Analysis of claims by other countries

3. US Assessment of the Rhee Line

　It is an undeniable fact that many countries, South Korea included, sought to extend the reach of their fishery jurisdiction beyond territorial waters following World War II. Usually, they sought to do this without actually expanding their territory. South Korea, though, drew an arbitrary line and unilaterally declared “sovereignty” over the waters within that line. The word it chose to use was not “jurisdiction” but “sovereignty,” which implied an extension of territorial waters. This naturally triggered objections not only from Japan but also from the United States, Britain, and other countries. Japan contended that the Rhee Line had no basis in international law and that the seizure of Japanese fishing vessels was an illegal act in violation of the principle of the freedom of the high seas. As the author will show in the following, the U.S. reaction was much the same.¹⁸

　In his letter of February 11, 1952, to South Korean Foreign Minister Pyun Yung-tai, U.S. Ambassador to Korea John J. Muccio criticized the declaration, stating, “I am directed to inform your Excellency that the Government of the United States of America regards with deep concern the provisions of this Proclamation. If carried into execution, this Proclamation would bring within the exclusive jurisdiction and control of the Republic of Korea wide ocean areas which have hitherto been regarded as high seas by all nations, and would in these waters and in the air space above supplant the free and untrammeled navigation of foreign vessels and aircraft by such controls as the Republic of Korea, in the exercise of the sovereignty claimed, might apply.

　Although the Proclamation purports to be supported by well-established international precedents, my Government is not aware of any accepted principle of international law which would qualify as a legitimate precedent for this purported extension of Korean sovereignty. In this regard, my Government wishes to call to the attention of the Republic of Korea, that, unlike the two Proclamations issued by the President of the United States of America on September 28, 1945 concerning United States policy with respect to the resources of the continental shelf and conservation of contiguous high sea fisheries, the Korean Proclamation relates to Korean national sovereignty over the areas specified therein. The two United States Proclamations did not contemplate, nor in fact effect, any extension of the pre-existing territorial waters of the United States.

With the foregoing considerations in mind, the Government of the United States of America desires to inform the Government of the Republic of Korea that it reserves all its interests and the interests of its nationals and vessels under the provisions of the Korean Proclamation in question, and under any measures designed to carry them out into execution.”¹⁹

　In response, Foreign Minister Pyun explained: “1. The term ‘sovereignty’ was rather loosely employed in the Proclamation and need not be construed as sovereignty [in] the usual absolute sense of the word. The term is interchangeable with the phrase ‘jurisdiction and control.’
　2. The marine zone declared around Korea by the said Proclamation is, as in the case of the United States proclamations, never meant to be the extension of the Korean territorial waters which should remain, as [a] matter of course, of the internationally accepted width, irrespective of the Proclamation. It is exactly to avoid a possible confusion on this score that the Korean Proclamation provides in its ending article that it does not interfere with the right of navigation over the high seas.”²⁰

　Following criticism by the United States and other countries that the declaration pushed out the boundaries of territorial waters into the high seas, South Korea, from September 11, 1953, began using the term “Peace Line” to refer to the Rhee Line. Most South Korean nationals, though, continued to firmly believe that the line demarcated its territorial waters. Thus, after the South Korean government was forced to repeal the Rhee Line and adopt the 12-nautical-mile fishing zone rule during negotiations for the June 22, 1965, Japan-South Korea Fishery Agreement, the then ruling party, the Democratic Republican Party, called for understanding from people who were demanding that the Rhee Line be defended at all costs in a March 1964 pamphlet, stating that while the patriotic desire for an extension of the country’s territorial waters is a matter of course for the South Korean people, international law cannot be disregarded if the country is to act as a dutiful member of the international community.²¹

4. The Rhee Line and the Takeshima Dispute

　The equally illegal occupation of Takeshima in violation of international law has continued thereafter, however, and ongoing efforts have been made to turn South Korean control of the islands into an accomplished fact, such as by erecting signs of territorial claims, constructing a lighthouse, and stationing coastal security forces. The official government perception of the Takeshima issue, therefore, appears no different from those of people screaming for the “defense of Dokdo at all costs.” In the wake of the July 12, 1953, firing by the South Korean armed police occupying Takeshima on the Japan Coast Guard patrol vessel Hekura, which demanded that the occupiers leave, the Japanese government proposed that the territorial dispute be settled by the International Court of Justice. A note verbal issued by Japan on September 25, 1954, reads,

In as much as the issue is a dispute on territorial rights, involving interpretation of the fundamental principles of international law, the only equitable solution would be to refer the dispute to an international tribunal for a decision. Being most anxious to see a peaceful solution of the dispute, the Japanese Government hereby proposes that the dispute be submitted to the International Court of Justice by mutual agreement of the Japanese and Korean Governments”.²²

　The ICJ does not have compulsory jurisdiction, and cases may be brought before it by any one country only when all parties to a dispute have declared their acceptance, in advance, of provisions recognizing such jurisdiction. Japan made a declaration on September 15, 1958, stipulating that it accepts the compulsory jurisdiction of the ICJ over “all disputes arising on and after September 15, 1958 with regard to situations or facts subsequent to the same date.” If the Takeshima territorial dispute arose as a result of the 1952 Rhee Line, therefore, Japan would be hindered from referring the case to the ICJ on its own, even if South Korea makes a declaration recognizing the ICJ’s jurisdiction at a future date. Under the circumstances, in order for the case to be referred to the ICJ, the only option would be for both parties to agree to do so.²³

　The South Korean government flatly rejected Japan’s proposal in a diplomatic memorandum dated October 28, 1954, stating that
　“Dokdo [Takeshima], as the government of the Republic of Korea has made clear at every opportunity, has been part of Korean territory since ancient times and remains so today….
　The proposal of the Japanese Government that the dispute be submitted to the International Court of Justice is nothing but another attempt at the false claim in judicial disguise. Korea has territorial rights ab initio over Dokdo and sees no reason why she should seek the verification of her rights before any international court of justice. It is Japan who conjures up a quasi-territorial dispute where none should exist….
　The people of the Republic of Korea are determined to protect Dokdo and thereby maintain the integrity of our nation. In that sense, the government of the Republic of Korea has no need to refer the question of Dokdo’s sovereignty to a decision of the International Court of Justice.”²⁴ The report (declassified in 1986) of the U.S. mission to the Far East led by James Van Fleet, who visited South Korea between April 26 and August 7, 1954, states that Van Fleet “informally conveyed to the Republic of Korea” that “Though the United States considers that the islands are Japanese territory, . . . Our position has been that the dispute might properly be referred to the International Court of Justice.” The South Korean side, the report notes, argued that “Dokdo” was part of Utsuryo Island.²⁵

　Japanese Foreign Minister Kosaka Zentarō made a similar proposal to his South Korean counterpart Choi Duk-shin in March 1962 during bilateral normalization talks, but this was again rejected.²⁶ When the Treaty on Basic Relations between Japan and the Republic of Korea was signed on June 22, 1965, Japanese Foreign Minister Shiina Etsusaburō and South Korean Foreign Minister Lee Tong-won also signed the Exchange of Notes Constituting an Agreement between Japan and the Republic of Korea Concerning the Settlement of Disputes, which reads, “Unless otherwise agreed, the two Governments shall settle disputes between the two countries primarily through diplomatic channels and, when they fail to do so, shall seek settlement by conciliation in accordance with procedures to be agreed upon between the two Governments.”²⁷ While the Japanese government understands that “disputes” include the Takeshima issue, the South Korean government asserts that inasmuch as Dokdo is Korean territory, it is not part of the dispute between the two nations.²⁸ This, effectively, has doomed any prospects for “conciliation” without the agreement of the two governments.²⁹

　During deliberations on October 27, 1965, regarding the Treaty on Basic Relations between Japan and the Republic of Korea and other bilateral agreements in a special committee of the Japanese House of Representatives, Japan Socialist Party member Matsumoto Shichirō introduced the comments made by South Korean Foreign Minister Lee Tong-won to the National Assembly to the following effect: “It is a fact that an exchange document exists for the peaceful settlement of disputes. But this is a common convention in international discourse. Historical evidence shows that even treaties between very friendly countries can become a source of misunderstanding and friction after a certain period of time. So, in the remote chance that a misunderstanding does emerge, particularly over fishing issues or compensation claims, we can refer to the document for guidance on how to resolve such disputes. Both Foreign Minister Shiina and Prime Minister Satō [Eisaku] expressed understanding that the Dokdo issue was not an object of dispute.”

　In response, Prime Minister Satō clearly repudiated Foreign Minister Lee’s remarks: “I’m sure that all citizens are well aware, in the light of the statement just read by Mr. Matsumoto, that there is a real dispute over this issue. The statement alleges that Foreign Minister Shiina and I agreed before the documents were signed that no dispute exists. There is absolutely no truth to such a claim. If I may add, we do have an exchange of notes on the settlement of disputes. This is a fact. But it should be clear that this was not added to deal with disputes related to fishing rights or economic cooperation, since the provisions for settling such disputes are contained in the agreements for those issues themselves.”³⁰

　Regardless of claims to the contrary, there does exist a territorial dispute over Takeshima. According to international law, the presence or absence of a dispute is not determined by the claims of any one country. In its August 30, 1924, ruling on the Mavrommatis Palestine Concessions case, the Permanent Court of International Justice—the predecessor of the International Court of Justice—defined a dispute as being “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.”³¹ And the Advisory Opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania of March 30, 1950, notes, “Whether there exists an international dispute is a matter for objective determination. The mere denial of the existence of a dispute does not prove its non-existence.”³² Based on such judicial precedent, a dispute over Takeshima veritably exists between Japan and South Korea, for both countries are claiming it as their own territory, and there is a conflict of legal opinion over territorial rights.

　In anticipation of the dispute actually being referred to the ICJ, many factors need to be considered that would have a significant influence on the outcome of its ruling, such as critical dates, periods of prescription, and tacit approval.³³

5. Conclusion

　Within South Korea, there exists a positive reappraisal of the Syngman Rhee Line as a precursor to the concept of exclusive economic zone, but this is difficult, even in comparison with the 1952 Santiago Declaration, which was the first international instrument to proclaim a 200-mile limit. The South Korean side is actively seeking international justification for the Rhee Line, even though it appears to be nothing short of an outrage from the Japanese perspective. One clearly perceives, moreover, that South Korea is seeking to strengthen its Dokdo claims through a positive reappraisal of this line. By comparison, Japan is doing very little to assert its case on the Takeshima issue. Japan must use every opportunity to inform the world of the grounds for its territorial claims and demonstrate the problems with the South Korean policy of turning its illegal occupation of Takeshima into a fait accompli.

　Some may demur at too loudly criticizing a friendly nation like South Korea, but the author is of the opinion that we should share our frank opinions with one another precisely because we are friends, and if diplomatic negotiations prove unable to resolve the dispute, we need to then show our resolve to take the matter to the ICJ or find some other method of peaceful settlement. As members of the United Nations, both countries should be reminded of the organization’s core principles, as stipulated in Article 2, Paragraph 3, of the UN Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” The UN Charter refers to the ICJ in Chapter XIV, saying, “The International Court of Justice shall be the principal judicial organ of the United Nations” in Article 92. As a UN member, Japan should naturally refer its Takeshima dispute with South Korea to this court and should, at the same time, make an effort to state its case internationally that the fault lies with the South Korean side for refusing to do so.