Analysis of the Territorial Issue regarding the Liancourt Rocks between Korea and Japan

Abstract

In this Article, the “three-staged judicial review” found in the reasoning of territorial arbitral awards of the International Arbitral Tribunal and decisions of the Permanent Court of International Justice and the International Court of Justice, was discussed. The Tribunal and Court have attributed the utmost priority to boundary treaties (in most cases, concluded between two imperial nations in the past), peace treaties, uti possidetis juris, and an adjudicative award in adjudicating the sovereign matter. Conversely, a chain-of-title through cession and succession from ancient times is of no value. In the absence of any legal title, then effectivités is taken into consideration. One of the rationales behind the reasoning was that the principle of stability of boundaries is of such importance that it may defeat other principles of international law, e.g., even jus cogens. It is, however, suspected that contemporary reasoning demonstrates bias toward maintaining past colonial rule under the guise of the stability of boundaries. Domestic property law and economics approach also explains that a state with written title (based on boundary treaties, peace treaties, the principle of uti possidetis, and arbitral awards) and a state with effectivités are more likely to be considered to have control over territory in issue than a state with original ownership. As to the issue of the Liancourt Rocks, Japan claims that it will be necessary for Korea and Japan to diplomatically negotiate to refer the matter to the Tribunal or the Court. However, Korea does not feel the need to agree on referring the matter to the International Judicial Body. The first reason for Korea’s attitude is that Korea already physically occupied the island with its police force. The second reason is that Japan has a choice, either to take the island back with direct confrontation or to accept the loss and leave Korea’s sovereignty alone, that the Liancourt Rocks has of little value to Japan, compared to other territories disputed between Japan and its neighboring states, and therefore, that it is almost impossible to imagine that Japan would dare to choose direct confrontation. There are likely to be many more reasons for leaving Korea’s sovereignty over the Liancourt Rocks alone than for initiating military operation over the small island. The third reason is that, although Korea is more likely to win the case given the reasoning and its three rationales above mentioned, Korea’s ownership of this island would become a fait accompli without taking unnecessary risk of deferring the sovereign matter of critical national interest to the third judicial body.