뉴스레터

Ongoing Japanese colonial invasion with regard to Korea’s sovereignty over Dokdo

 In 2020, the 120th anniversary of the Korean Empire’s announcement of its territorial sovereignty over Dokdo through Imperial Order No. 41, Japan reopened National Museum of Territory and Sovereignty. What Japan wants to state through their act is their legal domination over Dokdo after 1905 under international law and Korea’s illegal occupation. It should be noted that the foundation for Imperial Japan’s invasion and the history of their claim for sovereignty over Dokdo based upon Japanese Colonialism are still ongoing. In addition, their attempt to plunder sovereignty over Dokdo after 1905 is being publicly resumed.

 This issue should be considered serious in the sense that the Japanese government’s long-term strategy-based distorted frame of their claim for sovereignty over Dokdo based on concealment and distortion of historical facts has been switching into a policy to strengthen the general international legal title (evidence that establishes the existence of the right and the practical origin) since the Korean government’s declaration of the Peace Line in 1952. It is historic calling and task to trace Japan’s history of title researches by their academic circles associated with international law, who have been establishing a political foundation for their claim for sovereignty over Dokdo, and to investigate the essential faults of their legal distortion.

Investigation of the historical distortion of title researches on Dokdo by Japan’s academic circles associated with international law

 Sovereignty over Dokdo and International Legal Title III is the final outcome of mid and long-term research project and the last volume of NAHF Series of Research No. 100, following Volumes I and II published in 2019 and 2021, respectively. Volume I handles the essence of the problem that the long-term strategy-based distortion frame of Japan’s claim for sovereignty over Dokdo has been becoming a policy to strengthen the general international legal title. Volume II reviews the history of title researches by Japan’s academic circles associated with international law who have been insisting their own “international law-based view of history” saying that Imperial Japan’s colonial rule and illegal occupation of Dokdo were all legitimate under international law. Volume III reviews the arguments of Tsukamoto Takashi and Nakano Tetsuya who emerged as mainstream researchers specializing in international legal title after Hirose Yoshio who is the peak of Japan’s researches on international legal title. It is an important task to preemptively review since not only are they trying to make the original title of their terra nullius occupation in 1905 legitimate on a foundation of the “international law-based view of history,” but also it is consistent with the claim of the National Museum of Territory and Sovereignty of Japan.

 As a result of an analysis on the history of title researches by Japan’s academic circles associated with international law, it was proven that the theory of historical title by Minagawa Takeshi was the start followed by the theory of original title by Ueda Toshio, the theory of alternative title by Daijudo Kanae, and the theory of common occupancy title by Serita Kentaro and the theory of effective title by Hirose Yoshio was at the peak of the history. The international law-based view of history by Hirose Yoshio insists that Imperial Japan’s illegal occupation of Dokdo and their colonial rule which had occurred before World War I were all legitimate under international law. He insists that their terra nullius occupation associated with their illegal occupation of Dokdo is legitimate on original title under international law on the premises of the legitimate theory of colonial rule by Ariga Nagao, Unno Fukujyuu, and etc. However, we should not overlook the nature of Eulsa Unwilling Treaty which concluded at the timing when normativity of international law was strengthened on the basis of universal international norms at the time of Japan’s illegal occupation of Dokdo, instead of Japanese legal positivism linked to national implementation, and which was suggested as a representative case of ineffective cases by a national representative’s compulsion in accordance with the 1935 Draft of Harvard Law School announced during the process of codification of the Convention on the Law of Treaties of the U.N. International Law Commission in 1963.

 Problems of title researches by Tsukamoto Takashi, Nakano Tetsuya, etc. considered mainstream researchers associated with international legal title after Hirose Yoshio are as follows. First, Tsukamoto Takashi insists that it is necessary to strengthen uncertain basic title by replacing it to modern international legal title by going through the territory acquisition procedure based on effective occupation such as preoccupation for territory whose historic title belonged to Japan in the 17th century. It is consistent with the theory of “alternative title” by Daijudo Kanae. It is not requested to substitute with other modern international legal title in order to possess indigenous land with historic title under international law. Japan cannot be free from criticism that it is not legitimate under international law in the sense that Japan has never substituted with other type of title such as preoccupation of numerous islands based upon historic title. Their claim made even when they are aware of the legal problem of the theory of alternative title can be deemed as their attempt to utilize the issue of the Korean name of Dokdo as a ground for the terra nullius theory of Dokdo.

 However, they distort the fact by insisting that the Meiji government’s Daijō-kan’s Order (1877) calling Ulleungdo as Jukdo was just a mistake caused by the inflow of Western maps through opening. They denied Nakai Yojaburo’s document stating that the Japanese government recognized Dokdo as territory of Joseon and incorporated the island into their own by military necessity in 1905. Nevertheless, they insisted that they had prerequisites for preoccupation with confirming fishing as the exercise of the state’s authority. It is distortion of the principles of international law as well as historical facts.

 Unlike Tsukamoto Takashi, Nakano Tetsuya emphasizes the Korea-Japan modern international law system after the Korea-Japan Treaty of 1876 as a legal principal partly disconnected from historic title. Yet, he insists that Japan’s violation of the principle of equality of sovereignty after the Korea-Japan Treaty of 1904 and their aggressive national implementation of invasion into Dokdo was based upon legal title under international law. His assertion is clearly shown in the issue of notification as a prerequisite for preoccupation. Although he acknowledges the General Act of the Berlin Conference in 1885 and the duty of notification specified by the International Law Society in 1888, he says that the principles of international law do not exist as an absolute prerequisite for acquisition of territorial title and their preoccupation was completed with Shimane Prefecture’s notification. However, the awareness in which international law is identical to a local government’s notification cannot guarantee validity.

Korea’s sovereignty over Dokdo is a foundation for the peace community of Northeast Asia.

 The Japanese government’s claim for the sovereignty over Dokdo based upon the research by the Japanese Institute of International Law into Korea’s sovereignty over Dokdo is the essence of their violence and avarice announced during the 1943 Cairo Declaration, which is consistent with Imperial Japanese colonialism. Japan’s claim for the sovereignty over Dokdo without any reasonable and fair ground under international law, but only based upon Japanese colonialism, is severe invasion into Korean territorial sovereignty. Therefore I urge Japan to take historic and legal responsibility with sincerity under international law. Furthermore, I hope that this book contributes to establishing a foundation for the peace community of Northeast Asia in the 21st century.