Comprehensive issues

５　Request for Revisions from the ROK Government and US Denial

　On July 19, 1951, Korean Ambassador to the US You Chan Yang visited Dulles and handed him a document addressed to US Secretary of State Dean G. Acheson requesting changes to the revised US–UK draft, as ordered by his government. Specifically, the ROK government requested that the word “renounces” in Article 2 Paragraph (a) should be replaced by “confirms that it renounced on August 9, 1945, all right, title and claim to Korea and the islands which were part of Korea prior to its annexation by Japan, including the islands Quelpart, Port Hamilton, Dagelet, Dokdo and Parangdo.”¹⁶

　US Assistant Secretary of State Dean Rusk responded to this on behalf of the Secretary of State in a note dated August 10, 1951 which declined the ROK request as follows. “The United States Government regrets that it is unable to concur in this proposed amendment. The United States Government does not feel that the Treaty should adopt the theory that Japan’s acceptance of the Potsdam Declaration on August 9, 1945 constituted a formal or final renunciation of sovereignty by Japan over the areas dealt with in the Declaration. As regards the island of Dokdo, otherwise known as Takeshima or Liancourt Rocks, this normally uninhabited rock formation was according to our information never treated as part of Korea and, since about 1905, has been under the jurisdiction of the Oki Islands Branch Office of Shimane Prefecture of Japan. The island does not appear ever before to have been claimed by Korea.”¹⁷

　The provision in the revised US–UK draft was adopted as Article 2 (a) unchanged, and this determined that Takeshima’s status as Japanese territory remained unchanged after the war as well.

６　Present ROK Claims and Their Propriety

　Although the above are historical facts, and fundamentally cannot be refuted, the ROK has recently been making the following type of claim.¹⁸

　The General Headquarters applied SCAPIN-677 (January 29, 1946), which provides that Dokdo, along with Ulleungdo, belongs to the area that is excluded from Japan’s governmental or administrative authority. The Allied Powers’ decision to exclude Dokdo from Japan’s territory was part of postwar measures to implement the results from the Cairo Declaration (1943) and the Potsdam Declaration (1945), which obligated Japan to renounce territories it had taken by “violence and greed.”　 Thus, Dokdo was rightly included as an area Japan should relinquish because it was Korea’s territory, which Japan usurped through violence and greed during the Russo-Japanese War.

　These measures taken by the Allied Powers were succeeded in the San Francisco Peace Treaty signed in September of 1951. Even though Dokdo was not explicitly mentioned in the treaty, it is only natural to see Dokdo as having been included in the Korean territory that Japan should relinquish. Even islands larger than Dokdo were not all referred to in the treaty, because it was impossible to mention all the islands of the Republic of Korea.

　Also the “Rusk Note,” upon which Japan bases its claim for sovereignty over Dokdo, has no legal effect in determining the holder of sovereignty over the island, as this note only reflected the opinion of the United States, not the opinion of the Allied Powers as a whole.

　This claim does not hold either in terms of the facts or from a legal perspective. First, SCAPIN-677 of January 1946 removed Takeshima from the jurisdiction of the Japanese government under the Occupation, but this was a measure for occupation and not a disposition of territory. SCAPIN-677 itself includes the proviso (paragraph 6) that “Nothing in this directive shall be construed as an indication of Allied policy relating to the ultimate determination of the minor islands referred to in Article 8 of the Potsdam Declaration.” The disposition of territory was conducted by the Peace Treaty. To begin with, Takeshima was never Korean territory. There is little evidence for the ROK claim that “Usando” which appears in ancient Korean books and maps is Takeshima and that Takeshima was historically Korean territory, and so on.¹⁹ The ROK has also not presented any evidence of effective occupation of Takeshima. The claim that Japan took Takeshima lacks the premise (that Takeshima was Korean territory).²⁰

　Next, the Peace Treaty is interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in its context and in light of its object and purpose (see Article 31 of the Vienna Convention on the Law of Treaties). Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of this method, or to determine the meaning when the interpretation through this method leaves the meaning ambiguous or obscure (Article 32 of the Convention). The “ordinary meaning . . . in its context and in light of its object and purpose” of Korea in Article 2 (a) of the Treaty of Peace with Japan is the Korea that was annexed to Japan in 1910, and does not include Takeshima. If additionally necessary, the meaning of this term “Korea” is confirmed and determined by the “preparatory work” presented in sections 2 through 5 above. The “islands larger than Dokdo” were not all referred to because they are included in the term Korea. The Rusk note has great significance as the preparatory work of the treaty (and it is not the opinion of the US alone).