Comprehensive issues

3. Evaluation under international law

(1) Legal nature of the 1905 Cabinet decision

 The Japanese government’s position is that “Japan had established sovereignty over Takeshima by the mid-17th century (early Edo period) at the latest.”¹⁶ So why did Japan “reaffirm its sovereignty” over Takeshima through a Cabinet decision, if its sovereignty had already been established? The reason was that historical titles¹⁷ that had previously been recognized through common understanding since ancient times needed to be “substituted”¹⁸ or “replaced”¹⁹ with titles as required by modern international law.

 In the East Asian world order to which Japan belonged, there was no concept that would equate to that of “territory,” which formed the basis for the European international order. The basis for the East Asian world order was the “domain.”²⁰ That is why, when Japan came to accept and apply modern international law of European origin based on the concept of “territory,” it became necessary to “substitute” or “replace” historical titles that were considered to have been held in “domains” with “territorial titles.”²¹

 The necessity for such “reaffirmation” has also been pointed out in international courts. In the Minquiers and Ecrehos case, the International Court of Justice noted that even if the kings of France did have an original feudal title to the islets in dispute, such an alleged original feudal title could today produce no legal effect, unless it had been replaced by another title valid according to the law of the time of replacement.²² This is because the court was of the opinion that, “What is of decisive importance, is not indirect presumptions deduced from events in the middle ages, but the evidence which relates directly to the possession” of the islets in dispute.²³ An arbitral tribunal in a dispute between Eritrea and Yemen made similar observations. ²⁴

 The Minquiers and Ecrehos case was between the United Kingdom and France, both part of the European international order, while the Eritrea-Yemen arbitral tribunal case was one between countries adhering to the Islamic international legal system, and both of these cases had origins in legal systems that were wholly different to the modern international legal system. Accordingly, the opinions expressed in these court judgments are also valid when making the transition from the East Asian world order to the traditional international legal order.²⁵ In short, modern international law does not prohibit countries that belonged to the East Asian world order from taking “reaffirmation” or similar measures in order to strengthen claim to or put beyond doubt any historical titles that had already been established in the process of accepting modern international law and being incorporated into the European international order.²⁶ It is rather the case that modern international law required to clearly express intent to claim sovereignty, to “substitute” or “replace” the title in effect at the time, and to exercise effective control, with just such a method.

(2) Method of expression of intent to claim

 The notice issued by Shimane Prefecture was not issued “in a secretive manner,” and the contents of the notice were known to “normal Japanese citizens.” This is because, as noted above, the notice was issued throughout Shimane Prefecture and also reported in the newspapers of the day (see Section 1 above).

 Next, it is indeed a fact that it was a “notice by a single provincial government” and that “the government of Korea at the time was not notified through official diplomatic procedures.” However, with regard to the former, under international law, there is no fixed format for expressing territorial intentions. It is not even necessary to do so explicitly, since the intent to claim can be presumed if state functions are peacefully and continuously displayed on the territory in question.²⁷ In any event, the method of notification through the offices of local government was commonplace at the time,²⁸ and the attribution of Takeshima is clearly indicated by a national institution, constituting an appropriate expression of the intent to claim.

 Furthermore, with regard to the latter point, there is no obligation to notify foreign governments of the intent to claim unless there is an explicit legal stipulation that requires otherwise.²⁹ An example of such a legal stipulation is the General Act of the Conference of Berlin of 1885. Article 34 of this act stipulates that a condition of occupation is that “the Power shall accompany the respective act with a notification thereof.” However, the effect of this act was limited to the coastal regions of Africa³⁰ and does not apply to East Asia. An eminent scholar of international law once predicted “there is no doubt that in time this rule will either by custom or by treaty be extended from occupations in Africa to occupations everywhere else.”³¹ His prediction proved not to be the case and international law did not develop in the way that he had anticipated.³²