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A Look On the so-called Dokdo Issue and Counter-Measures Thereon
A Look On Dokdo Issue and Counter-Measures.hwp By Hong-ju NAH (Chairman, Dokdo NGO Forum,Ex-President, Dokdo Research and Studies Society) I. Preface Dokdo Islets are the territory of the Republic of Korea in light of historic and legal points of view as well as the effective jurisdiction over the Islets. However, some Japanese and their government try to lay a claim over the title of Dokdo Islets, asserting that the Islets are so-called Japanese "Takeshima" without any reasonable ground, but only with "greed”1) over the Islets. Thus, the so-called "Dokdo issue" has become a shackle against the development of friendly relations between the Republic of Korea and Japan. About three months prior to the retrieval of sovereignty by Japanese with the entry into force of Peace Treaty with Japan, San Francisco on April 28, 1952, the government of the Republic of Korea issued the "Presidential Proclamation of Sovereignty Over Adjacent Seas" (or Peace Line) on January 18, 1952.2) Following ten(10) days after the Korean Presidential Proclamation or the "Peace Line", Japanese government filed a Note Verbale dated January 28, 1952 in protest against Korean Proclamation of "Peace Line" with the Representative of the Government of Republic of Korea , Tokyo, Japan. In the Note Verbale, Japanese government stated as the following(excerpt). : "...Furthermore, in the proclamation the Republic of Korea appears to assume territorial rights over the islets in the Japan Sea known as Takeshima(otherwise known as Liancourt rocks). The Japanese Government does not recognize any such assumption or claim by the Republic of Korea concluding these islets which are without question Japanese territory." To the above Japanese protest, Korean government refuted by its Note Verbale(dated February 12, 1952) as stating the following. : "...The Government of the Republic of Korea does not feel inclined to enter into full arguments, here in this note, over the ownership of Liancourt Rocks, known as "Dokdo" in Korea through centuries, and merely wishes to remind the Japanese Government that SCAP, by SCAPIN No.677 dated January 29, 1946, explicitly excluded the islets from the territorial possessions of Japan and that again the same islets have been left outside of MacArthur Line, and the facts that endorse and confirm the Korean claim to them, which is beyond any dispute." Repeated exchanges of the kind of Note Verbales between the government of the Republic of Korea and that of Japan have been continued ever since the exchange of the said ones over half-century, obstructing smooth development of future-oriented relations between the Republic of Korea and Japan. Under such a circumstances, one Korean resident in Japan named Lee, Yang-soo(李洋秀) found in November 2008 a very important Japanese legal provision which provides that "Dokdo, etc. are not Japanese adjacent islands" in the Article 2 of the Japanese Prime Ministerial Decree No. 24(June 6, 1951). Japanese government, however, has kept silence ever since on the revelation of the said provision in regard to "Dokdo". On this occasion, the Author likes to approach to the captioned subject of this article by means of making an extensive review of the said Japanese Pime Ministerial Decree No. 24 in comparison with SCAPIN No.677(January 29, 1946) by which Dokdo(Takeshima) was formally excluded from the definition of Japan on the basis of Potsdam Proclamation(8) as well as review of recent Japanese scholars' suggestions to solve the so-called "Dokdo issue" including some Koreans' reaction thereon. II. Main Discourse The said Korean resident in Japan, Lee, yang-soo, Deputy Director(Secretariate of Civilian Steering Committee For Opening Japanese Government Papers on the negotiations for the Treaty On Basic Relations Between Japan and the Republic of Korea) received a great number of Japanese official document copies by a court order and found some passages blocked out by black ink which he searched after to find the important provision of Article 2(Japanese Prime Ministerial Decree No.24) which provides that "Ullung island, Takeshima(Dokdo) and Cheju island do not belong to Japanese islands"3) On this occasion, Japanese position on the so-called "Dokdo issue" must be put under difficult circumstances with the reveled Japanese provision verifying that "Dokdo is not Japanese territory". Nevertheless, some Japanese officials of Japanese Foreign Affairs Ministry were quoted as said on the said provision that "the provision provides for only the scope of Japanese land to which Japanese administrative power reached under the days when Japan was occupied by the United States Armed Forces after WWII, and therefore, it did not define Japanese territory"4), while Japanese government has kept silence on the provision. The said explanation of the provision by a Japanese official can not be a reasonable one at all in comparative view with SCAPIN No.677 which we will review later. Under this new circumstances with the said Japanese provision, it may be corollary for Japanese government to cast off the "greed" over Korean Dokdo islets since even Japanese legal provision verifies the "Dokdo" as non-Japanese territory. Therefore, in this chapter, SCAPIN No.677(January 29, 1946) by which "Dokdo Islets" were excluded from the definition of Japan on the basis of Potsdam Proclamation(8), etc. shall be reviewed in comparison with the said Japanese Prime Ministerial Decree No.24(June 6, 1951) which also denies "Dokdo" to be Japanese territory in details. And some evidences which Japanese government raised to justify Japanese claim over the Dokdo islets, recent Japanese scholars' suggestions to solve so-called "Dokdo issue" and a Korean response thereon will also be reviewed in details. 1. Review of SCAPIN No.677(January 29, 1946)5) On the basis of Potsdam Proclamation(8) and the Instrument of (Japanese) Surrender (September 2, 1945)6). and according to Part I(4(d) of the Basic Initial Post-Surrender Directive to the Supreme Commander for the Allied Powers for the Occupation and Control of Japan(November 3, 1945)7), SCAP issued the "SCAPIN No.677(Jan. 29, 1946), which was conveyed for Japanese government to implement it. Thus, the Author firmly believe that the said Japanese Prime Ministerial Decree No.24(June 6, 1951) had to comply with the SCAPIN No.677 in defining the islands concerned in its Article 2 in which "Dokdo" was provided as a "non-Japanese island". A. The Gist of SCAPIN No.677(Jan.29, 1946). - Subject: "Governmental and Administrative Separation of Certain Outlying Areas from Japan." -Definition of Japan. : "3. For the purpose of this directive, Japan is defined to include the four main islands of Japan (Hokkaido, Honshu, Kyushu and Shikoku) and the approximately 1,000 smaller adjacent islands including the Tsushima islands...excluding(a)Utsryo (Ullung) island, Liancourt Rocks(Take Island) and Quelpart(Saishu or Cheju) island,...(b)..." Remarks: In view of the nature of issuing this Directive for complete Governmental and Administrative Separation of Certain Outlying Areas from Japan, the provision to exclude "Dokdo"(Liancourt Rocks, Take Island) must be understood as "an appropriate steps in Japan to effectuate the Terms of Surrender". B. SCAP Administrative Areas Map: Japan and South Korea. Remark: In light of customary rule in international tribunal, the verifying power of a map may be recognized as the same as the document issued together with the map which reflects on its contents. A special attention is invited to the semi-circle on the South Korea/Japan border line in the SCAP Map in order to particularly locate the "Dokdo" within the South Korean boundary of the Map. 2. Japanese Prime Ministerial Decree No.24(June 6, 1951). - The Formal Title: "Prime Ministerial Decree No.24(June 6, 1951) for the implementation of Governmental Ordinance concerning the Disposal of Property located in Japan of the Mutual Relief Association, Office of Governor-General, Korea." - Article 2: "The islands which belong to Japan, shall be those islands which do not fall within the purview of the islands indicated in sub-paragraph below. 1. .... 2. Ullung island, Dokdo(Takeshima) and Cheju island." Remark: The Japanese Prime Ministerial Decree No.24 explicitly provides that "Ullung island, Dokdo(Takeshima) and Cheju island do not belong to Japanese adjacent islands." This provision of the Decree is a self-explanatory to verify the fact that "Dokdo does not belong to Japan",A does not need any further explanation thereon. This provision, therefore, is a very important evidence on Korean title over the "Dokdo" in light of International law. The Author can not but help pointing out that with this Japanese own provision, Japanese claim over Dokdo (Takeshima) shall find no place to stand on at all. 3. The Review of Japanese Prime Ministerial Decree N0.24 In Comparison With SCAPIN No.677 In Regard To the Exclusion of "Dokdo"(Takeshima) From The Definition of Japan. The said recent revelation of the Japanese legal provision which explicitly verifies for itself the fact that "Dokdo"(Takeshima) was not Japanese island(which was found by Lee, Yang-soo, a Korean resident in Japan in November 2008) is particularly important in view of its relation with the provision of the SCAPIN No. 677. A. Legal Status of the Japanese Prime Ministerial Decree No.24 (June6, 1951) At the Time of Promulgation. The promulgation date of the said Decree was "June 6, 1951". At the time of the promulgation, Japanese authority to rule the State was subjected to the SCAP in accordance with provision of the "Instrument of Surrender"(September 2, 1945)8). On the other hand, SCAP was provided with the "power to take any steps deems proper to effectuate terms of the Surrender and the provisions of the Potsdam Proclamation" from the President of the U.S. on behalf of the Allied Powers by the "Basic Initial Post-Surrender Directive to the Supreme Commander For the Allied Powers For the Occupation and Control of Japan(Nov. 3, 1945)"9) Thus, it is clear that the power of SCAP was based upon the Directive signed by the President of the United States, the Instrument of Surrender and the Potsdam Declaration. Invested with all such powers as aforesaid, SCAP could issue the "Directives" to Japanese Government on what he deemed proper to effectuate the terms of Potsdam Declaration, and the Japanese Government at the time was to impliment the "Directive" from the SCAP taking it as the Supreme Order. Japanese failure, violations or disobedience to the "Directive" might cause for the SCAP to impose direct military Government over Japan10). B. A Review of Japanese Legal System For Implementation of SCAP Directive. (1) Delivery Channel. SCAP order was delivered to the Japanese government as a "Directive" under the subject of "Memorandum For Imperial Japanese Government" via SCAP Central Liaison Office, Tokyo. (2) Implementation Process Within Japanese Government. SCAP Directive shall be implemented by Japanese Govenment.11) For the implementation, such as SCAPIN No.677, therefore, Japanese Government was believed to have prepared for legislative process in Japan like Royal Rescript(勅令), Sei Rei(政令), Prime Ministerial Decree(總理府令), and Ministry Ordinance(部令) in regard to "Directive". This legislative process was confirmed by the Japanese Governmental provisions such as the said the "Ullung island, Takdehsima(Dokdo) and Cheju island" in the Article 2 of the Japanese Prime Ministerial Decree No. 24(June 6, 1951) in complying to such terms of SCAPIN No. 677 as the "excluding Ullung island, Liancourt Rocks(Takeshima, Dokdo) and Cheju island" in the Definition of Japan. C. A Review On the "Provisions of Dokdo" in Both the SCAPIN No.677 and the Japanese Prime Ministerial Decree No.24. SCAP issued the "Directive", SCAPIN No.677, to the Japanese government in accordance with Potsdam Declaration(8)12) and Basic Initial Post-Surrender Directive to the Supreme Commander for the Allied Powers13) in order to make "Complete Governmental and Administrative Separation of Certain Outlying Areas from Japan" (November 3, 1945), and therefore, by SCAPIN No.677, "Ullung island, Liancourt Rocks(Dokdo, Takeshima) and Cheju island"were excluded from Japan. - Therefore, such separation of "Dokdo", etc. were never simply executed for any provisional administrative purpose as Japanese Professor Kanae Daijudo once raised.14) but for effectuating the terms of the Potsdam Declaration(8).
- U. S. Armed Forces landed on the South Korean shore, for the first time, on September 7, 1945, and Japanese army stationed in Korea formally surrendered to the U.S. Armed Forces at 16:00hrs on September 9, 1945 and simultaneously Japanese flag was drawn down from the capital building15). South Korea including Dokdo as shown on the SCAP Map: Japan and South Korea, had been ever since under the jurisdiction of the U.S. Military Government until Korean Community established at 11:00hrs on August 15, 1948 the Republic of Korea exactly on the Area of "South Korea" including Dokdo as shown on the said SCAP Map which had been completely separated from Japan by SCAPIN No. 677. On the said date, the U.S. Military Government, Korea transferred the authority to rule the "South Korea" to the U.S. State Department which simultaneously transferred the authority to the newly born independent Republic of Korea16), four years prior to the Japanese restoration of sovereignty in 1952. 4. A Review of the "Foundations" on Which Japanese Government Raised For Her Justification For A Claim Over "Dokdo" A. Japanese Shimaneken Prefecture Public Notice No.40(Feb.22, 1905). Out of many Korean War veterans of the natives of Ullung islanders retired from the active duty during the Korean War in 1950s (due to completion of active duty or war wounds in combat in the front line) willingly gathered together led by the war veteran Hong, Soon-chil, a retired Special Master Sergeant) and organized a "Civilian Voluntary Militia Unit For Dokdo Self-Defense" on August 20, 1952 at their hometown the Ullung island. While the Central Government of Korea was concentrating with its entire strength on the Northern Front Line fighting against the Communist forces, the natives of the remote Ullung islanders decided to exercise the right of self-defense for Dokdo defense in response to an incident in which some Japanese illegally erected an wooden landmark which reads " Takeshima Gokemura Shimaneken Prefecture "at the Korean inherent island Dokdo around in July 1952, the wooden illegal landmark was immediately pulled down by Koreans.17) The said Civilian Militia Unit members were retrained under the leadership of Commander Hong and armed with rifles, machine guns and motor landed at Dokdo(West islet) at 08:00 hours on April 20, 1953 to station on-the-field for a long time unspecified. Following the Civilian Militia Unit's landing at Dokdo around a month, one Japanese ship illegally approached to Dokdo Islets on May 28, 1953. The Korean Civilian Militia Unit fired on the Japanese ship to make the Japanese ship retreat off the Dokdo.18) Japanese government protested against Korean government on the firing on the Japanese ship at Dokdo with a Japanese Note Verbale (dated June 22, 1953). Korean government refuted the Japanese protest. Then, another Japanese Note Verbale No. 186/A2(July 13, 1953) protested again on the said firing incident with ������Japanese Views I ������ attached to the Note Verbale. For the first time, the Japanese government stated in the ������Japanese Views I ������ the "Shimane Prefecture Public Notice No.40"(dated February 22, 1905) as her foundation on which she claim a title over "Dokdo"(Takeshima).19) However, the Author likes to point out that such a nature of "Public Notice No. 40" of Shimaneken Prefecture shall never be recognized as an effective one for a newly taken land in international law, because a Provincial government like Shimaneken Prefecture has no authority to make public notification of a newly acquired land to other countries concerned, but its local peoples.20) Ref.: Japanese Shimaken Prefecture Public Notice No.4o (February 22, 1905). * The Author's unofficial translation into English. : "An island located at North latitude 37° 9' 30", East Meridian 131° 55', 85 miles off to North-West direction from Oki island, shall be called as "Takeshima" and be placed under the jurisdiction of the head of Oki island." February 22, 1905 Matsnaga Dakeyoshi (松永武吉) Governor, Shimaneken Prefecture B. (Japanese Official Document) In Shu Shicho Goh Ki(隱州視聽合 紀, 1667). In the Japanese Note Verbale(February 10, 1954), Japanese government stated that "Takeshima has been known to the Japanese since ancient times, considered as an integral part of the Japanese territory" and enumerated several evidential documents of which the firstly raised one by Japanese government was the "In Shu Shico Goh Ki(隱州視聽合紀, 1667) in the Japanese Views II which was attached to the said Note Verbale. It was Saito Ganske(齊藤勘介), a Japanese Provincial Government official, who prepared the official report based upon his observation tour across the In Shu region(隱州地方) under his jurisdiction upon the order from his superior in 1667. In the said official report, Saito confirmed the North-Western boundary of Japan as the Oki island(隱岐島) as the following. The Official Report(Excerpt). :"...in the Northern sea to the In Shu(Oki island) lies the old Oki island...no inhabitable island exists in the direction from the North to the East. With a navigation of two days and one night, one reaches to Matsshima, and further navigation of one day, reaches to Takeshima. Therefore, the Northwestern boundary of Japanese land must be limited to this Shu(Oki island)." (..隱州在北海 中 古隱島...自子至卯 無可住地 戌亥間行二日夜 有松島 又一日丁有竹島(俗言 璣竹島, 多竹海鹿...) 然卽 日本之乾地 以此州爲限矣.) This official confirmation of Japanese North-western boundary by Saito, the Provincial government official, in his official report on the region under his jurisdiction must provides with a very significant evidence in international tribunals. As indicated in earlier Chapter, an official document is the best evidence in international tribunals.21) Particularly, the said Japanese document(Insh Shicho Goki) was attributed to the very order from the superior to make an official supervisionary observation tour to the boundary of his jurisdiction over Oki island(IN Shu). The official report must be recognized as the best evidence in deciding the North-western Japanese boundary of Japanese land in light of international law. The similar kind of view was expressed by Judge Max Huber on the function of a map in Arbitral Award Respecting Sovereignty over the Island of Palmas (or Miangas) Case between the United States and Netherlands, 1928. ICJ, also, in the Minquire and Ecrehos Islets Case(French/United Kingdom) in 1953, recognized the French sense of territorial sea boundary at the time by finding a chart...exchanged between French Foreign Ministry and Maritime Ministry in which chart some part was shown without French boundary line of French territorial sea.22) 5. On Some Japanese Peoples' and Their Government's Current Trend On so-called "Dokdo issue", and Some Koreans' Response. Nowadays, there appears a symptom of some Japanese peoples' and Japanese government trend to take more desperate actions to push harder various strategies for a claim over "Dokdo" including the existing idea of referring the issue to ICJ. Recently, as a new strategy, some Japanese scholars suggested even something like a quasi-Condominium over "Dokdo" and so-called "Multiple Settlement" approach to the issue. In addition to the said cases, Japanese government's ceaseless activities concerning "Dokdo issue" may be displayed with the brochure "Ten Issues of Takeshima" prepared by Japanese Foreign Affairs Ministry in the year 2008(the brochure was translated into 10 language for overseas use) and as the more serious case, the decision made by Japanese Ministry of Education and Science on July 14, 2008, which was to include such wording regarding "Dokdo" as the following direction into a Guidance Book For Middle School Social Science Teachers: "Takeshima(Dokdo) belongs to Japanese territory. It, therefore, is necessary for teachers to intensify the Japanese land conception of it to the level of the Northern territory in case of teaching the kind." (Note: The Author's unofficial translation into English). Japanese government, however, has kept silence on the recently revealed Japanese Prime Ministerial Decree No.24, providing the "Dokdo" as a "non-Japanese territory". In a word, Japanese Ministries' aforesaid actions are extremely unreasonable and can not be justified, only to obstructing the development of a future-oriented friendly relations between the peoples of the Republic of Korea and Japan, because the "Dokdo" has been Korean adherent territory ever since A.D.512 in Shilla Dynasty and is a "Symbol of Korean Independence" as declared by the Korean government on October 28, 1954. B. On the Latest Japanese Scholars' Suggestions For Solving "Dokdo issue". 1). Professor Wada Haruki's Method of Solving "Dokdo issue". Recently, Japanese professors like to suggest new means of solving the so-called "Dokdo issue" at several international conferences held in this country. Japanese professor Wada Haruki(Emeritus professor, Tokyo University) presented a new method of solving the issue as the following. : "Japan is to recognize the Korean possession of Dokdo as an expression of its apology for the colonial rule of Korea. Korea is to give fishermen of Shimane Prefecture their secured rights to fish around Dokdo, as an expression of good will and friendship toward Japanese people."23)
From Korean perspective, the above method suggested by professor Wada is utterly unacceptable, the Author thinks. In light of the fact that "the sea around Dokdo belongs to the Korean territorial sea which coincides with Korean exclusive jurisdiction", professor Wada's method aforesaid may breach the integrity of Korean sovereignty over "Dokdo". Frankly speaking, the Author is sure of the fact that the so-called "Dokdo issue" was settled once and for all by the Treaty On Basic Relations Between the Republic of Korea and Japan concluded on June 22, 1965 in Tokyo, Japan. During around 14 years of negotiations for the conclusion of the Treaty, Japanese representative raised ceaselessly the "Dokdo issue as one of current issues to recognize at the time of the negotiations" in order to take it by a separate diplomatic note, through out all the course of the negotiations even to the signing moment, but failed in vain, because of Korean representative's strong rejection to it. Thus, the said Treaty has not a single word about "Dokdo issue", though it is the basic relations Treaty between Republic of Korea and Japan. As professor J. L. Brierly said "Between independent States respect for territorial sovereignty is an essential foundation of international relations", it may be a simple and most reasonable way of solving the issue, for Japanese government to respect Korean territorial sovereignty over "Dokdo", and the said way shall be assured by the Article 32(Supplementally means of interpretation) of the Vienna Convention On the Law of Treaties(1969) in relation to the said Treaty On Basic Relations. C. On Another Method By Japanese Scholar With A Multilateral Framework Approach To the Issue "Dokdo". Professor Kimie Hara(Renison Research Professor in East Asian Studies, Univ. of Waterloo, Canada) suggested at the International Conference under the theme: Interdisciplinary Approaches to Dokdo's Sovereignty and Border Questions, held on May 13-14, 2009 at the Institute of Dokdo Studies, Young Nam Univ.) as follows. ; "Though important, a "multilateral" approach to the various areas within a multilateral framework is the approach that has been missing in dealing with Dodo/Takeshima.... A settlement to the Dokto/Takeshima issue, therefore, should be pursued together with other related issues within a multilateral framework that reflects the historical background and present reality of international relations."24) This method appears based upon utterly wrong premise so far as concerned with Dokdo which belong to the territory of the Republic of Korea historically, legally and in respect of effective Korean jurisdiction as we have review earlier. Korean territorial sovereignty can not be any thing to be compromised with. Therefore, the Author is with the view that this kind of a "Multilateral Framework Settlement" has nothing to do with the so-called "Dokdo issue", and does not deserve to a review from Korean perspective. Furthermore, the Author was dumbfound at professor Hara's explanation on the "Multiple Framework", taking an example as the "Japan could make concessions to Korea by offering Dokdo/Takeshima as part of a "settlement of the past" including the comfort women issue...". Japan has nothing to make concessions to Korea in regard to "Dokdo" except for respect to the Korean territorial sovereignty over "Dokdo", and so-called the "comfort women" issue has absolutely no relations with "Dokdo" at all. D. More Cautious Response To the Said Japanese Methods Be Desirable. Recently, at a domestic symposium under the theme: "Global Maritime Territory Development Competition And Response" on June 17, 2009 held at Lotte Hotel, Seoul, to the Author's surprise, one discussant revealed his own nebulosity on referring the Dokdo issue to ICJ whether it was considerable or not. Also, a similar nebulous remark on the issue of referring to ICJ was made by an old political leader in a meeting held at Press Center in March 2009. In the meantime, an article by Bang, Ki-hyuck, Research Fellow(The Korea Maritime and Fisheries Affairs Institute) under the theme "Japanese Academic Circle's New Method For Solution of the "Dokdo issue"- Korea/Japan Should be Reborn As Companions, Shaking Off the Yoke of "Dokdo issue"- was carried on the Inauguration Edition of the Monthly Periodical ������Korean Dokdo Journal������ (published on April 10, 2009). According to Mr. Bang's article, the Japanese Academic Circle's new method for solving the "Dokdo issue" was a very smiler one to the said Professor Wada's, but Mr. Bang have displayed a subtle but some affirmative response to the said Japanese method, enumerating several reasons thereon. The Author likes to make some commentary on " the reference issue to ICJ" before commenting Mr. Bang's reasons raised on the Periodical ������Korean Dokdo Journal������ later. 1). On Impropriety and Unjustice of Referring "Dokdo issue" To ICJ. During the Civilian Voluntary Militia Unit For Dokdo Self-Defense(Commander: Hong, Soon-chil) stationed at Dokdo in 1950s, the Militia Unit had several times of firing incidents to the Japanese patrol ships illegally approaching to the Dokdo in order to make them retreat off the islets according to Commander Hong's memoir. Particularly, it was the third occasion of firing by the Militia Unit to the Japanese patrol ship illegally approaching to Dokdo in order to make the ship retreat off Dokdo on August 23, 1954 with a firm belief that the Militia Unit was exercising the right of self-defense. The name of the Japanese patrol ship at the time was P-S 9 "OKI" which was hit upon the "stern" with several bullets according to Commander Hong's memoir.25) Japanese government's Note Verbale(August 26, 1954) in protest against the firing(excerpt) reads: "...One of the bullets(on August 23, 1954) passed through the starboard battery room of the ship's bridge."26) Meanwhile, Japanese government on September 25, 1954 formally proposed to the Korean government to refer the "Dokdo issue" to International Court of Justice(ICJ) by Japanese Note Verbale No.158/A5 enumerating several reasons including the said firing case by the Militia Unit as the "...a Japanese patrol ship recently...was suddenly fired upon from the island and suffered damage..." On this occasion, we can hardly find proper words to appraise the outstanding service of the Korean Civilian Voluntary Militia Unit For Dokdo Self-Defense (led by Commander Hong, Soon-cil), staying at the barren rocky islets without being paid and depending upon self-sufficiency, devoting every thing to the nation relying on their sole allegiance, but contributing to Korean effective jurisdiction over Dokdo Islets particularly during the Korean war. It was quite corollary for the Korean government to reject the Japanese proposal to refer the "Dokdo issue" to ICJ formally by Korean Note Verbale dated October 28, 195427), in which Korean government at the time expressly stated the reasons why it rejected the Japanese proposal as the following(excerpt). : "The proposal of the Japanese Government that the dispute be submitted to the International Court of Justice is nothing but another attempt at the false claim in judical disguise. Korea has the territorial rights ab initio over Dokdo and sees no reason why she should seek the verification of her rights before any international court of justice. It is Japan who conjures up a quasi territorial dispute where none should exist." At the same time, the Korean government issued a Special Statement On "Dokdo" on October 28, 1954 in the name of Byun, Young-tae, the minister of Foreign Affairs Ministry. The main theme of the Statement was as shown below. : "...Dokdo is a symbol of the Republic of Korea's independence... How can it not be construed as a glimpse of reviving Japanese intention to invade Korea again, if Japan tries to deprive Korea of the Dokdo Islets again ?" (The Author's unofficial translation). The declared "Dokdo" policy at the time by Korean government was quite right and reasonable, and the Korean government policy has been kept ever since it was declared for more than half century, and shall be continued to keep it in future. To the Author's surprise, however, recently a few of learned Koreans look like to dare say something pedantic about the Dokdo issue deviating from the existing Korean government policy, despite the recent revelation of the Japanese Prime Ministerial Decree No.24 by which Dokdo was provided as non-Japanese island has put Japanese existing claim for a title over Dokdo into more difficult conditions to be justified. Such a pedantic view might be attributed either to a confusion caused by Japanese strong bizarre proposal such as Japanese Academic Circle's, etc. or to an ignorance of the existing Korean government policy aforesaid. Nevertheless, the essence of Japanese so-called "Dokdo issue" may be said as nothing but something conjured by Japanese "greed" over Korean "Dokdo". In this light of view, it may be more simple or reasonable way to take for learned Koreans to ask for Japanese Academic Circle to persuade Japanese government to cast the "greed" off, taking into account the Japanese provision which provided "Dokdo" as non-Japanese island and future-oriented new relations between the Republic of Korea and Japan. 2) A Review of Professor Wada Haruki's Settlement Method Of "Dokdo issue" Suggested at International Conference(Nov.18,'08) Professor Wada Haruki presented a "Method For Solving the Dokdo issue" at the International Conference Under the theme, "Dokdo: Historic Recognitions and International Justice"28) as follows. : "Japan is to recognize the Korean possession of Dokdo as an apology for the colonial rule of Korea. Korea is to give fisherman of Shimane Prefecture their secured rights to fish around Dokdo, as an expression of goodwill and friendship toward Japanese people." Professor Wada's above "Method" seems to be utterly unacceptable from Korean perspective and the reasons why unacceptable, the Author thinks are as shown below. Firstly: Dokdo belongs to the Republic of Korea, historically, legally and in light of the effective jurisdiction over the Dokdo for more than half-century by the Republic of Korea. Japan, therefore, has nothing to do with Dokdo. Secondly: "Korean sovereignty over Dokdo" can never be any object to make a compromise with. The concept of Korean sovereignty over Dokdo is above the international relations between the Republic of Korea and Japan. Thirdly: The Author likes to suggest that it may be much more reasonable for Professor Wada to recognize the historic fact that Japan took Korean"Dokdo" in 1905 during the Russo/Japanese war by "violence and greed" breaching international law(even the principle of estoppel) before thinking about some method. Fourthly: Professor Wada's the "Japan is to recognizw the Korean possession of Dokdo as an apology for the colonial rule of Korea" seems quite illogical and can hardly stand as a premise for the Method solving the issue, the Authur thinks. Japan is not with any legal right or practical situation to recognize Korean adherent lslets as Korean land. As to the "an apology for the colonial rule of Korea" with sincere mind shall be made separately with the "Dokdo issue". The Article 1, the Treaty On Friendship Renovation between Great Korean Kingdom and Great Japan concluded on February 27, 1976, provides that "the Korean Kingdom is an independent sovereign State and has equal right to Japan. Both the States treat each other with the comity of nations and shall not invade to each other...". Japan, however, breached the provision of Article 1 of the Treaty, enforcing the Korean kingdom to sign the Protocol Agreement(By this, Japan deprived Korean kingdom of her sovereignty) on February 23, 1904 just one year before Japanese cabinet made an illegal and clandestine decision to annex Korean islets "Dokdo", renaming the islets as "Takeshima" in order to place the islets under the jurisdiction of Head of Oki island, Shimane Prefecture on February 22, 1905. Also, enforced Korean kingdom to sign the Protectorate Agreement at 02:00 hours on November 18, 1905 and to sign the Annexation Agreement on August 29, 1910 respectively. Thus, Japan has to apology truly to Korean peoples for all the things aforementioned, but separately with the "Dokdo issue". Fifthly: Koreans have a plenty of evidences which verifies the fact that "Dokdo" belongs to Republic of Korea historically and by such international laws as Potsdam Declaration(8), SCAPIN No.677(January, 29, 1946), Japanese Prime Ministerial Decree No.24(June 6, 1951), Peace Treaty with Japan(Article 19(d)) concluded on September 8, 1951 and the Treaty On Basic Relations between Republic of Korea and Japan(June 22, 1965). Sixthly: Article 2 of Japanese Prime Ministerial Decree No.24(June 6,1951), provides explicitly that "Dokdo(Takeshima) islets are not Japanese island". Thus, not only the said international law but also the said Japanese Decree provides expressly on "Dokdo" as a non-Japanese island. Therefore, it is, the Author thinks, corollary for Japanese government to cast off the "greed" over Korean "Dokdo" islets since "Between the independent States, respect for territorial sovereignty is an essential foundation of international relations". 29) Seventhly: Historically and legally, "Dokdo" belongs to the Republic of Korea. In light of international law, "every State exercises an exclusive jurisdiction within its own territory".30) In this light, professor Wada's the said proposal, the Author thinks, falls within the purview of a kind of "condominium" over "Dokdo", which Republic of Korea shall never accept.
3) A Review of the Commentary by Bang, Ki-hyuck, Research Fellow(Korea Maritime and Fisheries Affairs Institute) On the Method For Solving so-called the "Dokdo issue" presented by Professor Wada Haruki at a Symposium(held at a celebration of the publication "Cognizance of History by Republic of Korea and Japan) on Nov. 26, 2008. The monthly Periodical ������Korean Dokdo Journal������ (the Inauguration Edition, April 10, 2009) carried the article "Japanese Academic Circle's New Method Proposed For Solving the "Dokdo issue"- Korea ․ Japan Should Be Reborn As Companions, Shaking Off the Yoke of Dokdo Issue-" by Mr. Bang, Ki-hyuck, Research Fellow. Reading Mr. Bang's the said article, the Author can hardly overlook some part of it, and would like to make an commentary thereon with humble views. To introduce a summary of Mr. Bang's article, he wrote on professor Wada's presentation on "Dokdo issue" at the symposium, making a subtle, but some affirmative response to the "Method of Solving so-called Dokdo issue" which professor Wada raised. Mr. Bang's response concludes as the following. : "It is the turn for our Academic Circle to answer to it(professor Wada's proposal for solving the "Dokdo issue"...). On this occasion, our Academic Circle should present a method for settlement of the issue in a response to it from a broad point of view." (the Author's unofficial translation into English.) The "Method of Solving the so-called Dokdo issue which professor Wada presented at the said symposium" introduced by Mr. Bang is similar to that which has, already, been introduced in earlier chapter, but more in details. Therefore, the Author likes to excerpt from Mr. Bang's article as bellow. [Professor Wada's remarks(Excerpt) at the symposium] : 'The Dokdo issue has come a big shackle to the development of the relations between the Republic of Korea and Japan due to unsettled Dokdo issue over so long a time. Japanese Academic Circle recently has shown a settlement method for solving the issue taking into account various items concerned as the following. That is, Japan is to recognize Korean possession of Dokdo, and Korea is to conclude a Treaty on the territory by which she shall provide with a secured fishing rights on the sea around Dokdo to Japanese fishermen, in order to solve the issue. As to the time, when the settlement on the Dokdo issue will be made, the time shall be coordinated with the time to settle so-called Japanese Northern four(4) islands on which a territorial dispute exists between Russia and Japan." * The Author's unofficial translation into English from Korean text. 1) Before making some comments on Mr. Bang's response, the Author likes to make several comments on the above Japanese Academic Circle's "Method of Settlement of the Dokdo issue" as follows. It is a regret for the Author not to make any affirmative response to it. In short, the said "Method" is utterly unacceptable from Korean perspective due to many basic problems concerned. It is a very disappointing moment for the Arthur to find something like a serious prejudice that the Japanese Academic Cicle might bear in mind in regard to Korean affairs. The following are the very basic items that the Author likes to indicate. : ① On the "Japan is to recognize Korean possession of Dokdo"; It is the Author's view that Japan has no legal authority to recognize Korean adherent islets to recognize as Korean territory, but for Japan to respect the Korean territorial sovereignty over the islets. ② As to the "Korea shall conclude a Treaty on the Territory by which she shall provide with a secured fishing rights on the around Dokdo to Japanese fishermen." It is the Author's understanding that "the sea around Dokdo" belongs to the territorial sea to which the jurisdiction of the Republic of Korea coincides in light of international law. To conclude a "Treaty on Territory" for a secured fishing rights on the sea around "Dokdo" to Japanese fishermen, implies a kind of "condominium" which can never be accepted by the Korean peoples and Korean government. ③ On the "As to the times when the settlement on the Dokdo issue will be made, shall be coordinated with the time to settle so-called Jpanese Northern four(4) islands on which a territorial dispute exists between Russia and Japan." As may well be known, "Dokdo" belongs to the territory of the Republic of Korea, historically, legally and by her effective jurisdiction over the "Dokdo". "Dokdo", however, was taken in 1905 during the Russo/Japanese war by Japanese clandestine decision to take with the backbone of military power which illegally landed on Korean peninsula by "violence and greed" as declared in the Cairo Declaration(December 1, 1943). On the other hand, to the Author's knowledge, so-called Japanese Northern four(4) islands were occupied by thee forces of the Union of Soviet Socialists Republic(U.S.S.R.) during the WWII. Therefore, "Dokdo" has no relation with the said Japanese Northern four(4) islands at all.. Frankly speaking, the Author was astonished to see the Japanese Academic Circle's hitting upon the idea to link so-called "Dokdo issue" with the Japanese Northern four(4) islands issue despite no relations between the said two issues, and wondered if the Japanese Academic Circle might be confused the people of the Republic of Korea with the Korean peoples once under Japanese illegal colonial rule in the past. 2) A Review of the Commentary by Mr. Bang, Ki-hyuck(Research Fellow, Korea Maritime and Fisheries Affairs Institute) On Professor Wada's Presentation On "Dokdo issue" at the said Symposium. By his article carried on the ������Korean Dokdo Journal������ (Inauguration Edition, April 10, 2009), Mr. Bang made an subtle, but some affirmative commentary to the said "Japanese Academic Circle's Method to Solving the so-called "Dokdo issue" by stating that :"Japanese Academic Circle has presented an affirmative method of solving the "Dokdo issue", and now is the time for our Academic Circle's turn to response to the Japanese Academic Circle." The Author, however, can hardly find what is such an affirmative "elements" in the Japanese Academic Circle's Method for solving the issue. Rather, it seems to be illogical and unreasonable though the "Method" might be a Japanese new means of approaching to the issue. It, therefore, is a regret for the Author not to accord to Mr. Bang's views aforesaid, and the reasons of the Author why not are shown below. ① "Dokdo" belongs to the territory of the Republic of Korea, and her sovereignty coincides with the exclusive jurisdiction within the territory of "Dokdo" in accordance with international law. Her sovereignty shall not be subject to any compromise and is the conception beyond the international relations between the Republic of Korea and Japan. In light of the view that "Between independent states respect for territorial sovereignty is an essential foundation of international relations"(J.L. Brierly), a truly affirmative future-oriented relations between the peoples of the Republic of Korea and peoples of Japan shall be found with the respect of Korean territorial sovereignty over "Dokdo" by Japanese government. ② On the one hand, Mr. Bang pointed out that Japanese Academic Circle tries to make linkage of "Dokdo issue" with her so-called Northern four(4) islands issue as a Japanese strategy to retrieve the said Northern four(4) islands, but on the other hand, Mr. Bang responded to the Japanese Academic Circle's Method to solving the "Dokdo issue as an affirmative one which the Author can never accord to. Particularly, the Author can not but help pointing out that so improper passages in Mr. Bang's remarks may be pointed out as the following. - "To speak the truth, the zone of waters beyond Dokdo is with comparatively meager fishing resources, and therefore, even if Japanese fishermen are allowed to make use of the zone of waters, it will not wield any desperate influence to our country." [Reasons]: Mr. Bang seems to have confused in treating the importance of integrity of sovereignty with that of fisheries affairs. The sovereignty of our territorial sea exists beyond the commercial value of the sea either with rich or meager fishing resources. - As to the "Japanese Academic Circle may be reducing their value of exchange object, I think, to the level that Korean side may afford to." [Reasons]: Mr. Bang seems to have misunderstood of the Japanese Academic Circle's new strategy of a kind of "condominium" over "Dokdo islets" as a special favour to Republic of Korea, but it is not so. Originally, Japan has nothing to do with the "Dokdo islets", and so is now, but Japan continues only to conjure up something like a quasi-territorial dispute over the islets. Therefore, it may be more reasonable for Mr. Bang to ask for the Japanese Academic Circle to persuade Japanese government to cast off the "greed" over "Dokdo" taking into account recently revealed Japanese legal provision which provides "Dokdo" as non-Japanese island. ③ As the Author indicated already that the substantial nature of the Japanese Academic Circle's Method of solving the issue is a kind of "condominium" over "Dodkdo", and not any favor that Mr. Bang may think. Therefore, the Author likes to point out as Mr. Bang's affirmative response to the Japanese Academic Circle's Method may be quite wrong. ④ With the passage "Now is the time for our Academic Circle's turn to respond to it. Our Academic Circle, too, should make a method to settle the issue in a broader point of view", Mr. Bang seems to conjure up an affirmative response from Korean Academic Circle. The Author has no information on the Academic Circles both the Japanese and Korean sides, but the Author thinks an Academic Circle should approach to a subject by means of academic way beyond any interest or influence. In this light, it can not be proper for Mr. Bang to suggest to make "an affirmative method from a broad point of view" to our Academic Circle. ⑤ Mr. Bang quote "three islands" in the Exclusive Economic Zone (EEZ) delimitation dispute case between Italy and Tunisia in 1971. In the case, however, main issue is a delimiting the outer limit of respective EEZ, and territorial issue was a secondary one. The three islands are without any legal evidences verifying their nationality, but "Dokdo islets" have a plenty of legal evidences verifying the "Dokdo islets" as the Korean territory such as Potsdam Declaration(8), SCAPIN NO.677(January 29, 1946), Peace Treaty with Japan(Article 19(d)), the Treaty On Basic Relations between Republic of Korea and Japan(June 22, 1965) and the Japanese Prime Ministerial Decree No.24(June 6, 1951) as well as many historical evidences. Therefore, the Author likes to point out that Mr. Bang's quotation of the three islands in the maritime dispute case between Italy and Tunisia in comparison to "Dokdo" was quite improper. ⑥ Mr. Bang concluded his article with the passage "Now is the time for Academic Circles go ahead in order to lead peoples and governments so that both the Republic of Korea and Japan may reborn as the true companions in 21c. after being released from the yoke of the "Dokdo issues", taking into account bigger values and casting off meager ones." The Author may accord to the passage of "both the Republic of Korea and Japan should be reborn as true companions in 21c. after being released from the yoke of "Dokdo issue", but can never do so with the rest part of the passages. So-called "Dokdo issue" is a territorial issue and there can be no different values in either bigger or minor in regard to territorial issue. Furtherore, the "Dokdo issue" should be attributed to Japanese "greed" over the Korean islets "Dokdo". Therefore, it may be more reasonable for Mr. Bang to suggest the Japanese Academic Circle to persuade the Japanese government and some Japanese people to cast off the "greed" over Korean islets "Dokdo", taking into account the said Japanese Prime Ministerial Decree No. 24 providing the Dokdo as non-Japanese island rather than to conjure up an affirmative response from our Academic Circle. ⑦ Mr. Bang recognized that "Dokdo is a sensitive territorial issue. It, however, is not avoidable to bear in mind that territorial issue can not be settled with historical facts and logics of international law only....I think that it is, now, more important for us to listen to the assertion and settlement method of the issue from Japan, the other disputant." Exactly speaking, there exists not any territorial dispute concerning the "Dokdo islets", because the islets are absolutely Korean territory, historically, legally and in light of effective jurisdiction by the government of the Republic of Korea for over half-century. There is not a problem concerned with the "Dokdo islets" except for Japanese strategy to conjure up something like a quasi-territorial dispute with "greed" over the Korean islets "Dokdo". In this light, there is no territorial dispute nor disputant in real sense regarding the "Dokdo" islets. In view of the facts aforementioned, the Author would like to point out that Mr. Bang's passages "territorial issue can not be settled with historical facts and logics of International law only" and "now, it is more important for us to listen to the assertion and settlement method of the issue from Japan" are not only unacceptable but also should be improper to keep them because it might cause some critical confusion concerning the “Dokdo" issue. The Author wonder why such an absolute Korean territory like "Dokdo islets" become the talk of some one, bearing in mind some questions like the following items. I. SCAPIN No,677(Jan. 29, 1946) explicitly excluded "Dokdo" from the definition of Japan, and the Japanese Prime Ministerial Decree No.24(June 6, 1951) explicitly provided "Dokdo" as "not a Japanese island". And "Dokdo" has been under the jurisdiction of the government of the Republic of Korea for more than fifty(50) years. Historically, "Dokdo" has been Korean territory ever since A.D. 512 by verifiable Record of Three Korean Kingdom History Book compiled by Korea Dynasty, A.D. 1145). What else is required for "Dokdo" to be Korean territory ? II, Will Mr. Bang someday have an opportunity to explain the reasonable reasons Why he have come to think of "now is more important time for us to listen to Japanese assertion and method of settlement of the issue of Dokdo" ? Despite the fact that "Dokdo" is the "Symbol of Korean Independence!" ? III. As to Mr. Bang's passage "Now is the time for Academic Circles to go ahead in order to lead peoples and governments so that both the governments of Korea and Japan may reborn", will Mr. Bang specify someday more in details what kind of Academic Circle does he mean and why have he come to the idea to make the Academic Circle have to lead governments and peoples for the "sensitive" political issue(he indicated territorial issue is a sensitive issue)? As a conclusion, the Author likes to remind Mr. Bang the fact that Korean government declared the "Dokdo" as the "Symbol of the Korean Independence" in the name of Foreign Affairs Minister Byun, Young-tae on October 28, 1954, and also like to point out that Mr. Bang's such passages as "territorial issue can not be settled with historical facts and logics of international law only...now it is more important for us to listen to the assertion and the settlement method of the issue from Japan, the other disputant" are so deviating from the existing more than half-century long Korean government's "Dokdo" policy.
Ш. Conclusion
Historically speaking, Dokdo has been Korean territory since the 13th hear of King Jijung's rule(A.D.512), Shilla Dynasty when general Yi Sa Bu conquered Wusanguk Country(consisting of Ullung island and Wusan(Dokdo)) according to the Sam Guk Sagi(Verifiable Record of Korean Three Kingdoms History, compiled by Korean government, A.D.1145). Legally speaking, Potsdam Declaration(8), SCAPIN No.677(Jan. 29, 1946), Peace Treaty with Japan(Article 19(d)), Treaty On Basic Relations Between the Republic of Korea and Japan(June 22, 1965) provide with legal basis on which "Dokdo" stands as a Korean territory. Furthermore, Dokdo has been under the jurisdiction of the Republic of Korea ever since the establishment of the State(August 15, 1948) for more than fifty(50) years. And recently, it was revealed in November 2008 that Japanese Prime Ministerial Decree No.24(June 6, 1951) provided that "Dokdo"(Takeshima) were not Japanese island by a Korean(Lee, Yang-soo) living in Japan. Therefore, it is quite corollary for Japanese government to cast off the unjustified "greed" over Korean "Dokdo" particularly taking into account the Japanese Prime Ministerial Decree No. 24 providing "Dokdo" as a non-Japanese island. However, Japanese government has kept silence ever since the said provision was revealed in 2008. Rather, there appears to be of unfavourable omen while Japanese government is keeping silence. As we have reviewed earlier, Japanese Academic Circle's behaviour with so-called "Method of solving the Dokdo issue", a Japanese professor's "Multiple Framework" approach to the issue and a trend of revival of old Japanese proposal of referring the issue to ICJ may be strongly pushed ahead rather than giving up the unjustified "greed" over the islets. On this occasion, Korean peoples shall, always, be alert on Japanese behaviorism concerned with Dokdo unless they give it up. even if Korean peoples have a plenty of historical and legal evidences to verify Korean title over Dokdo. At the same time, Koreans must, always, be prudential not to make any slightest error or misjudgement on the Dokdo issue with Japanese side since in international law, an agreement is a law for those who make it as professor J. S Brierly stressed. Nevertheless, I have a hope that "Dokdo" issue will consequently be settled peacefully before the Korean peoples' espret de corps to defend the territorial integrity of "Dokdo" with the strong will to preserve as we inherited from forefathers and some day to hand it over to our next generations, and, also, with the potentiality of Japanese disillusion at the issue. The aforesaid Korean government's "Special Statement On Dokdo" declared by Foreign Minister Byun, Young-tae was quite right at the time and so is today and shall, also, be right in the future, showing the direction for us to go with the Dokdo like lighthouse in a dark night. Closing this article, the Author likes to introduce the "Special Statement On Dokdo" as the following. * The Author's unofficial translation into English from a Korean text.
: "Special Statement On Dokdo"(October 28, 1954) by the name of Foreign Affairs Minister Byun, Young-tae.
"Dokdo is the first sacrificed soil of Korean territory in the course of Japanese past invasion to Korea. With the post WWII liberation of Korea from the Japanese occupation, Dokdo islets were retrieved back to Korea, being hugged deep into the bosom of all the Korean peoples. Thou, the Islets, are the very symbol of the independence of the Republic of Korea. Without anticipating a furious resistance and revenge to come from all the peoples of Korean race, can any foreign state extend her greedy hand out again dare to take the islets from Korrean bosom? Oh! the Dokdo Islets! Thou art not several common rocks at all, but a group of glorious anchors for the Korean affinity "Hangyorae", laid firmly in the East Sea. Koreans shall never be proud of the independent Republic Korea, if we coud not protect the Dokdo Islets again, the symbol of Korean independence! How can it not be construed as a glimpse of reviving Japanese intention to invade to Korea again, if Japanese continue to try to deprive Korea of the Dokdo Islets again?"
- The End -
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