Korea's Dokdo sovereignty and San Francisco Peace Treaty

By Doh See-hwan

This year marks the 70th anniversary of the entry into force of the San Francisco Peace Treaty. Forty-eight allied powers, including the United States, the victor of World War II, and Japan, the defeated country, signed the treaty in 1951 to clear up responsibility for the Asia-Pacific War and establish a peace regime in East Asia.

However, at the time of the signing of the treaty, it was intended to settle Japan's war responsibilities, but on the other hand, it received a contradictory evaluation as a treaty to build a Cold War regime in East Asia.

It is because Japan, which is paradoxically the biggest beneficiary even though it is a perpetrator, is causing territorial conflicts that run counter to the East Asian peace community, presupposing the San Francisco Peace Treaty, which is evaluated as an unprecedented “generous peace treaty” as its stance has shifted from a punitive treaty to an anti-communist treaty due to the rise of the Cold War regime.

On that premise, it is worth noting that the Japanese government and Japanese society of international law are re-summoning the doctrine of terra nullius through the San Francisco Peace Treaty, because it was impossible to establish Japan's historical title to Korea's sovereignty over Dokdo recognized by the Edo Shogunate's prohibition of the crossing the seas of 1696 and the Dajokan directive of state in 1877, since the Ulleung Island dispute that began after the capture of An Yong-bok in 1693.

Thus, it is an important task to identify the essential problem of legal distortion inherent in the research of the title of the Japanese society of international law that has been building the policy basis of the Japanese government's claim to Dokdo, as the essence of violence and greed declared in the Cairo Declaration in the process of establishing the San Francisco Peace Treaty.

The most important decisions in the territorial policy toward Japan implemented by the Allied powers in wartime were the Cairo Declaration of 1943 and the Potsdam Declaration of 1945. The Cairo Declaration is a document of basic principle in the territorial policy of the Allied Powers and has been cited as the provisions of Article 8 of the Potsdam Declaration, thus establishing itself as the official territorial policy of the Allied Powers. The declaration consisted of deportation from all areas that Japan had taken by violence and greed, and liberation and independence of Korea at the appropriate time.

The Potsdam Declaration specified the territory of postwar Japan through the succession of the Cairo Declaration, and it became the basic principle of the Allies' agreement at the end of the war by determining the demand for surrender to Japan and the treatment principle for postwar Japan. Article 8, which defines the implementation of the Cairo Declaration and the territory of Japan, was specific that Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands determined by the Allies.

Under the policy of separating Dokdo from Japan after World War II until the San Francisco Peace Treaty entered into force, the Allied Powers General Headquarters defined Dokdo as an area excluded from Japan's rule throughout the allied occupation of Japan through the Supreme Commander for the Allied Powers Instruction Notes (SCAPIN) 677 (Jan. 29, 1946) and SCAPIN 1033 (June 22, 1946).

Along with this continuation, Dokdo was specified as Korean territory until the fifth draft of the San Francisco Peace Treaty. By the way, Dokdo was changed to Japanese territory in the sixth draft due to lobbying through a telegram (Nov. 14, 1949) and written opinion (Nov. 19, 1949) of William J. Sebald, a political adviser to Japan. However, in the final draft after the seventh draft, Dokdo was omitted from the text of the treaty without being mentioned specifically.

Regarding the research of the treaty-based title of the Japanese society of international law on the San Francisco Peace Treaty, I reviewed the problems of distortions on the legal principles of international law as follows.

First, in relation to SCAPIN 677, paragraph 6, which stipulates that it is not the ultimate determination of the minor islands, Japanese international law scholars argue for the nullification of SCAPIN by the San Francisco Peace Treaty. However, paragraph 6, the exclusion clause, should be interpreted in connection with paragraph 5 as an exemplary provision. Paragraph 5 stipulates that unless the territory of Japan is specified separately in all orders to be issued by the headquarters, the territorial scope of Japan shall continue to be effective.

Second, Sebald's proposal through lobbying was as follows. “In view of security, establishing a weather and radar base on Dokdo is a matter of interest to the United States,” he said. In accordance with the interests of Japan and the United States, in the sixth draft, Dokdo was designated temporarily as Japanese territory. In the end, the Dokdo notation itself disappeared. Sebald's lobby also ended in failure. It is worth noting that Dokdo was marked as the territory of Korea in “the reference map of the Japanese territory” of the Japan National Maritime Security Agency in August 1951, which was produced on this premise.

Third, regarding the Rusk letter, which was not released to Japan in 1951, it is necessary to pay attention to re-summoning the doctrine of terra nullius on Dokdo in 1905 based on false information provided by Japan, in addition to its utilization of the changes in the international situation caused by the rise of the Cold War, as can be seen from the temporary change in U.S. policy due to Sebald's lobby.

Meanwhile, in relation to the claim that Dokdo became Japanese territory before Japan's forced annexation of Korea, it is necessary to pay attention to the invasion of Dokdo and the coercion of the treaty, which are illegal and invalid under international law, starting from the occupation of Jinhae Bay and Masan City on Feb. 6, 1904, an invasion of the Korean Empire, which declared wartime neutrality on Jan. 21, 1904.

Therefore, Japan's claim to Dokdo, lacking legality and legitimacy under international law put forth by Japan, as the essence of violence and greed of ongoing Japanese colonialism, is a serious violation of Korea's territorial sovereignty. It will be our task today on the 70th anniversary of the San Francisco Peace Treaty to build a basis for a true East Asian peace community through historical reflection and international legal justice.

Dr. Doh See-hwan (drdoh@naver.com) is a senior research fellow at the Northeast Asian History Foundation.