Korea's sovereignty over Dokdo and Japanese colonialism

By Doh See-hwan

This year marks the 80th anniversary of liberation, when Korea regained its sovereignty after Japan's 1910-45 colonial occupation, and the 60th anniversary of the normalization of diplomatic relations between Korea and Japan. However, Japan's provocation of encroachment on Dokdo, a symbol of Korea's territorial sovereignty, is still ongoing. The Japanese “Takeshima Issue Research Group,” which has been sending out Japan's claim to Dokdo, has begun to denigrate the 1877 Daijokan Directive of the Meiji government, which recognized Korea's sovereignty over Dokdo, and the Japanese Territorial Sovereignty Exhibition Hall is currently undergoing a large-scale remodeling project with a budget of 10 billion won ($6.96 million).

The background to this trend is that 2025 is the 120th anniversary of Japan's invasion of Dokdo, and the 20th anniversary of the enactment of "Takeshima Day" in Shimane Prefecture, Japan, which was founded to commemorate the 100th anniversary in 2005. Moreover, the seriousness of the problem is revealed in that Japan's attempt to invade Dokdo based on its imperialist aggression in 1905 has been openly expanded and reproduced to the present day, 120 years later, running counter to the establishment of a community of peace in Northeast Asia.

Under such awareness of the problem, I looked deeply into the essential problem of the distortion of the principles of international law in Japanese claims to Dokdo raised by mobilizing international law. Through this, I tracked and identified the problems that the Japanese colonialism inherent in the title study of international law at the Japanese Society of International Law, which has established the policy foundation of the Japanese government's claims, and the "violence and greed" in the Cairo Declaration, which first declared Korea's independence in 1943, are not only being coincident as an essential substance but also leading to result in the distortion of international law.

Japan's claim to Dokdo over Korea's sovereignty began in earnest on April 28, 1952, before the San Francisco Peace Treaty of 1951 came into effect, and the starting point was the Peace Line Declaration, which the Korean government declared on Jan. 18, 1952, to protect Dokdo's sovereignty. In order to neutralize this, the Japanese government presented the note verbale to the Korean government four times starting in 1953. It is noteworthy that the Japanese government, which had insisted on the "theory of the preoccupation of terra nullius" until the third time, raised the "theory of inherent territory" in the fourth time in 1962.

The Japanese government officially raised the claim of inherited territory in the 17th century through its note verbale submitted to the Korean government in 1962 due to flaws in international law in the theory of preoccupation of terra nullius that it claimed when it incorporated Dokdo in 1905. However, due to the conflict between the two titles, it encountered errors in the chronological series and limitations in intertemporal law that led to the invocation of the San Francisco Peace Treaty in 1951. The inherited territory in the 17th century that the Japanese government raised in 1962 was not established as a historical title because of the Edo Shogunate’s Order of Prohibition on Crossing the Seas in 1696 which began with the kidnapping of Ahn Yong-bok in 1693, and the Meiji government’s Dajokan Directive in 1877.

Moreover, the inherited territory in the 17th century and the theory of preoccupation of terra nullius are in conflict. If Dokdo had been Japan's inherent territory since the 17th century, there was no need to preoccupy it as terra nullius in 1905, and conversely, if Japan preoccupied Dokdo as terra nullius in 1905, this proves that it was not Japan's inherent territory since the 17th century.

In response to these issues, the Japanese Society of International Law argues that Japan's 17th-century claim has been replaced at the request of modern international law. However, such a replacement of title does not exist in international law, and there is no precedent for Japan replacing the islands it owns based on historical title with other titles such as preemption, so it is not valid in international law.

Regarding the Treaty of Peace with Japan, which is invoked as a conflict between two titles, Japan lobbied by mobilizing U.S. political adviser W. J. Sewald, taking advantage of the shift in the treaty's stance from punishment to anti-communism due to the rise of the Cold War. But it ended in failure by omitting Dokdo from the treaty after being marked as Japanese territory only once in the 6th U.S. draft.

At this point, I paid attention to the distortion of the principles of international law led by the Japanese Society of International Law, which has been building the policy foundation for the Japanese government's claim to Dokdo, as it was 120 years ago. This is because Japan, a late imperialist country before and after the invasion of Dokdo in 1905, mobilized the Japanese Society of International Law, established in March 1897, to build the international legal foundation for its foreign policy.

The seriousness of the problem exists in that the Japanese Society of International Law does not simply justify or legalize the policy of aggression against Korea afterwards, but also presents distortions to international law that proactively develop the policy of aggression and urge its realization. The International Law Journal, the academic journal of the Japanese Society of International Law published from February 1902, contains numerous papers leading Japan's policy of invading Korea, from the nullification of the Korean Empire's Declaration of Neutrality in 1904 to the legalization of the Forced Annexation on Aug. 22, 1910.

Moreover, the Temporary Investigation Committee of the Ministry of Foreign Affairs, which the Japanese government has concealed in connection with the Japanese Society of International Law, is an organization established to legalize an invasion policy based on Japanese colonialism from March 1904 to February 1906, and not only coincides with the period of invasion of Dokdo and forced Korea-Japan Treaty of 1905, but also its members led the subsequent theory of forced annexation.

In particular, it is urgent to identify the distortion of international law by Sakutaro Tachi, who was the only member of the committee to be evaluated to have completed his duties and later served as an adviser to the Ministry of Foreign Affairs until his death in 1943. Tachi cannot be free from criticism for establishing a foundation for harsh colonization based on Japanese-style legal positivism in the process of invading Korea, including the distorted legal principles of Japan's claim to Dokdo through the presentation of the theory of preoccupation of terra nullius as a method of colony acquisition by European imperialist countries, exclusion of the duty of notification as requirements and emphasis on effective control.

In the end, it is nothing but a typical distortion of international law by Japanese colonialism inherent in the legalization of the invasion policy against Korea, starting with the invasion of Dokdo.

I would like to once again urge Japan to fulfill its true historical and international legal obligations as a member of the Northeast Asian Peace Community through identifying and sharing the essence of Japanese colonialism inherent in Japan's invasion of Dokdo, which has lasted for 120 years since 1905, and the distortion of international law by the Japanese Society of International Law that has continued since Sakutaro Tachi.

Dr. Doh See-hwan is director general of the Office of Dokdo Research and director of the Dokdo Museum at the Northeast Asian History Foundation.