Comprehensive issues

Column Legal Nature of the 1905 Measures to Incorporate Takeshima into Shimane Prefecture of Japan

Tetsuya Nakano (Kansai University)

1. Introduction

 On January 28, 1905 the following Cabinet decision was issued by the Japanese government.

“As regards the attached proposal from the Minister of Home Affairs on the matter of the jurisdiction over an uninhabited island (omitted)…, it is clear from the related documents that this person, named Yozaburo NAKAI, since 1903, has moved to the island and engaged in fishery activities. We recognize the fact of its occupation under international law, and therefore we consider that there would be no obstacle to regard the island as belonging to Japan and to bring it under the jurisdiction of the Director of the Oki Islands branch office of the Shimane Prefectural Government.”¹

 The Minister of Home Affairs then issued an instruction to the Governor of Shimane Prefecture, based on the above Cabinet decision, that, “[the islands] are hereby named ‘Takeshima,’ and shall come under the jurisdiction of the Director of the Oki Islands branch office of the Shimane Prefecture.
You are instructed to proclaim this matter in your jurisdiction.”² Then, on February 22, 1905, the Governor of Shimane Prefecture issued the same instruction to Oki Island branch office,³ and also released a prefecture-wide notice to the effect that Takeshima would become a part of the prefecture, under the jurisdiction of the Director of Oki Islanda branch office.⁴ On February 24, the San-in Shimbun and Shoyo Shimpo newspapers reported on this notice, under the respective headlines, “New Oki Islands,” and “Takeshima Newly Come Under Shimane Prefecture Jurisdiction.”⁵

 The Japanese government considers that, with the above-mentioned Cabinet decision, it “reaffirmed its sovereignty over Takeshima.”⁶ Accordingly, the Cabinet decision “does not indicate or imply that prior to [the Cabinet decision] Japan did not hold sovereignty over Takeshima, or that sovereignty was held by some other State,” and what is more, the subsequent measures that were taken to incorporate Takeshima were “also published in the newspapers of the day, and were implemented effectively, without any recourse to clandestine measures.”⁷ In response, the government of the Republic of Korea (ROK) asserts that, “To state that Japan reaffirmed its sovereignty over its own territory is an impossible defense under international law and one for which there is no precedent.”⁸ In addition, the ROK government contends that the fact an attempt was made to incorporate Dokdo by an official notice issued by Shimane Prefecture indicates that the “Japanese Government consistently acknowledged that Dokdo was non-Japanese territory.”⁹ In any event, the ROK government asserts that the stipulations of Imperial Edict No. 41, which was issued in 1900, “clearly demonstrate the fact　that…[Korea] had continued to govern Dokdo and exercised Korea’s sovereignty over Dokdo.” What is more, the measure by Japan to incorporate the islands “was not only an illegal act that infringed upon Korea’s long-standing and undeniable sovereignty over the island, but also null and void under international law.”¹⁰ In addition, the ROK government argues that “The notice issued by Shimane Prefecture is nothing more than a notice from a provincial government, and it was not notified to the government of Korea at the time through official diplomatic procedures. What is more, as it was issued secretly, not even normal Japanese citizens, let alone other countries, were aware of its content. Accordingly, it can in no way be regarded as a public announcement of a nation’s intentions.”¹¹

 As can be seen from the above, the two countries’ claims relating to the Cabinet decision and subsequent incorporation measures are diametrically opposed. However, the ROK’s claims have absolutely no basis in international law. The purpose of this paper is to demonstrate this point. To do so, it would be advisable to first take a look at the background leading to the Cabinet decision.