Analysis of claims by other countries

Column The Syngman Rhee Line and the Origins of the Takeshima Dispute*

Sakamoto Shigeki (Professor Emeritus, Graduate School of Law, Kobe University)

1. Introduction

　The Truman Proclamation of September 28, 1945, which outlined U.S. policy concerning natural resources of the seabed and fisheries, became the precursor to the post-World War II fishing zone system. Along with this famous statement with respect to the continental shelf, U.S. President Harry Truman also issued Proclamation 2668 concerning coastal fisheries in certain areas of the high seas, the aim of which was to establish “conservation zones” in those areas of the high seas contiguous to the coasts of the United States to develop and maintain fishing activities on a sustainable scale.

　The proclamation also noted that (1) in areas in which only U.S. nationals undertake fishing activities, “the United States regards it as proper to establish explicitly bounded conservation zones in which fishing activities shall be subject to the regulation and control of the United States” and (2) Where such activities are conducted jointly with nationals of other countries, “explicitly bounded conservation zones may be established under agreements between the United States and such other States; and all fishing activities in such zones shall be subject to regulation and control as provided in such agreements.” It is self-evident that states may exercise jurisdiction over the activities of its citizens, even when such activities take place in international waters, and so a proclamation is hardly needed for the United States to exercise “regulation and control” overfishing activities involving only U.S. nationals. Proclamation 2668 states that where nationals of other states are involved, regulation and control may still be exercised in accordance with agreements with those other states. This American assertion is in line with international law.¹ However, the claims made by the Syngman Rhee Line, established by the South Korean government in 1952, unilaterally seek to establish sovereignty over international waters and were thus aimed at banning the fishing activities of other nationals—namely Japanese—through the extension of territorial waters.

　Indeed, Jean Pierre Adrien François, who was appointed special rapporteur by the International Law Commission for its 1958 codification of the Convention on the High Seas, had earlier noted that while the Truman Proclamation alludes to negotiations on agreements with other countries, this does not change the fact that Washington is making claims to waters where US nationals enjoy special rights; he thus took a negative position on prohibiting fishing activities by other nationals in jurisdictional waters.² Humphrey Waldock also warned against unilateral claims, noting that the proclamation is clearly a retrogression in the evolution from the Mare Clausum of John Selden to the Mare Liberum of Hugo Grotius and maintaining that the agreed-upon nature of seafaring rights must not be weakened.³ Wilbert McLeod Chapman, then special assistant to the undersecretary of state for fish and wildlife, countered these arguments by saying that “the purpose of the proclamation was to provide for new means, under law, to protect fishery resources lying in international waters from overexploitation. One nation by itself cannot change international law,” he maintained, so the “proclamation by the United States does not bind other nations to accept the new principle into the body of international law.”⁴

2. Problems with the Syngman Rhee Line

　Article 21 of the 1951 San Francisco Peace Treaty states, “Notwithstanding the provisions of Article 25 [defining the Allied Powers] of the present Treaty, . . . Korea [shall be entitled] to the benefits of Articles 2, 4, 9 and 12 of the present Treaty.” Article 9 includes a fishing clause, saying, “Japan will enter promptly into negotiations with the Allied Powers so desiring for the conclusion of bilateral and multilateral agreements providing for the regulation or limitation of fishing and the conservation and development of fisheries on the high seas.”⁵

　Japan and South Korea had the first round of talks to establish formal diplomatic ties on February 15, 1952. On January 18, though, a month prior to the start of negotiations, Seoul unilaterally declared the Rhee Line that claimed sovereignty over a vast ocean area reaching up to 190 nautical miles from its coast.⁶ The second clause in the declaration states, “The Government of the Republic of Korea holds and exercises the national sovereignty over the seas adjacent to the coasts of the peninsular and islands of the national territory, no matter what their depths may be, throughout the extension.”⁷ The aims of this declaration, South Korean side commented, were (1) to protect valuable fishery resources in the area enclosed by the Syngman Rhee Line; (2) to prevent future disputes with Japan regarding fishery resources; and (3) to erect a maritime defense against the penetration of communism.⁸

　In the years following World War II, many Japanese fishing operators who had returned from the Korean Peninsula, China, and Taiwan settled in Kyūshū, trolling and trawling the waters in the East China Sea and Yellow Sea west of 130 degrees east longitude and hauling catches far exceeding prewar levels. The South Korean government sought to unilaterally prohibit Japanese fishing activity near the Korean Peninsula, pointing to the differences in the two countries’ fishing capacity. Japan, naturally, vehemently protested based on the principle of the freedom of the high seas.⁹ But on December 12, 1953, Seoul enacted a fishery resources protection law, seizing Japanese fishing boats that violated this law by crossing over the Rhee Line. The central issue in bilateral fishery talks that dragged on for 14 years was this line, which resulted in 326 Japanese fishing boats being seized (of 185 were either sunk or never returned) and 3,904 crew members detained (of whom 8 died in the process of the seizure of fishing boats or detention of their crews. These figures include those seized or detained before the declaration of the Syngman Rhee Line).

　In response to the placement of Takeshima inside the Rhee Line, the Japanese government issued a note verbal on January 28, 1952, asserting that the contents of the Proclamation “are entirely incompatible with the long internationally established principles of the high seas.” In the proclamation, “the Republic of Korea appears to assume territorial rights over the islets in the Japan Sea known as Takeshima (otherwise known as Liancourt Rocks). The Japanese Government does not recognize any such assumption or claim by the Republic of Korea concerning these islets which are without question Japanese territory.”¹⁰

　South Korea countered that SCAPIN (Supreme Commander for the Allied Powers Instruction Note) 677, issued on January 29, 1946, explicitly excluded Takeshima from Japanese territory and that the islands were placed outside of the MacArthur Line delineating the area authorized for Japanese fishing. These facts, South Korea said, concur with and confirm its claims to the islands, and thus the Japanese government should be reminded there is no room for debate.¹¹ Indeed, SCAPIN 677, a Memorandum for the Imperial Japanese Government on the subject of “Governmental and Administrative Separation of Certain Outlying Areas from Japan,” notes that along with “Utsuryo (Ullung) Island” and “Quelpart (Saishu or Cheju) Island,” the “Liancourt Rocks (Take Island)” are excluded from the governmental and administrative jurisdiction of the Imperial Japanese Government. SCAPIN 1033 of June 22, 1946, on “Area Authorized for Japanese Fishing and Whaling,” moreover, states, “Japanese vessels or personnel thereof will not approach closer than twelve (12) miles to Takeshima (37°15’ North Latitude, 131°53’ East Longitude) nor have any contact with said island,” placing Takeshima outside the MacArthur Line.¹² For these reasons, South Korea insisted that the MacArthur Line be maintained and requested that a clause restricting Japanese fishing activities in waters near the Korean Peninsula be included in the San Francisco Peace Treaty. Both of these requests were rejected by Washington.¹³

　According to meticulous research of resources at the U.S. National Archives and Records Administration conducted by Tsukamoto Takashi, the State Department peace treaty drafts of March 19 and August 5, 1947; January 2, 1948; and October 13 and November 2, 1949, indicate that Takeshima was among the islands to be renounced by Japan. But William J. Sebald, the Acting United States Political Adviser in Japan to the Secretary of State , telegraphed Assistant Secretary of State for Far Eastern Affairs W. Walton Butterworth on November 14, 1949, to recommend the reconsideration of the Allied decision on the Liancourt Rocks (Takeshima): “Japan’s claim to these islands is old and appears valid. Security considerations might conceivably envisage weather and radar stations thereon.” In its draft of December 29, 1949, the State Department revised the relevant provisions of the San Francisco Peace Treaty to include Takeshima among the islands to be retained by Japan. A July 1950 commentary to Article 3 (on areas to be retained by Japan) of the draft treaty points out, “The two uninhabited islets of Takeshima, almost equidistant from Japan and Korea in the Japan Sea, were formally claimed by Japan in 1905, apparently without protest by Korea, and placed under the jurisdiction of the Oki Islands Branch Office of Shimane Prefecture. They are breeding ground for sea lions, and records show that for a long time Japanese fishermen migrated there during certain seasons. Unlike Dagelet [Utsuryo] Island, Takeshima has never been claimed by Korea.” The draft was later shortened by John Foster Dulles—appointed adviser to the secretary of state—and reference to the islands to be retained by Japan was deleted, but there was no change in the intention for Takeshima to be left as part of Japanese territory. This is clear from the Answers to Questions Submitted by the Australian Government Arising Out of the Statement of Principles Regarding Japanese Treaty Prepared by the United States Government: “It is thought that the island of the Inland Sea, Oki Retto, Sado, Okujiri, Rebun, Rishiri, Tsushima, Takeshima, the Goto Archipelago, the northernmost Ryukyus, and the Izus, all long recognized as Japanese, would be retained by Japan.”¹⁴

　The South Korean government, in a letter from Ambassador Yang You chan to U.S. Secretary of State Dean Acheson, “requests that the word ‘renounces’ in Paragraph a, Article Number 2, 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 [of] Quelpart, Port Hamilton, Dagelet, Dokdo and Parangdo.’” In a reply dated August 10, 1951, to the South Korean embassy, however, Assistant Secretary of State for Far Eastern Affairs Dean Rusk stated, “the United States Government regrets that it is unable to concur in this proposed amendment. . . . 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.”¹⁵

　It goes without saying that Takeshima, which was part of Japan prior to the annexation of the Korean Peninsula, is not among the territories that Japan “has taken by violence and greed” referred to in the 1943 Cairo Declaration. And as seen above, the islands renounced by Japan in Article 2 (a) of the San Francisco Peace Treaty (“Japan, recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet”) does not include Takeshima. Again, in response to South Korean requests for revisions to the peace treaty, Japan argued that SCAPIN 677 of January 29, 1946, only ordered a halt in Japanese governmental and administrative jurisdiction or attempts to exercise jurisdiction over Takeshima and was not a statement of ownership and that, similarly, the MacArthur Line was not a final statement of Allied policy regarding national jurisdiction, international boundaries, or fishing rights.¹⁶ Indeed, Paragraph 6 of SCAPIN 677 explicitly states, “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,” and Paragraph 5 of SCAPIN 1033, which established the MacArthur Line, notes, “The present authorization is not an expression of allied policy relative to ultimate determination of national jurisdiction, international boundaries or fishing rights in the area concerned or in any other area.”¹⁷ Japan’s arguments were based on the fact that the Allied powers had not acquiesced to South Korean demands.

　The United States itself was strongly opposed to the Rhee Line.