Why now is the time to resolve the Dokdo/Takeshima dispute.

AuthorBowman, Garret

Since the second half of the twentieth century, the Republic of Korea and Japan have been feuding over the Dokdo/Takeshima islets, a pair of small rocky landmasses located in the East Sea/Sea of Japan. Resulting from a rise of nationalism and the influence of historical identity politics, tension over the Dokdo/Takeshima islets is undermining an otherwise prosperous relationship between Korea and Japan. Given Korea's de facto control over the Dokdo/Takeshima islets and Japan's questionable claim to sovereignty under international law, this Note advocates Japan's acknowledgment of Korean sovereignty. Korean- politicians must also acknowledge the danger posed by pandering to nationalist populism and seek to create arbitration mechanisms for a peaceful resolution between the countries. This Note will conclude that resolving the Dokdo/Takeshima controversy presents a unique opportunity to begin unwinding the political tensions that threaten Northeast Asia's productive economic interdependence.

CONTENTS I. INTRODUCTION II. BACKGROUND A. Historical Context B. UNCLOS: The Law of the Sea III. PROBLEMS WITH THE STATUS QUO AND ICJ ADJUDICATION A. The Rise of China and a Changing U.S. Role in the Region B. The Adverse Effect of Korean Populism on Compromise and De-Escalation C. Neither ICJ Jurisdiction nor Arbitration over the Sovereignty Issue Is Feasible IV. A COMPREHENSIVE APPROACH TOWARDS A TENABLE SOLUTION A. International Law Favors Korean Sovereignty B. Korea and Japan's Strategic Considerations C. Beyond Sovereignty: Resolving Boundary and Resource Issues V. CONCLUSION I. INTRODUCTION

"[T]o the Korean people Dokdo is not merely [a] tiny island off the eastern sea. It is indeed the symbol of Korean sovereignty vis-a-vis Japan and the test case of Korean sovereignty." (1)

In 2005, outside the Japanese embassy in Seoul, an elderly Korean woman sliced off her finger in protest of Japan's continued claims to a rocky pair of islets roughly halfway between Korea and Japan in the East Sea/Sea of Japan. Dokdo/Takeshima's East and West Islands have a circumference of 1.9 kilometers and 2.8 kilometers respectively. (2) They are historically uninhabited, but efforts by the Korean government to assert ownership have resulted in a coast guard presence and seasonal occupation by two civilians. (3) Western explorers and colonial writers referred to the islets as the "Liancourt rocks," while they are known as the "Dokdo Islands" in Korea and the "Takeshima Islands" in Japan. The islets are the subject of an ongoing dispute that has existed since the removal of Japanese occupation from Korea at the end of World War II and has long been a sticking point in Korean and Japanese diplomacy. Most recently, the dispute was the subject of an ad campaign from both countries outlining their positions on the issue. (4)

Korea has been in practical control of the islets since the 1950s. (5) Japan has consistently contested Korea's claim and has been urging International Court of Justice (ICJ) jurisdiction over the sovereignty issue. However, Japan's strategy of challenging sovereignty misses an opportunity to implement an arbitration system that would set a stabilizing precedent for a tense region. Even if Japan were to win before the ICJ, the ruling would create a serious backlash from the Korean public that would harm Japanese interests. Further, Japan has claims over other islands that are aggressively challenged by China and Russia. (6) Thus, using the Dokdo/Takeshima dispute to develop a regional arbitration mechanism to resolve these various island claims would more effectively serve Japanese interests than a continued insistence on what amounts to a lost cause. (7) Moreover, in addition to the main sovereignty claim, there is also an issue over resource rights and economic boundaries. Creating a dispute mechanism would provide a forum to negotiate these claims as well.

Korea, for its part, has resisted Japan's suggestions to submit the Dokdo/Takeshima issue to the ICJ. Despite having a stronger legal position, (8) Korea does not wish to potentially legitimize Japan's claims to an island that Korea already controls. Further, domestic politics may make it politically infeasible for the Korean government to allow ICJ adjudication regardless of a likely favorable outcome. (9) Instead, if Japan formally acknowledged Korean sovereignty over Dokdo/Takeshima, Korea would be more likely to settle on issues of resource rights and economic boundaries. Moreover, Korea shares an interest with Japan in obtaining a peaceful mechanism that can be used to resolve China's territorial claims off Korea's coast.

This Note argues that there are three basic approaches for dealing with the island controversy between Korea and Japan: (1) the two countries can continue to leave the issue of sovereignty over the islands unresolved; (2) Korea could accept Japan's offer to submit the issue of sovereignty to the ICJ or propose arbitration; or (3) the countries could adopt a novel solution where Japan recognizes Korean sovereignty in exchange for arbitration over the accompanying issues of resource and boundary rights. Of these choices, only the third is likely to succeed in providing a means for resolving the issue and promoting increased stability within the region.

By recognizing Korea's sovereignty over the islets, Japan can remove the strain from its relationship with Korea and lessen tensions in the region as a whole. Submission to the ICJ is not advisable because Japan has a weaker legal position, and Dokdo/Takeshima is an issue of vital national importance for Korea; thus, a ruling against Korea would be politically unenforceable. Moreover, while Japan is currently a party to ICJ compulsory jurisdiction, Korea is not. (10) Agreeing to arbitration or settlement of boundary issues would not only avoid these obstacles, but would also promote stability, as both Korea and Japan would have the ability to present a united front against Chinese territorial ambitions in the region.

Part II of this Note provides a background of the dispute focusing on the historical context and legal framework. Part III explains why neither of the first two options listed above is feasible in the current Asian legal and political climate. Part IV makes the case for the adoption of the third option where Japan acknowledges Korean sovereignty in exchange for arbitration over unresolved maritime boundary issues and fishing rights.

  1. BACKGROUND

    1. Historical Context

      The controversy between Japan and Korea over the Dokdo/Takeshima islets illustrates the intractable difficulties that seemingly insignificant territorial disputes can pose due to their historical and political context. (13) The Dokdo/Takeshima dispute in particular is complicated by a regrettable past that has yet to be resolved. Japan's claims to the Korean controlled Dokdo/Takeshima islets and Korea's response to these assertions are saturated with the historical context of Japan's colonial past. For Koreans in particular, Dokdo/Takeshima cannot be understood without the perspective of its experience as a colonial subject of Japan.

      Japan formally annexed the Dokdo/Takeshima islets in February of 1905, five years before Korea was forced to effectively surrender its entire territorial sovereignty to Japanese colonial control. (14) The period of Japanese rule lasted from 1910 to 1945, when Japan surrendered after World War II. (15) The Treaty of San Francisco's final draft in 1951 outlined the relinquishment of Japanese colonial territory, but made no explicit reference to the islets. (16) In the late 1950s, Korea reasserted its claims to the islets, eventually building a few structures and stationing guards on them. (17) Japan opposed these actions and has issued regular protests over the islets while continuing to claim sovereignty. (18)

      Japan's occupation of Korea during the first half of the twentieth century caused enormous hardship and suffering for Koreans. (19) Japan's refusal to adequately recognize government-sponsored sexual slavery of Korean women is one issue of the notable imperialist legacy that continues to inflame relations between the two countries.20 Although over the past 20 years Japan has periodically issued apologies for both the use of "comfort women" and the annexation of Korea, without material compensation to the victims or a formal investigation and accounting, some have seen these statements as empty gestures. (21) To the Korean people, Dokdo/Takeshima symbolizes the brutal thirty-six-year Japanese occupation, (22) and Japan's claims to the islets are seen as proof of an unapologetic attitude. (23) The 180,000 Korean tourists who have visited the islets since Seoul began allowing tourists in 2005 represent the public's investment in Dokdo/Takeshima as a symbol of Korea. (24) Television stations give weather reports of the islets, and some stations end their daily broadcasts with pictures of Dokdo/Takeshima as the national anthem plays. (25) One commentator stated that from a Korean perspective, the dispute is about "deep emotional trauma that occurred as a result of Imperial Japan's brutal occupation that has since been internalized into Korea's cultural narrative and represents an unhealed psychic scar that has become an article of faith with an almost religious significance." (26)

      The Japanese public appears less engaged with the island issue, but is politically shifting, at least temporarily, to a more nationalistic foreign policy. This shift is evidenced by the recent election of Prime Minister Shinzo Abe, who has made more patriotic overtures. (27) Nationalist Japanese political elements reject Japan's "apology diplomacy" for wartime atrocities and seek to revise history textbooks and present Japan's militaristic era in a more positive light. (28)

      Officially, the Japanese government argues that Japanese activities established sovereignty over Dokdo/Takeshima by the...

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