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  Final Solution for Dokdo Dispute

By Roger C. S. Lin, Richard W. Hartzell

International treaty law and the laws of war offer a creative solution to the dispute between Korea and Japan over the Dokdo Islets.

In dealing with territorial disputes within geographic areas covered by the 1952 San Francisco Peace Treaty (SFPT), a problem arises: How are we to interpret ownership of islands given up by Japan when no "receiving country" is specified and some islands are not specifically mentioned?

In the parlance of international law, territorial cessions where no "receiving country" is specified may be called "limbo cessions" and territory not clearly and specifically dealt with may be called "un-demarcated territory."

The SFPT was written within the framework of the laws of war -- often called "the customary laws of warfare." Within its own geographic scope, it is the highest-ranking document of international law in the post-World War II era. Obviously, the SFPT is still in effect up to the present day, and there is a methodology for determining how disputes over "territorial sovereignty" can be resolved under such a treaty structure.

In the pre-Napoleonic period, conquest and annexation were commonly viewed as an accepted method of territorial acquisition. However, after the Napoleonic Wars, international law underwent a transformation with "annexation" no longer permitted.

In the modern era, conquest must be followed by military occupation. The 1907 Hague Regulations specify, "Territory is considered occupied when it is actually placed under the authority of the hostile army."

Legal relationships do not arise from a consideration of which army accepted the surrender of what other army, or which military troops were victorious in what particular battle, or what the composition of the Allies was at any particular point in time, or what intentions were stated in the surrender documents or other pre-surrender proclamations about the future disposition of territory.

Legal relationships arise from a consideration of "Who is the occupying power?" In the post-Napoleonic era, this goes back to a determination of "Who is the conqueror?"

Importantly, the terminology of the occupying power is used with only some minor variations in all relevant conventions and treaties which dictate international norms regarding the disposition of persons and property in areas under military occupation.

For example, while the Geneva Conventions generally refer to the occupying power, The Hague Conventions often speak of the occupying state. However, in dealing with military occupation matters, the "law of agency" is always available.

When the administrative authority for the military occupation of particular areas is delegated to other troops, the terminology of the principal occupying power is most commonly seen, and a "principal-agent" relationship is in effect.

After Pearl Harbor, U.S. Congress declared war against Japan on Dec. 8, 1941. United States military forces conducted all military attacks against the four main Japanese islands, so it can be held that the United States is the "conqueror" of Japan and her overseas territories.

In other words, the United States has "acquired" these areas under the principle of conquest, and the disposition thereof must be conducted according to the laws of war.

General Order No. 1 was issued on Sept. 2, 1945. President Harry Truman approved this Order before its promulgation, the United States is the "conqueror" of Japan and her overseas territories, and General MacArthur is the head of the United States military forces. Hence, the strongest presumption would be that the United States is the principal occupying power. Importantly, Article 23 of the SFPT fully confirms this.

Military occupation is conducted under a military government. For territorial cessions and un-demarcated territory, it is important to realize the military government of the principal occupying power does not end with the coming into force of the peace treaty. This can be seen through an overview of the military history of the Philippines, Guam, and Puerto Rico, and Cuba after the Spanish American War.

Dokdo was territory included in, and/or adjunct to, the areas "acquired" by the United States, and thus under the jurisdiction of U.S. military authorities. As un-demarcated territory under the terms of the treaty, at the present time Dokdo is still subject to the jurisdiction of the United States Military Government (USMG).

Although Dokdo has no native population, there are Korean troops there now. Under the SFPT, these personnel would be considered a subordinate occupying power. This is "agency." USMG is the principal. The Korean troops are the agent.

The territorial clause of the U.S. Constitution says: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...."

Hence, under the provisions of the SFPT for limbo cessions such as the Kuriles, Spratly Islands, and Taiwan or for un-demarcated territory, it is clear that title to the territory escheats to "the conqueror," which in the post-Napoleonic period is "the principal occupying power."

This is ownership in the sense of "having legal right to," or "having title to," however, it is more properly delineated as a kind of "quasi-trusteeship."

Hence, Korean government officials should be petitioning the U.S. Congress to make final disposition of this "property" held under USMG, and subject to the jurisdiction of the U.S. Congress under the territorial clause of the U.S. Constitution.

A somewhat similar analysis can be done for the SFPT's limbo cessions.

Japanese government officials should petition the U.S. Congress to make a determination of the "civil rights and political status" of the inhabitants of the Kuriles Islands.

In this way, Dokdo can be awarded to Korea, and the dispute over the Kuriles Islands can be resolved in favor of Japan. Of course, responsibility for the implementation of such decisions would rest with the U.S. commander in chief.

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The authors are researchers in territorial cession law, international treaty law, and the laws of war.


06-06-2006 16:39

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