is claimed to be confirmed by the omission of Dokdo in the list of islands over which Japan renounced all rights in Article 2(a) of the San Francisco Peace Treaty of 1952.

But what were the underlying reasons for this omission of Dokdo from the Treaty? The lines of reasoning that seek to answer this question are primarily composed of four distinct threads of thought.

The Japanese justification of annexation, that a citizen of Japan had “migrated” there, and thus necessitated the taking over of the island by Japanese authorities is also fatally flawed; the fisherman in question set up only a temporary shelter and was resident for only very limited periods of time each year.

Furthermore, while it may be true that after the fifteenth century the Korean government perused a policy banning the settlement of Korean citizens on the island, this does not equate to their giving up sovereignty of Dokdo.

Instead, it should be viewed as their reinforcement of their control over it, in that Korea was now controlling the nature of human inhabitation on the island.

The argument that this policy left the door open for, and even invited, Japan’s 1905 incorporation of Dokdo is invalid in the sense that the Korean leaders sought to establish principles of non-settlement on the island, not just for Korean citizens but for humans as a whole.

The continuation of Japanese sailors’ visits to the island gave Japan no more rights to Dokdo than does the breaking in of a burglar into a house. Japan’s actions in 1905 went explicitly against established Korean principles and authority on the island and can thus be seen only as an act with aggressive undertones.

The argument that the Japanese incorporation of Dokdo was in keeping with the principle of terra nullius is furthermore an invalid one.

Firstly, Japanese records have shown that an awareness of the territorial status of Dokdo as Korean was present in Japan prior to the annexation - a volume of a publication by the Shimane Prefecture Public Relations Department states a concern that “taking over such barren islands, which might be territory of Korea, may amplify foreign countries’ mistrust in us”.

The first line of reasoning is premised on the wording of Article 2(a) of the Treaty being that Japan renounces all claim, right and title to Korea, “including the islands of Quelpart, Port Hamilton and Dagelet.”

What is to be noted here is that the list – due to the presence of “including” – is of an inclusive, open-ended nature and does not limit its scope to the named territories.

The certain effect of this wording is that Japan may not wholly rely – as it has done – on the wording of Article 2(a) to submit that Dokdo has been specifically excluded from the list of islands returned to Korea.

In furtherance of the above, a potential reason for the omission of Dokdo could have been the use of “Dagelet” (i.e. Ulleungdo) as a reference to its administrative jurisdiction – which would include the relatively minor neighboring islets of Dokdo within its meaning.

Korea, as a whole is composed of around 3,000 islands – hence, the only possible rationale for the mentioning of only three of these is the intention that the smaller outlying islands of these be included under them.

The consequence of this being that the reference to Dagelet would in itself encompass the smaller neighbouring island of Dokdo.

The third line of argument submits that various post-war international instruments had the effect of delimiting Japanese territory in a manner that did not include Dokdo.

In this regard, attention must be drawn to the Cairo and Potsdam Declarations – which in conjunction had the effect of forcing Japan to return all land it seized from other nations while at the same time limiting the extent of Japan to the four main islands of Honshu, Hokkaido, Kyushu, Shikoku and some of the minor outlying islands.

This argument is further strengthened by Supreme Commander for the Allied Power’s Instructions (SCAPIN) Nos. 677 and 1033, which expressly excluded Dokdo from Japan.

The last line of reasoning to explain the omission of Dokdo from the Peace Treaty is based jointly on the prevailing concerns of the United States military of the time in pre-Cold War posturing against the USSR.

The stated American policy was to retain military and naval bases in Japan and its outlying islands so as to deter Soviet aggression.

As these documents show, Dokdo – due to its strategic location – was to serve as a location for a military radar and weather station – the true self-interested reason for the changed American stance vis-a-vis Dokdo.

Such military goals in conjunction with intense lobbying from Japan resulted in the exclusion of Dokdo from the final version of the Treaty – a desperate attempt to muddy waters that had been clear for centuries.

In conclusion, no matter which line of reasoning one finds favor for, the outcome is certain – Dokdo is nothing less than the birthright of every Korean. After all, as the age-old Korean adage goes, after much tribulation comes much pleasure.