Dokdo in International Law and Treaties
Dokdo in International Law and Treaties: A Comprehensive Legal Analysis
The legal status of Dokdo under international law represents one of the most complex territorial questions in East Asian maritime disputes. Understanding this issue requires careful examination of post-World War II treaties, Supreme Commander for the Allied Powers directives, modern maritime law conventions, and fundamental principles of territorial sovereignty. This comprehensive analysis explores how international law and treaties address Dokdo's status, providing clarity on the legal frameworks that govern this territorial question.
Table of Contents
SCAPIN Directives and Post-War Administration
The Supreme Commander for the Allied Powers Instruction Notes, commonly known as SCAPIN directives, played a crucial role in defining Japan's territorial boundaries following World War II. These administrative orders, issued by General Douglas MacArthur's headquarters, governed Japan during the Allied occupation period and established the framework for post-war territorial arrangements.
SCAPIN No. 677, issued on January 29, 1946, bears particular significance for the Dokdo question. Titled "Governmental and Administrative Separation of Certain Outlying Areas from Japan," this directive explicitly excluded Dokdo (referred to as "Liancourt Rocks" using the Western name) from Japanese administrative authority. The document stated that for purposes of the directive, Japan was defined to exclude, among other territories, "Liancourt Rocks (Take Island)." This exclusion placed Dokdo under the jurisdiction of the United States military government in Korea.
The legal weight of SCAPIN 677 has been debated by scholars and officials. While Japan argues that SCAPIN directives were merely administrative measures that did not determine final territorial sovereignty, this interpretation overlooks the directives' practical significance. SCAPIN 677 reflected the Allied Powers' understanding of which territories rightfully belonged to Japan and which had been acquired through imperial expansion. The directive's explicit exclusion of Dokdo from Japanese authority demonstrates the Allies' recognition that the islands were not inherent Japanese territory.
SCAPIN Timeline:
January 29, 1946: SCAPIN 677 issued, excluding Dokdo from Japanese administrative authority
June 22, 1946: SCAPIN 1033 issued, defining areas where Japanese vessels could operate—Dokdo remained outside Japanese fishing and whaling zones
September 16, 1947: SCAPIN 1778 confirmed previous directives, maintaining Dokdo's separation from Japanese administration
SCAPIN No. 1033, issued on June 22, 1946, further reinforced this separation by defining the areas where Japanese fishing and whaling vessels could operate. This directive established a "MacArthur Line" that placed Dokdo outside the zone accessible to Japanese vessels, effectively recognizing Korean authority over the waters surrounding the islands. For several years following the war, this administrative arrangement governed practical sovereignty over Dokdo, with Korea exercising control and Japan excluded from the area.
The San Francisco Peace Treaty of 1951
The Treaty of Peace with Japan, signed in San Francisco on September 8, 1951, officially ended the state of war between Japan and most Allied Powers. This treaty addressed numerous territorial questions arising from Japan's defeat and colonial empire's dissolution. Article 2 of the treaty required Japan to renounce all claims to territories acquired through expansion, including Korea and various Pacific islands.
The treaty's treatment of Dokdo has generated considerable controversy and differing interpretations. Article 2(a) states: "Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet." The treaty specifically named three Korean islands (Jejudo, Geomundo, and Ulleungdo using their Western names) but did not explicitly mention Dokdo by any of its various names.
Japan has argued that Dokdo's omission from the list of renounced territories means the islands remained Japanese territory. However, this interpretation fails to account for several crucial factors. First, the treaty could not possibly enumerate every single island associated with Korea—the three islands mentioned were examples of major Korean territories, not an exhaustive list. Second, the treaty's purpose was to strip Japan of territories acquired through imperial expansion, and Japan's 1905 incorporation of Dokdo occurred during this expansionist period.
Legal Context: The San Francisco Treaty was negotiated primarily by the United States and signed by 48 nations, but notably excluded key regional powers including South Korea, North Korea, China, and the Soviet Union, limiting its comprehensive authority over all territorial questions in the region.
Draft versions of the treaty provide important insights into the Allies' intentions. Early American drafts from 1947-1949 explicitly listed Dokdo among territories Japan would renounce. However, as Cold War tensions intensified and American strategic priorities shifted toward strengthening Japan as a regional ally, the treaty's language became less specific about various minor islands. The removal of explicit mention should be understood in this geopolitical context rather than as a determination that Dokdo belonged to Japan.
Furthermore, the Rusk Note—a diplomatic communication from U.S. Assistant Secretary of State Dean Rusk to the Korean Ambassador in 1951—stated that Dokdo had never been treated as part of Korea and recommended against including it in the list of islands Japan should renounce. However, this diplomatic note was not part of the treaty itself and represented one official's opinion during treaty negotiations rather than international law. Moreover, the note contained factual errors about Dokdo's history and contradicted earlier SCAPIN directives.
Korea's position maintains that regardless of specific enumeration, the San Francisco Treaty's fundamental purpose was to eliminate the territorial fruits of Japanese imperialism. Since Japan incorporated Dokdo in 1905 during its colonial expansion and just five years before annexing Korea entirely, the islands logically fall within the territories Japan should have renounced. The treaty's general language about renouncing Korea and its islands, combined with SCAPIN precedents, supports this interpretation.
UNCLOS and Modern Maritime Law
The United Nations Convention on the Law of the Sea, adopted in 1982 and entered into force in 1994, established comprehensive legal frameworks for maritime zones and territorial waters. While UNCLOS does not resolve existing territorial disputes, it provides important context for understanding the stakes involved in the Dokdo question and the legal principles applicable to island territories.
Under UNCLOS Article 121, islands are defined as naturally formed areas of land surrounded by water that remain above water at high tide. Qualifying islands generate maritime zones including a 12-nautical-mile territorial sea and potentially a 200-nautical-mile exclusive economic zone (EEZ). Dokdo, consisting of two main islets and dozens of smaller rocks, qualifies as islands under this definition, though questions exist about whether it could generate a full EEZ given its small size and limited habitability.
The sovereignty question becomes crucial because the controlling state gains rights to valuable maritime zones surrounding the islands. The waters around Dokdo contain rich fishing grounds and potentially significant underwater resources. Additionally, the islands' location in the East Sea makes them strategically important for maritime navigation and security. UNCLOS establishes that sovereignty over land territory determines rights to adjacent maritime zones, making the territorial question the foundation for all subsequent maritime claims.
Maritime Zones: If Dokdo generates a full EEZ, the controlling nation would have sovereign rights over approximately 125,000 square kilometers of ocean for resource exploration and exploitation, fisheries management, and environmental protection—an area roughly equivalent to the size of North Korea.
Korea's continuous administration of Dokdo since 1945 carries legal significance under UNCLOS principles. The convention recognizes that effective occupation and administration constitute important factors in establishing territorial sovereignty. Korea's installation of lighthouse facilities, deployment of maritime police, regulation of fishing activities, and environmental protection measures all demonstrate the exercise of sovereign authority recognized in international maritime law.
UNCLOS also addresses maritime boundary delimitation between states with opposite or adjacent coasts. Article 74 requires states to achieve equitable solutions through agreement, taking into account relevant circumstances. In the East Sea context, even if Japan claimed Dokdo, the islands' small size and location would likely result in limited maritime zones under equitable delimitation principles. International Court of Justice cases have established that small islands do not always receive full maritime zones when this would create disproportionate results.
The convention's dispute resolution mechanisms theoretically could address the Dokdo question, as UNCLOS provides for compulsory dispute settlement in certain circumstances. However, the convention allows states to exclude certain categories of disputes, including those concerning maritime boundaries and historic titles. Both Korea and Japan have made declarations limiting compulsory jurisdiction, effectively requiring mutual consent for any UNCLOS-based dispute resolution regarding Dokdo.
Legal Principles of Territorial Sovereignty
International law has developed numerous principles for evaluating territorial sovereignty claims, drawn from centuries of state practice, judicial decisions, and scholarly analysis. These principles provide frameworks for assessing competing claims to territory and understanding how sovereignty is acquired, maintained, and recognized under international law. Several principles bear particular relevance to the Dokdo situation.
The principle of effective occupation or "effectivités" represents one of the most important concepts in territorial sovereignty. This principle recognizes that actual exercise of state authority over territory—including administration, regulation, and enforcement—strengthens sovereignty claims. Since 1945, Korea has continuously and peacefully administered Dokdo, maintaining maritime police presence, operating lighthouse facilities, regulating fishing and tourism, and enforcing Korean law throughout the area. This uninterrupted administration for nearly eight decades constitutes powerful evidence of effective sovereignty under international law.
The doctrine of acquisitive prescription holds that continuous, peaceful, and open exercise of sovereignty over disputed territory can eventually perfect a legal claim, even if the initial claim was questionable. This principle recognizes practical reality and international stability. Korea's administration of Dokdo since 1945, conducted openly and without effective challenge (diplomatic protests do not constitute effective challenge under this doctrine), creates a strong prescriptive claim. The passage of time strengthens this claim, as the international community has effectively acquiesced to Korean control for generations.
Key Legal Principles Applied to Dokdo:
Effective Occupation: Korea's continuous administration since 1945
Acquisitive Prescription: Nearly 80 years of peaceful, open control
Geographical Proximity: 87km from Korean territory vs. 157km from Japanese territory
Historical Consolidation: Centuries of Korean recognition and use
Post-Colonial Justice: Rejection of territorial gains from imperial expansion
The principle of historical consolidation of title recognizes that long-standing territorial arrangements, even if originally based on unclear legal foundations, can become legitimate through prolonged acceptance by the international community. This principle values stability and discourages disruption of long-established territorial control. Korea's administration of Dokdo, combined with the international community's general acceptance of this arrangement, supports historical consolidation of Korean sovereignty.
Geographical proximity, while not determinative alone, serves as a relevant factor in territorial disputes, particularly regarding small islands or maritime features. International tribunals have considered proximity when evaluating which state has closer natural connections to disputed territory. Dokdo's location significantly closer to Korean territory than to Japanese territory (87 kilometers versus 157 kilometers) supports Korea's claim, especially when combined with centuries of Korean use and recognition.
The principle of critical date in territorial disputes holds that sovereignty should be determined based on circumstances existing when the dispute crystallized, not on subsequent developments. For Dokdo, identifying the critical date remains contentious—whether 1905 (Japanese incorporation), 1945 (end of World War II), 1952 (Korea's establishment of the Peace Line), or another date. However, under any reasonable critical date analysis, Korea's historical claims and post-1945 administration support its sovereignty position.
International Court Jurisdiction and Dispute Resolution
The International Court of Justice, the principal judicial organ of the United Nations, has jurisdiction to resolve territorial disputes between states. However, ICJ jurisdiction requires the consent of all parties to the dispute. Japan has repeatedly proposed bringing the Dokdo question to the ICJ, while Korea has consistently declined, maintaining that no dispute exists because Dokdo is indisputably Korean territory.
Korea's refusal to accept ICJ jurisdiction reflects several considerations. First, Korea views Dokdo as sovereign territory with clear historical and legal foundations, making adjudication unnecessary and potentially legitimizing unfounded Japanese claims. Second, Korea's effective control and administration of Dokdo means it has nothing to gain and potentially much to lose from litigation. Third, historical experience with Western powers during the colonial era creates skepticism about international judicial processes, particularly given that ICJ judges might lack deep understanding of East Asian historical contexts.
Japan's willingness to pursue ICJ adjudication might seem to suggest confidence in its legal position, but alternative explanations exist. From Japan's perspective, even proposing ICJ jurisdiction serves diplomatic purposes by portraying the issue as a genuine legal dispute rather than attempted reversal of post-colonial territorial arrangements. Additionally, Japan has less to lose from adjudication since it currently does not control the islands—an ICJ decision in Korea's favor would merely confirm the status quo, while a Japanese victory would represent a significant gain.
ICJ Precedent: In similar island disputes like Pedra Branca (Malaysia v. Singapore) and Territorial and Maritime Dispute (Nicaragua v. Colombia), the ICJ heavily weighted effective administration and continuous exercise of sovereignty, principles that strongly favor Korea's position on Dokdo.
Examining ICJ precedents in territorial disputes provides insights into how the Court might approach the Dokdo question if it acquired jurisdiction. In the Island of Palmas case (1928), the arbitrator emphasized that continuous and peaceful display of sovereignty matters more than ancient discovery or historical claims. This principle would favor Korea given its uninterrupted administration since 1945. In the Minquiers and Ecrehos case (1953), the ICJ awarded disputed islands to the United Kingdom based on evidence of administrative control and regulation, even though France had some historical claims—again suggesting Korean administration would carry significant weight.
The Temple of Preah Vihear case (Cambodia v. Thailand, 1962) established that maps and international recognition of boundaries create legitimate expectations that should be respected. SCAPIN directives and various post-war documents excluding Dokdo from Japanese authority could serve as comparable evidence of international recognition. Furthermore, in the Territorial and Maritime Dispute between Nicaragua and Colombia (2012), the ICJ awarded islands based on effective administration despite geographical proximity favoring the other party, though the Court noted that geography remained a relevant consideration.
Alternative dispute resolution mechanisms exist beyond ICJ adjudication, including arbitration under the Permanent Court of Arbitration or negotiated settlements. However, any resolution mechanism requires mutual consent, and the current situation—with Korea maintaining stable, peaceful control—provides little incentive for Korea to risk its position through third-party adjudication. From an international legal perspective, Korea's position that Dokdo is settled territory rather than disputed territory is defensible given the length and effectiveness of its administration.
Frequently Asked Questions About Dokdo and International Law
What is the legal significance of SCAPIN 677?
SCAPIN 677, issued by the Supreme Commander for the Allied Powers on January 29, 1946, explicitly excluded Dokdo from Japanese administrative authority and placed it under the U.S. military government in Korea. While Japan argues these directives were merely administrative and not determinative of final sovereignty, SCAPIN 677 reflected the Allied Powers' understanding of Japan's legitimate territorial boundaries. The directive's exclusion of Dokdo from Japanese authority demonstrates that the Allies recognized the islands were not inherent Japanese territory but rather had been acquired during imperial expansion.
Did the San Francisco Peace Treaty resolve the Dokdo question?
The San Francisco Peace Treaty of 1951 required Japan to renounce all territories acquired through imperial expansion, but did not explicitly mention Dokdo by name. This omission has led to differing interpretations. Korea maintains that Dokdo logically falls within the territories Japan should renounce since it was incorporated in 1905 during Japan's colonial expansion period. Japan argues the omission means Dokdo remained Japanese territory. However, the treaty could not enumerate every island, and its fundamental purpose was to eliminate territorial fruits of Japanese imperialism, which supports Korea's interpretation when combined with SCAPIN precedents.
Why doesn't Korea accept Japan's proposal for ICJ adjudication?
Korea maintains that Dokdo is indisputably Korean territory with clear historical and legal foundations, making international adjudication unnecessary. Korea's position is that accepting ICJ jurisdiction would legitimize unfounded Japanese claims by treating them as a genuine legal dispute rather than an attempt to reverse post-colonial territorial arrangements. Furthermore, Korea's effective control and continuous administration for nearly 80 years means it has nothing to gain and potentially much to lose from litigation. This position is legally defensible—states are not required to submit their sovereign territory to international adjudication.
How does UNCLOS apply to the Dokdo dispute?
The UN Convention on the Law of the Sea establishes that islands generate maritime zones including territorial seas and potentially exclusive economic zones. However, UNCLOS does not resolve existing territorial disputes—sovereignty over land territory must be determined first, then maritime zones follow. Korea's continuous administration of Dokdo since 1945 carries legal significance under UNCLOS principles of effective occupation. The convention's dispute resolution mechanisms could theoretically address the question, but both Korea and Japan have made declarations limiting compulsory jurisdiction, requiring mutual consent for any UNCLOS-based dispute resolution.
What legal principles support Korea's sovereignty over Dokdo?
Multiple international legal principles support Korea's position. Effective occupation (effectivités) recognizes Korea's continuous administration since 1945. Acquisitive prescription acknowledges that nearly 80 years of peaceful, open control strengthens sovereignty claims. Geographical proximity favors Korea (87km from Korean territory vs. 157km from Japanese territory). Historical consolidation recognizes that long-standing territorial arrangements gain legitimacy through international acceptance. Post-colonial justice principles support rejecting territorial claims based on imperial expansion. Combined, these principles create a strong legal foundation for Korean sovereignty.
Have any international courts ruled on similar island disputes?
Yes, the ICJ has decided several island sovereignty cases that provide relevant precedents. In the Minquiers and Ecrehos case (1953), the Court awarded islands based on evidence of administrative control. In Pedra Branca (2008), the Court emphasized effective administration over historical claims. In the Nicaragua v. Colombia case (2012), the ICJ considered both geographical proximity and effective control. These precedents suggest that if the Dokdo case reached the ICJ, the Court would heavily weight Korea's continuous administration since 1945, though geographical and historical factors would also be considered. The cases demonstrate that effective occupation carries significant legal weight in modern territorial disputes.
The international legal framework surrounding Dokdo, while complex, ultimately supports Korea's position through multiple reinforcing principles. SCAPIN directives excluded Dokdo from Japanese authority after World War II. The San Francisco Treaty's purpose was to eliminate territorial fruits of Japanese imperialism. UNCLOS principles recognize the legal significance of Korea's continuous administration. Fundamental principles of effective occupation, acquisitive prescription, and historical consolidation all favor Korea's sovereignty claim. While diplomatic disputes continue, the weight of international law and treaty interpretation supports the conclusion that Dokdo rightfully belongs to Korea as both a matter of historical justice and contemporary legal reality.
