Organizer: Pilkyu Kim, University of Maryland, USA Recent territorial disputes over groups of islets in the East Sea and the South China Sea have contributed to regional instability. Disputes over Senkaku/Diaoytai by China and Japan, and claims over Dokdo/Takeshima by Korea and Japan represent some of the fundamental obstacles that hinder relations between China, Korea, and Japan.
As we enter the first decade of the 21st century, there are new trends, transformations, and choices that comprise contemporary international relations. In discussing how to develop and cultivate an improved relationship between these neighboring countries in Northeast Asia, this panel proposes to reexamine the controversial territorial disputes from new historical, international political, and legal perspectives.
The Dokdo/Takeshima, and Diaoyutai/Senkaku Island dispute between Korea, Japan, and China and Japan is some of those typical island disputes in the East Asian region, which seems to have attracted more attention and become more sensitive in the region and beyond recently. In a sense, these disputes maybe deemed as a result of the “silence” of the San Francisco Peace Treaty, to which neither Korea nor China is a party.
While it is important for Korea and China to try to defend their sovereignty over these islands, these disputes may not be easily solved in the near future. It has even been argued that the international law regime has failed to play a helpful role in solving such disputes. Besides, the relevant countries are reluctant to submit these disputes to the international judicial organs. In such a situation, it seems more practical to seek the settlement of these disputes outside the San Francisco Peace Treaty framework.
The “new Asian approach” stresses the importance of solving these disputes by using regional international law vehicle while focusing on joint security and development in the region. In recent years, as the regional integration process speeds up among the Asian countries, new forum or legal vehicles other than the San Francisco Peace Treaty framework may be sought for the settlement of these disputes. It is argued that the development of regional international law in Asia could potentially provide helpful and efficient legal regimes for the settlement of these disputes, such as the ASEAN regime or the “Six Party Talks” regime which is more recent and compact. In addition, with the ongoing globalization process, East Asian countries are facing more common challenges, it is thus helpful and practical for them to shift their focus on the disputed islands from sovereignty claims to joint security and development undertakings.
An unfortunate legacy of the San Francisco Peace Treaty is the territorial questions, namely, the settlement of small islands that were part of the Japanese empire until its collapse in 1945. There are three contested territorial areas: the Northern Territories, Takeshima/Dokdo, and Diaoyutai/ the Senkaku Islands. Challenging Japan’s right to retain these small islands are Russia’s claim to the Northern Territories, Korea’s claim to Dokdo, and the claim of the People’s Republic of China and the Nationalist Government to the Senkaku Islands.
The provisions of the peace treaty find their roots in the wartime pronouncements of the Cairo Declaration, Yalta Agreement, and Potsdam Declaration. The principles found in the statements came from the policy papers and memoranda of a small group of planners, made up mostly of lower and middle level State Department officials and academic specialists. These recommendations reflected the values and assumptions of the planners. Later, Cold War considerations were to increasingly play an important role, where strategic evaluations superseded historical and legal reasoning.
Most of the controversies are caused by the looseness of the language, by the ambiguity of the provisions, and by the very omission of the names of the islands involved. Words such as “minor islands” were not clarified, yet Japan was allowed to retain sovereign rights over these ill-defined islands. Therein lies the source of the controversies. An enormous amount of emotions are attached to territory, making these conflicts a matter of national prestige. The inadequacies of the peace treaty on the territorial questions have left us with intractable territorial disputes.
Japan, in the course of its assertion of sovereignty over Dokdo/Takeshima, frequently refers to the Treaty of Peace with Japan. In September 1951, the multilateral Peace Treaty with Japan included the following statement in Article 2(a) dealing with territory: “Japan, recognizing the independence of Korea, renounces all rights, title and claims to Korea, including the islands of Quelpart, Port Hamilton and Dagelet."
The Treaty of Peace did not mention Dokdo Island, and none of the subsequent post-World War II treaties explicitly ceded sovereignty over the uninhibited island to any specific state. This lack of clarity in Article 2 (a) has led to conflicting interpretations over the status of Dokdo between Korea and Japan.
The key question of whether the Treaty of Peace is the ultimate determinant of the disposition of Dokdo merits further examination. In this context, the nature of Korean sovereignty over Dokdo prior to the Japanese annexation is relevant and requires close consideration as well.
This paper attempts to shed light on the problematic interpretation of the Peace Treaty through a re-examination of several important historical and legal factors: the Vienna Convention on the Law of Treaties, a brief historical overview of Korean claims over Dokdo, the impact of shifting American occupation policy during the Cold War, and subsequent political considerations on the status of Dokdo.
In her July speech at the ASEAN Regional Forum in July, 2010 Hillary Clinton drew dramatic attention to the decades-long festering impasse over coastal islands in the East Asian region. Such disputed islands include prominently the Spratly and Parcel islands in Southeast Asia and the Dokdo and Diaoyutai islands in Northeast Asia. What these island disputes have in common is the lack of an effective method at resolution. In the present international legal order coastal disputes have most frequently been the subject of international dispute resolution mechanisms, including most prominently the International Court of Justice. It is a striking paradox that such disputes in East Asia have not been presented to the International Court of Justice or to other more consensual mechanisms. The disputant involved in three of the above four disputes, China, has resisted even multilateral efforts at resolution. China’s effort to keep such discussions on a bi-lateral level, presumably where it carries more weight, resulted in the July US support of the multilateral effort promoted by ASEAN countries. To the North, Japan and South Korea have likewise not taken advantage of third-party mechanisms to resolve their long-standing dispute over Dokdo. This paper will consider the potential for international legal mechanisms to address these festering disputes.
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