Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary
2007; Taylor & Francis; Volume: 38; Issue: 1-2 Linguagem: Inglês
10.1080/00908320601071504
ISSN1521-0642
Autores Tópico(s)Arctic and Russian Policy Studies
ResumoAbstract This article examines the historical events relevant to the claims of sovereignty by Japan and Korea over Dokdo, the legal doctrines that have been applied by international tribunals to other disputes over remote and uninhabited territories, and the principles governing maritime boundary delimitation that are relevant to the ocean space around Dokdo. The applicable decisions of the International Court of Justice and other tribunals are examined in detail. Among the topics addressed are the methods of acquiring sovereignty over territory, the relevance of contiguity to such claims, the requirements of effective protests, and the activities and omissions that constitute acquiescence. Attention is also given to the status of this matter as a "dispute" and how closure might be brought to it. Keywords: DokdoislandsKoreaJapan The author acknowledges with appreciation the contribution to this article by Christopher Chaney, Class of 2005, William S. Richardson School of Law, University of Hawaii at Manoa. The author has also benefitted from suggestions offered by numerous scholars and colleagues including, in particular, Professor Chun Hyun Paik (Seoul National University), Dr. Gab Yong Jeong (Korean Maritime Institute), Professor Edward J. Shultz (University of Hawaii at Manoa), and Dr. Robert Smith (U.S. Department of State). Funding to support this research was provided by the Korea-America Joint Marine Policy Research Center, a collaborative effort between the University of Rhode Island and the Korea Maritime Institute. The views expressed herein are solely those of the author. Notes 1. The rugged beauty of these rocky islets and its surrounding flora and fauna are brought to life in Beautiful Island, Dokdo (Republic of Korea: Ministry of Maritime Affairs and Fisheries, 2000). The dimensions of the islets are given on page 11 of this book. 2. See id., at 68–69 (showing photographs of Ullungdo as seen from Dokdo at sunset). See also picture of Dokdo taken from Ullungdo at sunrise in March 1992 in Hongju Nah, A Study of Territorial Sovereignty over the Dokdo Islets in Light of International Law 6 (1997). 3. "South Korea's Ullung-Do is only 47 nm from Take Shima, whereas Japan's Oki Gunto is 86 nm distant from the disputed islands." J. R. V. Prescott, Maritime Jurisdiction in East Asian Seas 48 (East-West Environment and Policy Institute Occasional Paper no. 4, 1987). 4. Traditional international law texts list the methods of acquiring territory as cession, occupation, accretion, subjugation, and prescription. See, e.g., 1 Oppenheim's International Law 679, 9th ed; eds., Sir Robert Jennings and Sir Arthur Watts (1992). A variation on this list is used here because cession and accretion are not relevant to the present dispute and neither claimant has used the language of "subjugation" with regard to its position. In previous eras, territory has been acquired through the means of subjugation, but international law no longer recognizes the legitimacy of acquiring territory through force. United Nations Charter, art. 2(4); and D. H. N. Johnson, "Acquisitive Prescription in International Law," 27 British Year Book of International Law 332, 342 (1950) ("war is now definitely outlawed"). 5. See generally Johnson, supra note 4, at 353–354; and Seokwoo Lee, "Continuing Relevance of Traditional Modes of Territorial Acquisition in International Law and a Modest Proposal," 16 Connecticut Journal of International Law 19 (2000). 6. Johnson, supra note 4, at 348–349. 7. See infra text, at notes 339–342. 8. See infra text, at notes 393–395. 9. See infra text, at notes 119 and 201–205. 10. The material in this section is adapted and updated from Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea 17–19 (1997); and Jon M. Van Dyke, "An Analysis of the Aegean Disputes Under International Law," 36 Ocean Development and International Law 63–117 (2005). 11. The Arbitral Award Rendered in Conformity with the Special Agreement Concluded on January 23, 1925 Between the United States of America and the Netherlands Relating to the Arbitration of Differences Respecting Sovereignty over the Island of Palmas (or Miangas), 2 R.I.A.A. 829 (Apr. 4, 1928), reprinted in 22 American Journal of International Law 867, 909 (1928) [herein after cited as Palmas Arbitration]. 12. Philip C. Jessup, "The Palmas Island Arbitration," 22 American Journal of International Law 735, 735 (1928). 13. At the time, Judge Huber was the president of the Permanent Court of International Justice. 14. See, e.g., Johnson, supra note 4. 15. Eritrea-Yemen Arbitration, available at www.pca-cpa.org (1998–99), 1998 Award, para. 104. 16. Palmas Arbitration, supra note 11, at 867. 17. Id., at 893–94. See infra text at notes 379–389, where this topic is discussed in more detail. After the Philippines became independent in 1946, it was reluctant to accept Judge Huber's 1928 ruling, but in December 2003, Ambassador Alberto Encomienda, the director of the Maritime and Ocean Affairs Center in the Philippines Department of Foreign Affairs, said that the Philippines had renounced its claim to Palmas (Miangas) during a recent meeting with Indonesia on maritime and ocean concerns. Carina I. Roncesvalles, "RP Avoids Dispute with Indonesia on Las Palmas," Business World, Dec. 18, 2003, at 12. 18. Arbitral Award of His Majesty the King of Italy on the Subject of the Difference Relative to the Sovereignty over Clipperton Island (France v. Mexico), Jan. 28, 1931, 26 American Journal of International Law 390 (1932) [hereafter cited as Clipperton Arbitration]. See generally Jon Van Dyke and Robert A. Brooks, "Uninhabited Islands and the Ocean's Resources: The Clipperton Island Case," in Law of the Sea: State Practice in Zones of Special Jurisdiction 351–392, ed. Thomas A. Clingan (1982); and Jon M. Van Dyke and Robert A. Brooks, "Uninhabited Islands: Their Impact on the Ownership of the Oceans' Resources," 12 Ocean Development and International Law 265–300 (1983). 19. Clipperton Arbitration, supra note 18, at 393. 20. Id., at 394. 21. Id. 22. Id., at 393. 23. Legal Status of Eastern Greenland (Denmark v. Norway), [1933] P.C.I.J., Ser. A/B, no. 53, at 22, 75. 24. Id., at 46. 25. Id. 26. Id., at 50–51. 27. Id., at 54. 28. Minquiers and Ecrehos case (France/United Kingdom), [1953] I.C.J. Rep. 47. 29. Id., at 57. [Emphasis added.] 30. Each group contains "two or three habitable islets, many smaller islets and a great number of rocks." Id., at 53. 31. The Court noted that "even if the Kings of France did have an original feudal title" to the adjacent Channel Islands, "such a title must have lapsed as a consequence of the events of the year 1204 and following years." Id., at 56. "To revive its legal force today by attributing legal effects to it after an interval of more than seven centuries seems to lead far beyond any reasonable application of legal considerations." Id., at 57. 32. Derek W. Bowett, The Legal Regime of Islands in International Law 52 (1978). The United Kingdom submitted evidence that the Jersey courts had exercised criminal jurisdiction over the Ecrehos and Minquiers islets during the nineteenth and twentieth centuries, that the few habitable houses on the islets had been required to pay property taxes, that deeds conveying property had been registered in Jersey, that custom houses had been established by Jersey officials in both islet groups, and that Jersey officials visited the islets on occasion to license boats, collect census data, and supervise construction of maritime safety facilities. Minquiers and Ecrehos case, supra note 28, at 65–66, 69. 33. Eritrea-Yemen Arbitration, 1998 Award, supra note 15, para. 450. 34. Minquiers and Ecrehos case, supra note 28, at 53, 67, 72. 35. Id., at 71. 36. Western Sahara, Advisory Opinion of 16 October 1975, [1975] I.C.J. Rep. 12, 43 (quoting from Eastern Greenland case, supra note 23, at 46). 37. Id. (quoting from Minquiers and Ecrehos case, supra note 28, at 57). 38. Id., at 68. 39. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), [1992] I.C.J. Rep. 351, 606–609, para. 415–420 [herein after cited as Gulf of Fonseca case]. 40. Eritrea-Yemen Arbitration, 1998 Award, supra note 15. 41. Id., para. 239. 42. Gulf of Fonseca case, supra note 39, at 380–381, para. 29, and 558, para. 333. 43. Id., at 380–381, para. 29. 44. The Chamber quoted the "classic dictum" of Judge Huber in the Palmas Arbitration that "practice, as well as doctrine, recognizes—though under different legal formulae and with certain differences as to the conditions required—that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as a title." Id. at 563, para. 342 (quoting from Palmas Arbitration, supra note 11, at 839). The Chamber then went on to say with regard to the dispute before it: "Where the relevant administrative boundary was ill-defined or its position disputed, in the view of the Chamber the behaviour of the two newly independent States in the years following independence may well serve as a guide to where the boundary was, either in their shared view, or in the view acted on by one and acquiesced in by the other. …This aspect of the matter is of particular importance in relation to the status of the islands, by reason of their history". Id., at 565, para. 345. 45. Id., at 566, para. 347. 46. Id., at 566–570, para. 348–355. 47. Id., at 570, para. 356. 48. Id., at 570–579, para. 356–368. Honduras made one protest in 1991, but the Chamber viewed this effort as untimely. Id., at 575–577, para. 362–364. The Chamber also emphasized that Honduras should have protested a delimitation of the Gulf of Fonseca that had the effect of casting doubt on Honduras's claim of sovereignty over Meanguera. Id., at 577–578, para. 365–366. 49. Id., at 579, para. 368. 50. Eritrea-Yemen Arbitration, 1998 Award, supra note 15, at para. 450 (citing Minquiers and Ecrehos, supra note 28, at 47). 51. Id., para. 239. 52. Id., para. 451–452. 53. Id., para. 507–508. 54. Id., para. 509–524. 55. Id., para. 458. 56. Id. para. 472, 476–480 (citing, among other things, art. 6 of the 1923 Lausanne Peace Treaty, 28 L.N.T.S. 11 (1924), also published in 2 The Treaties of Peace 1919–1923, at 959 (Carnegie Endowment of Peace, 1924), to support the presumption that islands within territorial waters are under the same sovereignty as the nearby mainland). The Tribunal also included at the end of its opinion the enigmatic, but perhaps important, statement that "Western ideas of territorial sovereignty are strange to peoples brought up in the Islamic tradition and familiar with notions of territory very different from those recognized in contemporary international law." Id., para. 525. At another point (paragraph 446), the Tribunal said "there is the problem of the sheer anachronism of attempting to attribute to such a tribal, mountain and Muslim medieval society the modern Western concept of a sovereignty title, particularly with respect to uninhabited and barren islands used only occasionally by local, traditional fishermen." 57. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), [2002] I.C.J. Rep. 625, available on the Web site of the International Court of Justice at www.icj-cij.org. 58. Id., para. 14. 59. Id. 60. Id., para. 58, 72, 80, 92, 94, 96, 114, and 124. 61. Id., para. 126 (citing Frontier Dispute (Burkina Faso/Republic of Mali), [1986] I.C.J. Rep. 554, 587, para. 63; Territorial Dispute (Libyan Arab Jamahiriya/Chad), [1994] I.C.J. Rep. 38, para. 75–76; Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), [2002] I.C.J. Rep. 303, para. 68, available on the Web site of the International Court at www.icj-cij.org. 62. Id., para. 132. 63. Id., para. 134 (quoting from Eastern Greenland case, supra note 23, at 45–46). 64. Id. (quoting from Eastern Greenland case, supra note 23, at 45–46). 65. Id. (quoting from Eastern Greenland case, supra note 23, at 45–46). In this regard, the Court noted that it was significant that Indonesia's map of its archipelagic baselines "do [sic] not mention or indicate Ligitan and Sipadan as relevant base points or turning points." Id., para. 137. The Court also found significant that neither Indonesia nor its predecessor the Netherlands "ever expressed its disagreement or protest" regarding the construction of lighthouses on Ligitan and Sipadan in the early 1960s. Id., para. 148. 66. Id., para. 135. 67. Id., para. 140. 68. Yonhap News Agency, "South Korea Commissions New Patrol Boat for Disputed Isle Area," July 13, 2001. 69. Minquiers and Ecrehos case, supra note 28, at 69. 70. Id. 71. Id., at 59–60. See Tao Cheng, "The Sino-Japanese Dispute over the Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition," 14 Virginia Journal of International Law 221, 229 (1974). 72. Eastern Greenland case, supra note 23, at 45. 73. Palmas Arbitration, supra note 11, at 907. 74. Id., at 908. 75. Id., at 907. 76. Id., at 872. 77. Id., at 896. Other significant events between 1898 and 1906 are described id., at 907. "[E]vents subsequent to 1906 must in any case be ruled out." Id., at 906. 78. Sovereignty over Pulau Ligitan and Pulau Sipadan case, supra note 57, para. 135. 79. Treaty on Basic Relations between Korea and Japan, June 22, 1965, 583 U.N.T.S. 33. See infra text at notes 339–342. 80. Han Key Lee, "Korea's Territorial Rights to Tokdo in History and International Law," 29 Korea Observer 1, 89 (1998), translated and reprinted from Lee Han-key, in "Tokdo," in Han'guk ui Yongt'o [Korea's Territory] 227–303 (Seoul: Seoul National University Press, 1969). 81. See text at notes 339–342. 82. See, e.g., Han Key Lee, supra note 80, at 58. 83. See infra text at notes 142–230. 84. See Beautiful Island, Dokdo, supra note 1, at 68–69. 85. See Kazuo Hori, "Japan's Incorporation of Takeshima into Its Territory in 1905," 28 Korea Observer 477, 479 (1997), as revised from an earlier publication in Chosenshi Kenkyukai Ronbunshu [A Collection of Articles on Korean History], no. 24 (Tokyo: 1987) (noting that The Annals of the Kingdom of Silla were compiled in 1432 and formally published in 1454). See also Yong-Ha Shin, "A Historical Study of Korea's Title to Tokdo," 28 Korea Observer 333, 333 (1997) (citing Kim Pu-sik, compiler, Samguk Sagi [History of the Three Kingdoms] (1146), in 4 Silla pan 'gi [Annals of the Kingdom of Silla). 86. See Hoon Lee, "Dispute over Territorial Ownership of Tokdo in the Late Choson Period," 28 Korea Observer 389, 393 (1997) (quoting The Annals of the Kingdom of Silla, supra note 85, as saying: "In the 13th year of King Chi-jung, in the summer of June, Usan'guk was subjugated. Usan'guk is an island in the middle of the sea due east of Myongju, and it is called Ullungdo"). See also Yong-Ha Shin, supra note 85, at 333 (quoting the Annals of the Kingdom of Silla, which describes the invasion of Usan'guk and notes that Usan'guk consisted of an area of approximately 2.44 square miles). 87. See Yong-Ha Shin, supra note 85, at 334 (citing Man'gi yoram [Handbook of State Affairs], ed. Sim Sang-gyu et al. Seoul (1808) (stating that "Usando and Tokdo all belonged to Usan'guk [Ullungdo], and Usando is what Japanese call Matsushima"). 88. Yong-Ha Shin, supra note 85, at 334. 89. Hideki Kajimura, The Question of Takeshima/Todka, 28 Korea Observer 423, 442 (1997), reprinted from the original Japanese version in Chosen Kenkyu [Study of Korea], no. 182, Sept. 1978. 90. See text at notes 4–68. 91. See, e.g., Palmas Arbitration, supra note 11. 92. K. T. Chao, "East China Sea: Boundary Problems Relating to the Tiao-Yu-T'ai Islands," [1982] Chinese Yearbook of International Law and Affairs 45, 52 (citing Minquiers and Ecrehos case, supra note 28, at 47). 93. See, e.g., Hoon Lee, supra note 86, at 393. See also Yong-Ha Shin, supra note 85, at 334–335, Hori, supra note 85, at 484–485; and Kajimura, supra note 89, at 444 (noting that "[t]his policy was taken in 1416 and implemented in earnest in 1438" and continued until 1881). 94. See Hoon Lee, supra note 85, at 397–398 (citing The Annals of King T'aejong, 16th year, September, and The Annals of King T'aejong, 17th year, February) (describing how King T'aejong sent the Commissioner of Pacification to Ullungdo to bring back its inhabitants) and Choung Il Chee, Korean Perspectives on Ocean Law Issues for the 21st Century 6 (The Hague: Kluwer, 1999). 95. See Myung-Ki Kim, "A Study on Legal Aspects of Japan's Claim to Tokdo," 28 Korea Observer 359, 363 (1997) (citing Kuksa p'yongch'an wiwonhoe, Choson wangjo sillok [Annals of the Choson Dynasty] V, Sejong sillok [Annals of King Sejong] IV 680–81 (Seoul: 1956)). 96. See Hoon Lee, supra note 86, at 398 (noting that "from that time on, explorations and surveys on Ullungdo and Tokdo were conducted until the end of the Choson period even on an irregular basis, and that can be confirmed by the Annals of the Dynasty of Choson"). 97. See Yong-Ha Shin, supra note 85, at 336 (citing vol. 45, Section on Uljinhyon in Sinjung tongguk yoji sungnam [Revised and Augmented Survey of the Geography of Korea], ed. Yi Haeng (Seoul: 1531). 98. See Hoon Lee, supra note 86, at 398. 99. See Yong-Ha Shin, supra note 85, at 336 (citing Yi Ch'an, "Choson kojido eso bon tokdo," [Tokdo as Seen in the Old Korean Maps] in Ullungdo Tokdo haksul chosa yon'gu ([Academic Survey and Research on Ullungdo and Tokdo]) (Seoul: 1978)) (listing the three major maps, i.e., Tongguk chido [The Map of Korea] by Chong Sang-gi (1678–1752), Haejwa chondo of 1822, and Choson chondo [(A Complete Map of Korea)] by Kim Tae-gon (1821–46)). 100. Choung Il Chee, supra note 94, at 7 (citing Taijudo Kanae, Take Shima Funso, vol. 64, (Kokusaiho-gaiko-sashi (1966), at 112 [(in Japanese)]). 101. See Kajimura, supra note 89, at 13. 102. See Yong-Ha Shin, supra note 85, at 337 (citing Saito Hosen, "Onshu shicho goki" [Records on Observations in Oki Province], vol. I, in Kawakami Kenzo, Takeshima no rekishi chirigakuteki kenkyu [(A Historical and Geographical Study of Takeshima)] (Tokyo: 1966). 103. Id. 104. Id. 105. See Hoon Lee, supra note 86, at 400–418. 106. Id. 107. Id., at 417 (quoting an answer given by the Tsushima emissary to the Shogunate government regarding the status of Dokdo in the late 1690s, which says "We understand that it [Dokdo] is the island, together with Takeshima [Ullungdo], where Japanese are forbidden to fish, but it is difficult to answer that the injunction was so definitely made" (quoting from Tsushima Soka Kamonsho [So Family of Tsushima Records] no. 4751 kept in the library of NHCC) and Yong-Ha Shin, supra note 85, at 343 ("By 1699 the diplomatic notes had been exchanged and all the formalities had been cleared to recognize Korean title to Ullungdo and Tokdo.") (citing Japan, ed., Dajokan, Kobunrok, 1877: Naimusho no bu, Annexed Document no. 4 of the Genroku Era (1688–1704) (Official Documents 1877: The Ministry of Home Affairs, Tokyo, National Archives)). 108. See Kajimura, supra note 89, at 449–450 (noting that "the Japanese government did not state clearly whether or not Matsushima (Takeshima/Tok-Do Today) was covered in the injunction. That is why the two sides are continuing to exchange inconclusive notes, with the Korean side claiming that Takeshima/Tokdo was also included in the prohibition under the concept of treating Takeshima and Matsushima as one, while the Japanese side is asserting that no clearly-written ban was made for the island."). 109. Id. 110. Choung Il Chee, supra note 94, at 6. 111. Suh Myun Choe, "Tokdo in Old Maps," 29 Korea Observer 187, 193 (1998)). 112. See Yong-Ha Shin, supra note 85, at 344. 113. Id. This map is reproduced in Hongju Nah, supra note 2, at 21; and in Suh Myun Choe, supra note 111, at 194. 114. Hongju Nah, supra note 2, at 21 (referring to another map by Hayashi entitled Dainihonzu [(A Great Japan's Map)], and a map called Soezu [A Complete Illustrated Map]). 115. Suh Myun Choe, supra note 111, at 196–197. 116. See infra text at notes 200–207. 117. See infra text at notes 242–252. 118. Japan has sought to strengthen its claim by referring to pre-1905 contact since at least 1962, when its Ministry of Foreign Affairs issued an memorandum stating that "[t]he Japanese Government has made clear the position of its claim that Takeshima is Japan's inherent territory from olden times and is now reconfirming repeatedly that position." Myung-Ki Kim, supra note 95, at 361 (quoting from a memorandum dated July 13, 1962). 119. Japan, Ministry of Foreign Affairs, "The Issue of Takeshima" (March 2004), available at www.mofa.go.jp/region/asia-pacitakeshima/position.html (visited Aug. 25, 2004). 120. Id. 121. See, e.g., Yong-ho Ch'oe, "Sino-Korean Relations, 1866–1876: A Study of Korea's Tributary Relationship to China," 9 Journal of Asiatic Studies 131, 133–138 (1966) (discussing how the East Asian international order was based on the Confucian doctrine of societal relations, with China occupying the position of head of the family of East Asian nations and periphery states assuming the roles of junior members). 122. Id., at 131–132. 123. Id., at 135. 124. Id. 125. Id. (quoting William W. Rockhill, China's Intercourse with Korea from the XVth Century to 1895, at 4 (1905). 126. Id., at 136. 127. Id., at 137. 128. Ki-Baik Lee, A New History of Korea 262–263, trans. Edward W. Wagner and Edward J. Schultz (Ilchokak, 1984). 129. Id., at 264. 130. Id. 131. Id., at 264–266. 132. See, Lee T. Oei, "Japan's Annexation of Korea (1868–1910): An Exposition and Analysis of Japanese Perspective," 7 American Asian Review 49, 49 (1989). 133. Id. 134. Id., at 49–50. 135. Id. 136. Id., at 51. 137. See, e.g., Ki-Baik Lee, supra note 128, at 298–299. 138. Id., at 275. 139. Id., at 275–276. 140. See, C. I. Eugene Kim and Han-kyo Kim, Korea and the Politics of Imperialism 1876–1910, at 13–14 (University of California Press, 1967). 141. See, Ki-Baik Lee, supra note 128, at 268. 142. See, e.g., C. I. Eugene Kim and Han Kyo Kim, supra note 140, at 16–17. 143. See, e.g., Ki-Baik Lee, supra note 128, at 268. 144. Id., at 268–269. 145. Id., at 272. 146. Id., at 272–273. 147. Id., at 273–274. 148. Id., at 274. 149. See, Peter Duus, The Abacus and the Sword: The Japanese Penetration of Korea, 1895–1910, at 54 (University of California Press, 1995). 150. See, e.g., Ki-Baik Lee, supra note 128, at 275. 151. Id., at 275–276. 152. Id., at 277 (quoting Kim Ok-kyun, Kapsin illok [Journal of 1884] (n.p., n.d.)). 153. Id., at 278. 154. Id., at 279. 155. Id., at 279–280. 156. Id., at 280. 157. Id. 158. Id. 159. See, e.g., Duus, supra note 149, at 66. 160. Id., at 67. 161. See, e.g., Ki-Baik Lee, supra note 128, at 289. 162. Id., at 289–290. The 1895 Treaty of Shimonoseki is reprinted in C. Parry (ed.), The Consolidated Treaty Series, vol. 181, 217–224 (1979). 163. Id., at 290–292. 164. Id., at 306. 165. See, e.g., Seung Kwon Synn, The Russo-Japanese Rivalry over Korea, 1876–1904, at 291–292, (Yuk Phub Sa, 1981). 166. See, e.g., Ki-Baik Lee, supra note 128, at 307. 167. See, e.g., Seung Kwon Synn, supra note 165, at 318. 168. Id., at 341. 169. Id., at 341–343. See also Ki-Baik Lee, supra note 128, at 307. 170. See Harold Hak-won Sunoo, Korea: A Political History in Modern Times 187–188 (Korean-American Cultural Foundation and Kunkuk University Press, 1970) (quoting H. Chung, Korean Treaties 213 (1919)). See also Ki-Baik Lee, supra note 128, at 308. 171. See Ki-Baik Lee, supra note 128, at 308. 172. Han Key Lee, supra note 80, at 58. 173. See Harold Hak-won Sunoo, supra note 170, at 189–190 (quoting Chung, supra note 170, at 214). 174. Id. 175. See Ki-Baik Lee, supra note 128, at 308–309. 176. Id., at 308. 177. See Myung-Ki Kim, supra note 95, at 364. 178. See Kajimura, supra note 89, at 453–454. 179. See Myung-Ki Kim, supra note 95, at 364. 180. See Kajimura, supra note 89, at 453–454. 181. Id. The reluctance of the Japanese government to authorize their nationals to exploit the resources around the islands east of the Korean Peninsula in the late nineteenth century undercuts its argument in 1905 that the islet was terra nullius. A similar issue was addressed in the Minquiers and Ecrehos case, involving the request in 1784 by a French national for a concession in respect to the Minquiers group. France refused to grant the concession, and the Court noted that "the correspondence between the French authorities, relating to this matter, does not disclose anything which could support the present French claim to sovereignty, but it reveals certain fears of creating difficulties with the English Crown." Minquiers and Ecrehos, supra note 28, at 70 [emphasis added.] The Japanese officials may have harbored similar fears with regard to difficulties with Korea when they declined to grant concessions to their nationals. 182. Lee Keun-Gwan, "Preliminary Report on the Question of Neutrality in the Context of the Japanese Annexation of Korea and a New Methodological Approach to the Annexation Question 5" (paper presented at the Workshop on the 1905 Convention, Kookmin University, Seoul, Oct. 3, 2004) (citing Nihon gaiko monjo, vol. 3, Doc. no. 87 (Apr. 15, 1870) and Shin Yong-Ha, Korea's Territorial Rights to Tokdo: A Historical Study (Seoul: Tokdo yeongu bojeon hyeophoe [Tokto Research and Preservation Association], 1997), at 89–92). Shin Yong-Ha's cited study can be found at plaza.snu.ac.kr/∼ bigbear1/data3-1.htm, and this matter is discussed at 26–27. These events are also discussed in Hori, supra note 85, at 489–493, and in Myung Chul Hyun, "The Japanese Perception of Tokdo During the Opening of Ports," 29 Korea Observer 93, 103–109 (1998). 183. Lee Keun-Gwan, supra note 182 (citing Dajokan, Kobunroku (Mar. 20, 1877); and Shin Yong-Ha, supra note 182, at 99–100); Yong-Ha Shin, supra note 85, at 345–346; and Myung Chul Hyun, supra note 182, at 111–114. It is clear that the reference to "another island" is to Dokdo, because an attached document describes it as 80 nautical miles from Oki and as a place were "Trees and bamboo are scanty. Sea lions live there." Myung Chul Hyun, supra note 182, at 112–113. 184. Yong-Ha Shin, supra note 85, at 346 (referring to Chosen Jenzu [Complete Map of Korea] published by the Ministry of the Army in 1875 and Chosen Tokai Kaiganzu [Map of the Eastern Coast of Korea] published by the Hydrographic Bureau of the Ministry of the Navy in 1876). These maps were followed by another published by the Ministry of the Navy in 1886 called Chosen Suiroshi [Korean Sealanes], which also showed Dokdo in Korean territory. Id., at 347. 185. Hori, supra note 85, at 496. 186. Kajimura, supra note 89, at 453. 187. Id. 188. Id., at 454. See also Myung-Ki Kim, supra note 95, at 364. 189. Kajimura, supra note 89, at 454. See also Myung-Ki Kim, supra note 95, at 364 (citing Park Kwan-sook, "Tokdo ui popchok chiwi" [The Legal Status of Tokdo], Korean Journal of International Law 34 (1956)). 190. Kajimura, supra note 89, at 454. 191. Id. (citing Yi Kyu-won's report, published by Korea Public Information Co. (1965)). 192. Yong-Ha Shin, supra note 85, at 349. 193. Id. Another commentator has written that: "According to an early investigation by the Japanese government, some 200 Japanese were staying at Ullungdo about the year 1900, and the number rose to over 1,000 depending on the season." Hori, supra note 85, at 499. 194. Yong-Ha Shin, supra note 85, at 349. 195. See Hori, supra note 85, at 511–512; and Yong-Ha Shin, supra note 85, at 351. 196. Hori, supra note 85, at 514. 197. Id., at 513 (citing Gunkan tsushima senji nisshi [The Logbook of Warship Tsushima During the War] (kept in the Self-Defense Agency War History Department)). 198. Id. 199. Id., at 514. 200. Id.; and Yong-Ha Shin, supra note 85, at 351. 201. Han Key Lee, supra note 80, at 36 (quoting from Nakai Yozaburo's application, which was reprinted in Kawakami Kenzo, Takeshima No Rekishi Chiragakuteki Kenkyu [Historical and Geographical Study of Takeshima] 209–211 (Tokyo: Kinkoshoten, 1966)). 202. Yong-Ha Shin, supra note 85, at 352 (quoting from the minutes of the Japanese cabinet meeting of Jan. 28, 1905). 203. Hori, supra note 85, at 519–520; and Yong-Ha Shin, supra note 85, at 352. See also Myung-Ki Kim, supra note 95, at 364. 204. Hori, supra note 85, at 520. 205. Id. 206. Id., at 523 (quoting from Taehan Maeil Shinbo [Korea Daily News], May 1, 1906). 207. Id., at 522 (citing "Local Ullungdo Report to the Home Ministry," Hwangsong sinmun [Capital Gazette] (Seoul), May 9, 1906)). 208. The Treaty of Portsmouth, Sept. 5, 1905, Japan-Russia, reprinted in Parry, supra note 162, vol. 199, at 144. 209. Id., art. 3. 210. Id., art. 2. 211. Han Key Lee, supra note 80, at 42. 212. See, e.g., Ki-Baik Lee, supra note 128, at 309. 213. See Harold Hak-won Sunoo, supra note 170, at 196–197 (quoting Tyler Dennett, Roosevelt and the Russo-Japanese War 110 (2d ed. 1925)). 214. Id., at 195 (quoting from J. V. A. MacMurray, Treaties and Agreement with and Concerning China, 1894–1919 516 (1921)). 215. Id. 216. Id. 217. See Ki-Baik Lee, supra note 128, at 310. 218. See Harold Hak-won Sunoo, supra note 170, at 200 (quoting MacMurray, supra note 214, at 516). 219. Yong-Ha Shin, supra note 85, at 354. 220. See Ki-Baik Lee, supra note 128, at 310–311. 221. Yong-Ha Shin, supra note 85, at 355 (referring to Directive no. III, Apr. 29, 1906). Korean newspapers and commentators also denounced this move. Id., at 355–356. 222. See Harold Hak-won Sunoo, supra note 170, at 200. 223. See Ki-Baik Lee, supra note 128, at 311. 224. See Harold Hak-won Sunoo, supra not
Referência(s)