Introducing the EEZ regime into this Northeastern sea area to restructuring the old fishery cooperating system, Korea and Japan have decided to shelve up the sovereign issue of Tokto and indulge in the fishery issue only. After some painstakingly and ...
Introducing the EEZ regime into this Northeastern sea area to restructuring the old fishery cooperating system, Korea and Japan have decided to shelve up the sovereign issue of Tokto and indulge in the fishery issue only. After some painstakingly and hastily negotiating processes, they have finally arrived on an interim agreement.
The problem is the Dokto is in the polygonal buffer-zone, named by Korean side, unilaterally, as "Joongan Sooyok". Particularly, in the part of Korea which has been manifested its sovereign title by actual control of this rock island, this kind of agreement which could be interpreted as an acceptance of a condominium with Japan over this rock, could be invoked as an evidence of renunciation of its sovereign title.
Manifestation of the Korean territorial sovereignty to the Island of Tok-do had been constituted and reaffirmed with several distinct historical occasions. Only if the facts and truth were not ever twisted, it could be easily proved that up to February 22 1905, when a few Japanese imperial government officials illegally annexed it to Japanese Shimanae Province in some clandestine manner, Korean authority has maintained the sovereign title over the Tok-do Island continuously and peacefully. It is evident that this illegal annexation is nothing but a beginning of Japanese colonial invasion upon Korean peninsula only feasible under the framework of the notorious Korea-Japan Protocol which deprived Chosun Dynasty of its sovereign management in most important international affairs. This Protocol was procured on August 22, 1904, just six months before the disposal by the threat of Japanese army. And it is crystal clear that any legal effect of the illegal annexation of Tok-Do Island to Shimanae Province is void ab initio just like all other Japanese territorial jurisdiction over Korean peninsula which she had seized and stolen from Korea and eventually been stripped off upon the unconditional surrender of the Japanese Empire in World WarⅡ, when applying the manifest principle of Cairo Declaration.
The Japanese side has asserted the 1905 annexation, as an act of occupation, to distinguish the annexation from other acts of invasion which are to be deemed as void under the principle of Cairo Declaration. However, the only territory which can be the object of occupation is that which does not already belong to any State. As far as the Island of Tok-do is concerned, the Japanese authority had declared it twice as the territory of Korean Government, once in 1696, and again in 1877, even before the 1905 annexation. Any manifest act of abandonment by the Korean authority had not been recorded in connection with this controversial island so far. So this particular island was obviously not a possible object of Japanese occupation; it could only be acquired through cession, or by subjugation.
In connection with the issue of the territorial sovereignty of the Island of Tok-do, the interpreting the Article 2 and 3 of the 1951 San Francisco Peace Treaty seem to be the most crucial focal point. Japanese side has insisted that the drafters of the Peace Treaty deleted the term of "Liancourt Rock' which means the Island of Tok-do, from among the list of islands renouncing all the Japanese jurisdictional titles, intentionally because they deemed it as the territory belonged to Japan.
As matter of a fact, the term of "Liancourt Rock' had been included among the renouncing list up until 5th Draft of the Treaty. But it had been deleted since 6th Draft. Going further since then, the term of "Liancourt Rock' had once been inserted in the list of territories in which the Japanese residual sovereignty were recognized and to be under U.S. trusteeship in the Draft of Article 3 of the Peace Treaty. But because other allies did not concur with the U.S. trusteeship upon this particular island, the term of "Liancourt Rock' had been eventually deleted from the list of Article 3 also.
Incidently, (to the Japanese side) or meaningfully (to the Korean side), from the very moment of Japanese unconditional surrender, U.S. Government Authority has taken the concrete and consistent policy which restrict the span of Japanese people's activities within very confined areas around the Japanese main islands, with those announced decrees, namely "MacArthur Line" (as early as September 27. 1945) and "SCAPIN 677" ( June 22. 1946). Korean Government has been keeping the whole surrounding sea area of the Korean peninsula including the Island of Tok-do under its control, utilizing those U.S. decrees, and later with its own sovereign declaration of "Rhee Line, or Peace Line" (Presidential Proclamation of Sovereignty over Adjacent Seas, January 18. 1952).
Needless-to-say, any annexations of Korea by Japan, including particularly the Island of Tok-do, had been effectively terminated with the Japanese unconditional surrender and the occupation of that territory by the allied armed forces, in August and September 1945. It is the nature of course and the spirits of law which had been articulated in accordance with the 1943 Cairo Declaration which were incorporated into Artcle 8 of the Potsdam Declaration and manifestly accepted by Japan with the Instrument of Unconditional Surrender on September 2, 1945. At the moment of the inauguration of the Government of the Republic of Korea as of August 15, 1948, this particular part of insular land, the Tok-do Island had been included among the territories which have to be transferred from U.S. Army Forces in Korea to the Government of the Republic of Korea. The Government of the Republic of Korea had been exercised its due jurisdictional authority over this particular insular land explicitly, and practically when San Francisco Peace Treaty was entered into force, as of April 28, 1952, by zealously seizing Japanese fishing vessels violating the boundary line.
As far as the Republic of Korea is concerned, any territorial provision under Paragraph (a) Article 2 of the Peace Treaty, which could have happened to be interpreted as denouncing its insular land jurisdiction which had already been duly established since its inauguration, is not binding on the Republic of Korea, which is not a Party to this Treaty, except to the extent to which that country has itself accepted it. This is the rule of law which has already been made reaffirmed in the judicial decision of PCIJ in 1932, with "The Free Zones of Upper Savoy and the District of Gex case".
In conclusion, strictly speaking in the logic of the law and history, this 0.19 square kilometers islands is obviously belonged to Korea.
Settling a dispute, particularly the sovereignty dispute, however, could never be accomplished with only those simple logics of the law and history. The EEZ claims of those three Northeastern Asian nations, Korea, Japan and China in the congested semi-enclosed seas, are conflicted each other and frustrated with those sovereignty issues of the controversial islands. These three nations have managed to "initial" and sign, three bilateral fisheries treaties and made one of them entered into force, so far. These provisional pacts, however, have been drafted foolishly vague and intentionally inconsistent to the law. With all possible good will and intelligence to cooperate and enhance the partnerships among the three countries, every earnest and decent effort shall eventually be hampered by these ugly-designed law of the sea schemes.
So, an analysis and appraisal on the power politics and legal implications for a peaceful settlement of competing claims to Tokdo Island between Korea and Japan has been attempted in this paper, going through a set of the quests into the legal and political factors balanced enough to distinguish the national prejudices aggravated in either side.