Resolution of the Dokdo Island Dispute
In dealing with territorial disputes within the geographic areas covered by the 1952
San Francisco Peace Treaty (SFPT), two problems arise: How are we to interpret the
ownership of (1) islands given up by Japan but where no “receiving country” is
specified? or (2) of islands which are not even clearly mentioned in the treaty?
Nomenclature. Territorial cessions where no “receiving country” is specified may be
called “limbo cessions.” Territory which is not clearly and specifically dealt with
may be called “un-demarcated territory.”
The SFPT was written within the framework of the laws of war – often called “the
customary laws of warfare.” Within its own geographic scope, it is the highest ranking
document of international law in the post WWII era. Obviously, the SFPT is still in
effect up to the present day, and there is a methodology for determining how
“territorial sovereignty” disputes can be resolved under such a treaty structure.
Introduction to the Customary Laws of Warfare
In the pre-Napoleonic period, conquest and annexation were commonly viewed as an
accepted method of territorial acquisition. However, after the Napoleonic Wars,
international law underwent a transformation, and “annexation” was no longer
permitted. In the modern era, conquest must be followed by military occupation.
The Hague Regulations (1907) specify that “Territory is considered occupied when it
is actually placed under the authority of the hostile army.”
Legal Relationships. Legal relationships do not arise from a consideration of which
army accepted the surrender of what other army, or which military troops were
victorious in what particular battle, or what the composition of the Allies was at any
particular point in time, or what intentions were stated in the surrender documents or
other pre-surrender proclamations about the future disposition of territory, etc. Legal
relationships arise from a consideration of “Who is the occupying power?” In the
post-Napoleonic era, this goes back to a determination of “Who is the conqueror?”
Importantly, the terminology of the occupying power is used with only some minor
variations in all relevant conventions and treaties which dictate international norms
regarding the disposition of persons and property in areas under military occupation.
For example, while the Geneva Conventions generally refer to the occupying power,
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the Hague Conventions often speak of the occupying state. However, in dealing with
military occupation matters, the “law of agency” is always available. When the
administrative authority for the military occupation of particular areas is delegated to
other troops, the terminology of the principal occupying power is most commonly
seen, and a “principal – agent” relationship is in effect.
After Pearl Harbor, the US Congress declared war against Japan on Dec. 8, 1941. All
military attacks against the four main Japanese islands were conducted by United
States military forces, so it can be held that the United States is the “conqueror” of
Japan and her overseas territories. In other words, the United States has “acquired”
these areas under the principle of conquest, and the disposition thereof must be
conducted according to the laws of war.
General Order No. 1 was issued on Sept. 2, 1945.
President Harry Truman approved
this Order before its promulgation, the United States is the “conqueror” of Japan and
her overseas territories, and General MacArthur is the head of the United States
military forces. Hence the strongest presumption would be that United States is the
principal occupying power. Importantly, Article 23 of the SFPT fully confirms this.
Military occupation is conducted under military government. For territorial cessions
and un-demarcated territory, it is important to realize that the military government of
the principal occupying power does not end with the coming into force of the peace
treaty. This is easily clarified by doing an overview of the military history of the
Philippines, Guam, and Puerto Rico, and Cuba after the Spanish American War.
Dokdo was territory included in, and/or adjunct to, the areas “acquired” by the United
States, and thus under the jurisdiction of US military authorities. As un-demarcated
territory under the terms of the treaty, at the present time Dokdo is still subject to the
jurisdiction of the United States Military Government (USMG).
Although Dokdo
has no native population, there are Korean troops there now. Under the SFPT, these
personnel would be considered a subordinate occupying power.
USMG is the principal. The Korean troops are the agent.
This is “agency.”
Disposition of Acquired Territory
The territorial clause of the US Constitution says: “The Congress shall have Power to
dispose of and make all needful Rules and Regulations respecting the Territory or
other Property belonging to the United States.... ”
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Hence, under the provisions of the SFPT for (1) limbo cessions (such as the Kuriles,
Spratly Islands, Taiwan, etc.) or for (2) un-demarcated territory , it is clear that the
title to the territory escheats to “the conqueror,” which in the post-Napoleonic period
is “the principal occupying power.” This is ownership in the sense of “having legal
right to,” or “having title to,” however, it is more properly delineated as a kind of
“quasi-trusteeship.”
Hence, Korean government officials should be petitioning the US Congress to make
final disposition of this “property” held under USMG, and subject to the jurisdiction
of the US Congress under the territorial clause of the US Constitution.
A somewhat similar analysis can be done for the SFPT’s limbo cessions. Japanese
government officials should petition the US Congress to make a determination of the
“civil rights and political status” of the inhabitants of the Kurile Islands. In this way,
Dokdo can be awarded to Korea, and the Kurile Island dispute can be resolved in
favor of Japan. Of course, responsibility for the implementation of such decisions
would rest with the US Commander in Chief.
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