キム教授の命題の確認と1905年の日本の効果的仕事  英

金教授の命題




A Study on Territorial Sovereignty

over Dokdo in International Law
  • Refutation to the Japanese Government's
Assertions of the Occupied Territory -
1
Myung-Ki Kim*
. Introducti・ー on
Dokdo (also spelled : Dok-Do, dok-do, Tokdo, Tok-Island,
or Dok-Do island), with Ullungdo, has been an integral part
of Korean territory together since the 13th year of King
Chijung of Shilla(512 A.D.).
Dokdo, located 49 nautical miles east of Ullungdo in the
East Sea and 86 nautical miles west of Japan's, Oki Island,
is composed of two main islets, East and West, as well as 32
surrounding small rocks and reefs. It is the Republic of
Korea's territory, entered into the register with its location
at san-42 to san-76 Todong, Nammyon, Ullunggun,
Kyongsangbukto, Korea.
When the Republic of Korea government announced 。ーthe

Honorary Professor, Myong Ji University Erudite Professor, Cheonan

University
308 . ヤシモミ・マ淼レマシメユ
Presidential Declaration on Sovereignty over the Adjacent
Seas。ア on January 18, 1952, the Japanese Ministry of Foreign
Affairs protested on the 28th of the same month that 。ーthe
Republic of Korea's declaration seems to have the territorial
rights over the islets known as Takeshima, but the Japanese
government dose not recognize such a claim by the Republic
of Korea.。ア Thus started a issue over Dokdo between Korea
and Japan.
As the issue became heated through the exchange of
memoranda and counter-memoranda over the territorial
sovereignty of Dokdo, the Korean government and many
scholars have presented historical proofs as well as legal
grounds that the territorial sovereignty over Dokdo belongs to
the Republic of Korea, not to Japan.
This paper attempts to point out the invalid nature of the
Japanese government's assertions.
The Japanese government's assertions are divided into 。ーthe
assertion of inherent territory。ア and 。ーthe assertion of occupied
territory.。ア However, this study intends to investigate the
invalid nature of 。ーthe assertion of occupied territory.。ア
・ア. Contents of the Japanese Government's Assertions
As indicated above, one of the legal basis of the Japanese
government's assertions concerning the territorial sovereignty
over Dokdo is 。ーacquisition of territory by occupation.。ア
A Study on Territorial Sovereignty over Dokdo in International Law . 309
The Japanese government maintains that Japan has
acquired Dokdo by occupation of a terra nullius. In the note
verbale dated February 10, 1954, the Japanese Government
maintains that Japan acquired Dokdo by occupation and that
one of the requisite conditions for occupation, i. e. the
intention of the state to acquire the territory, was met in the
following way :
With regard to the requirements for acquisition of territory
under modern international law, it should be mentioned that
the intention of the State to acquire the territory was
confirmed as a result of the decision made at a Cabinet
meeting on January 28, 1905, for the adding of Takeshima to
the territory of Japan and that on February 22, 1905, a public
announcement of the intention of the State to acquire the
territory was made by a notification issued by Shimane
Perfectural Government.
As this was in accordance with the practice followed by
Japan at that time in announcing her occupancy of territory,
the above measure taken for the public announcement of the
intention of the State has satisfied the requirement under
international law in this respect.1
1 。ーNote Verbale。ア of the Japanese Government dated February 10, 1954,
Views of the Japanese Government in refutation of the position taken
by the Korean Governmant in the Note Verbale of the Korean Mission
in Japan, September 9, 1953, Concerning Territoriality over Takeshima。ア
(The Japanese Government's Views 2), para. 4.
310 . ヤシモミ・マ淼レマシメユ
As mentioned above, the Japanese government claims that
it acquired its territorial sovereignty by occupation of Dokdo.
・イ. Refutation to the Japanese Government's Assertions
Concerning the view of the Japanese government's assertion
of occupation, the following legal items should be taken into
consideration.
(・。) Dokdo was not a terra nullius which could be an object
of occupation.
(・) The Japanese government has never effectively
occupied Dokdo.
(・) The Japanese government has not fulfilled the
obligation of notification of occupation.
(・、) The Japanese government first advanced the theory of
occupation of a terra nullius and then switched its
claim to inherent territory.
However, in this study, (・。) and (・]])will be dealt with.
1. Refutation to the Assertion of the terra nullius
A territory subject to occupation must be a 。ーterra nullius2。ア.
。ーTerra nullius。ア is a territory which is not under the control of
2 Ian Brownlie, Principles of Public International Law, 3rd. (Oxford :
Clalendon, 1979), p.142.
A Study on Territorial Sovereignty over Dokdo in International Law . 311
an international person or a subject of international law.3 In
other words, a 。ーterra nullius。ア has never belonged to any
State, and is not a territory abandoned by a sovereign state.4
The abandonment of territorial right requires not only the
non-exercise of power over the territory, but also the
expression of the intention to abandon the territory.5
It was confirmed by the Clipperton Island Case(1931).6 The
polar regions are terra nullius but are excluded from the
object of occupation.7 It is an established principle of
international law that the object of occupation must be a
。ーterra nullius.。ア
A. Scholars Views
That the object of occupation must be an ownerless territory
is maintained by many scholars, and on this point, there is
no objection.
According to L. Oppenheim :
Only such territory can be the object of occupation as belongs
to no State, whether it is entirely uninhabited for instance, an
3 Georg Schwarzenberger and E. D. Brown, A Manual of International
Law, 6th ed.(Milton : Professional Books, 1976), p.97.
4 Hersch Lanterpacht(ed.), Oppenheim's International Law, 8th ed.,
Vol.1(London : Longmans, 1955), pp.555-56.
5 Brownlie, op. cit., supra n.2, p.142.
6 A. J. I. L., Vol.26, 1832, p.394.
7 Robert Jennings and Arthur Watts(ed.), Oppenheim's International
Law, 9th ed., Vol.1(London : Longman, 1992), p.692.
312 . ヤシモミ・マ淼レマシメユ
island, or inhabited by natives whose community is not to be
considered as a State.8
This view is also maintained by I. C. MacGibbon,9 Hans
Kelsen,10 R. Y. Jennings,11 Ian Brownlie,12 Robert Jennings
and Arthur Watts,13 Santiago T. Bernardez,14 J. G. Starke,15
David H. Ott,16 Oscar Svarlien,17 Georg Schwarzenberger and
E. D. Brown,18 and Isagani A. Cruz.19 Also, an ownerless
territory includes the region abandoned by the former owner
state, and the abandonment requires not only the
non-exercise of authority in the region but also the
8 Lauterpacht, op. cit., supra n.4, p.555.
9 I. C. MacGibbon,.The Scope of Acquiescence in International Law,.
B. Y. I. L., Vol.31, 1954, p.167.
10 Hans Kelsen, Principles of International Law, 2nd ed. (New York :
Holt, 1967), p.314.
11 R. Y. Jennings, The Acquisition of Territory in International Law
(Manchester : Manchester University Press, 1963), p.23.
12 Brownlie, op. cit., supra n.2, p.142.
13 Jennings and Watts, op. cit., supra n.7, p.686.
14 Santiago T. Bernardez,.Territory, Acquisition,.in Rudolf Bernhardt(ed.),
Encyclopedia of Public International Law, Vol.10(Amsterdam :
North-Holland, 1987), p.500.
15 J. G. Starke, Introduction to International Law, 9th ed. (London :
Butterworth, 1984), p.155.
16 David H. Ott, Public International Law in the Modern World
(London : Pitman, 1987), p.105.
17 Oscar Svarlien, An Introduction to the Law of Nations(New York :
McGrow-Hill, 1955), p.170.
18 Schwarzenberger and Brown, op. cit., supra n.3, p.97.
19 Isagani A. Cruz, International Law(Quezon : Central Lawbook,
1992), pp.109~111.
A Study on Territorial Sovereignty over Dokdo in International Law . 313
expression of its intention of abandonment.20
B. Judicial Precedents
That the object of occupation must be a terra nullius is
accepted by many judicial decisions.
The ゥ・Clipperton Island Case
In the Clipperton Island Case (1931) between France and
Mexico, Arbitrator Victor Emmanuel passed judgment that
Clipperton Island belonged to France and described reason as
follows :
Consequently, when France expressed its sovereignty for
Clipperton Island, the Island was in the legal situation of
territorium nullius, and therefore there is a basis for accepting
that France was in a position to carry out occupation.21
And in this case, the judge ruled that the abandonment of
territorial right for an area which had belonged to the
sovereignty of a state requires the expression of 。ーanimus of
20 Jennings and Watts, op. cit., supra n.7, p.688, n.6 ; Bernardez, op.
cit., supra n.14, p.500 ; Brownlie, op. cit., supra n.2, pp.148-49 ;
D. P. O'Connell, International Law, Vol.1(London : Stevens, 1970),
p.444 ; Michael Akehurst, A Modern Introduction to International
Law, 4th ed.(London : George Allen, 1984), p.142 ; Charles C.
Hyde, International Law, 2nd ed., Vol.1(Boston : Little Brown,
1947). p.394.
21 A. J. I. L., Vol.26, 1932, p.393.
314 . ヤシモミ・マ淼レマシメユ
abandoning,。ア in addition to non-exercise of authority on the
area.22
In short, the Clipperton Island Case reconfirmed that the
object of occupation must be a territory without owner.
ゥ・The Legal Status of Eastern Greenland Case
In the Eastern Greenland Case (1933) between Denmark
and Norway, Norway declared occupation of Eastern
Greenland on July 10, 1931, and asserted that Eastern
Greenland on July 10, 1931, and asserted that Eastern
Greenland was a territory without owner.23 The International
Court of Justice ruled as follows :
In the event that it is acknowledged as impossible to
reconcile Denmark's theory of sovereignty and Norway's theory
of a terra nullius, it is necessary to restrict negotiations to an
agreement which enables rules.24
The problem of sovereignty and the problem of terra nullius
are a problem outside the Convention of July 9, 1924. It is the
fact that Norway did not make any reference on this matter in
the Convention.25
Thus, the Permanent International Court of Justice recognized
as the conditions for prior occupation that the territory
22 Ibid., p.394.
23 P. C. I. J., Series NB, No.53, 1933, p.44.
24 Ibid., p.73.
25 Ibid., p.74.
A Study on Territorial Sovereignty over Dokdo in International Law . 315
becoming an object for occupation must be a terra nullius.
The ゥ・Western Sahara Case
In the Western Sahara Case(1975), when Spain tried to
give independence to Western Sahara which had been its
colony since the 19th century, Morocco and Mauritania each
claimed the title to Western Sahara.
Concerning the title to Western Sahara, the United Nations
General Assembly asked the International Court of Justice for
an advisory opinion.26 The International Court of Justice
expressed its opinion as follows :
The expression, 。ーterra nullius,。ア is a legal term used in
connection with prior occupation, which is one legal method for
acquiring sovereignty over a territory- That the territory must
be a terra nullius territory belonging to no one - is one of the
cardinal conditions for an effective occupation.27
By the opinion, the international Court of Justice made it
plan that the object of occupation must be a terra nullius.
In customary international law, a territory subjected to
occupation needs to be a 。ーterra nullius.。ア Dokdo, together with
Ullungdo, was not a terra nullius but had belonged to Korea
ever since the era of Silla, and this is proven by many
26 I. C. J. Reports, 1975, p.12.
27 Ibid., p.39.
316 . ヤシモミ・マ淼レマシメユ
historical data. The vacant island policy did not mean the
abandonment of territorial right to Dokdo. Therefore, Dokdo
did not become a 。ーterra nullius,。ア that is to say, an object of
occupation. If Japan claims the occupation of Dokdo, Japan
must prove that Korea had the intention of abandoning Dokdo.
2. Refutation to the Assertion of the Notification
The Japanese government maintains that the external
notification of occupation is not a requisite for occupation in
international law.
However, the Japanese government asserts that its
intention to acquire the territory was officially announced by
the 。ーnotification。ア by Shimane Prefecture. This was countered
by the Korean government as follows in the note verbale
dated September 25, 1954 :
The Korean Government cannot recognize the propriety of the
Japanese Government's argument that Japan has satisfied 。ーthe
condition of the public announcement of the intention of the
state under international law regarding occupancy.。ア The alleged
notification by the Shimane Prefectural Government was so
stealthily made that is was not known even by the general
public of Japan, not to speak of foreign countries, Therefore, it
can by no means be considered as public announcement of the
intention of one country.28
28 。ーNote Verbale。ア of the Korean Government dated September 25, 1954,
。ーThe Korean Government's View ゥ・Refuting the Japanese
Government's View of the Territorial Ownership of Dokdo
A Study on Territorial Sovereignty over Dokdo in International Law . 317
Thus, the notification by Shimane Prefecture in 1905 was
to inform the local people of the intention of a local
administrative organ and could not be construed as an
external expression of intention of the state under
international law.
The Japanese government's note verbale dated September
20, 1956, asserts:
In connection with the aforementioned public announcement,
there is a question of notification to foreign countries. In this
respect, most of international jurists agree that there is no
principle in international law which regards such notification
as above as an absolute requirement for acquisition of
territory. In the cases of the Island of Palmas of 1928 and of
Clipperton Island of 1931, moreover, the Permanent Court of
Arbitration gave decisions making it clear that no notification
to foreign countries is required for the acquisition of territory.
The principle followed in the above two cases was asserted by
the United States at the time of its occupancy of the Guano
Islands.29
Relating to the notification of occupation, the Japanese
Takeshima) Taken in the Note Verbale No. 15/A2 of the Japanese
Ministry of Foreign Affairs dated February 10, 1954。ア(The Korean
Government's Views 2), Part ・イ, para.2.
29 。ーNote Verbale。ア of the Japanese Government dated September 20,
1956, 。ーThe Japanese Government's Views on the Korean
Government's Version of Problem of Takeshima dated September 25,
1954。ア(The Japanese Government's Views 3), Part ・イ.
318 . ヤシモミ・マ淼レマシメユ
government views that external notification of occupation is
not a requisite for occupation under international law.30 This
is tantamount to admitting that 。ーthe Shimane Prefecture
Public Notice No. 40。ア dated February 22, 1905, was not the
external notification by international law. It is necessary to
examine whether notification is one of the requisites for
occupation under international law.
A. Scholars' Views
Concerning the notification as a requisite condition for
occupation, the Japanese government maintains :
In this respect, most of international jurists agree that there
is no principle in international law which regards such
notification as above as an absolute requirement for acquisition
of territory.31
30 This view is held by Japanese scholars such as Minagawa Ko,
。ーTakeshima Dispute & International Precedent,。ア Maehara Mitsuo
kyoju kanreki kinen kokusaihogaku no shomondai (Various Problems
in International Law in Commemoration of the Sixtieth Birthday of
Prof. Maehara Mitsuo)(Tokyo : Keio Tsushim, 1963), p.367 ; Ueda
Katsuo, 。ーJapan-Korea Dispute over Annexation of Takeshima,。ア
Hitotsubashi Collection of Thesis, Vol. 54, No. 1, 1965, p.30.
However, this is a mode of 。ーclassic, imperialist-type prior occupation
of terra nullius。ア and cannot be applied to Dokdo. Kim Chong-gyun,
。ーToso bunjaeng saraewa dokdo munjae。ア(precedents of dispute over
islands and the question of Dokdo), K. J. I. L., Vol. 25, 1980, p.40.
31 。ーNote Verbale。ア of the Japanese Government, op. cit., supra n.29, part
・イ.
A Study on Territorial Sovereignty over Dokdo in International Law . 319
However, the above view of the Japanese government is not
correct. There are different views on whether external
notification is one of the requisite conditions for occupation.
The majority of jurists do not accept this as the Japanese
government does ; rather they consider notification required.
ゥ・Positive Views
A positive view on notification is asserted by Oscar
Svarlien. He mentioned :
Furthermore, the French proclamation of sovereignty over
Clipperton was dated November 17, 1858, a fact which
rendered the subsequent Act of Berlin inapplicable. As to the
question of proper notification on the part of the French
government, the Arbitrator held that the publication in a
Honolulu journal of the fact that sovereignty over Clipperton
Island had been assumed by France, and the communication of
the accomplishment to the government of Hawaii by the
French Consulate, were sufficient under the then existing law.
Here again the special provisions relative to such notification
contained in Article 34 of the Act of Berlin were held to be
without application.32
On the basis of these main premises, the Arbitrator arrived
at the conclusion that Clipperton Island was legitimately
32 Svarlien, op. cit., supra n.17, pp.172~73.
320 . ヤシモミ・マ淼レマシメユ
acquired by France on November 17, 1858.
Thus, Svarlien regards notification as a neccessary
condition for occupation, since Clipperton Island was
legitimately acquired by France by its notification of the fact
of occupation of the island.
George G. Wilson is also positive on this point. He asserted :
Discovery cannot become tittle, but discovery must be
followed by occupation or other act which could be interpreted
as similar to occupation and the General Act of Berlin
Conference in Chapter 6 Article 34 made a special stipulation
concerning the acquisition of land on the coast of the African
continent.33
Thus, Wilson feels that discovery alone dose not generate
title and cites Article 34 of 。ーthe 1885 General Act of Berlin
Conference..He brings our attention to the Institute of
International Law that in 1888 proposed a draft of 。ーobligatory
declaration。ア concerning occupation.34
John Westlake also takes the same position and cites Lord
Stowell that in the newly discovered territory where title is
to be recognized, some act of possession can be consummated
by notification of the fact or proclamation thereof.35 He
33 George G. Wilson, Handbook of international Law, 3rd ed.(St. Paul,
Minn : West Publishing Co., 1939). pp.77~78.
34 Ibid., p.78.
35 John Westlake,.Discovery and Occupation as International Titles,.
in The Collective Papers of J. Westlake on Public International Law,
A Study on Territorial Sovereignty over Dokdo in International Law . 321
states that 。ーthe Act of Berlin。ア did not make any further
development from 。ーthe principle of publicity.。ア36 This could be
interpreted that 。ーthe Act of Berlin。ア does not carry any weight
since international law generally makes notification the
necessary condition for occupation.
As Westlake, William E. Hall also argues that 。ーthe Act of
Berlin。ア is not only valid for the contracting parties, but
should be considered as having a general binding power
under international law. He says :
an agreement, made between all the state which are likely to
endeavour to occupy territory, and covering much the largest
spaces of coast, which, at the date of the declaration,
remained unoccupied in the world, cannot but have great
influence upon the development of a generally binding rule.37
Westlake feels that a general international law requiring
notification was codified by 。ーthe Act of Berlin。ア while Hall
considers the Act became a general international law. John
B. Moore also advocates the obligation of notification by
citing Hall's above-mentioned argument.38 M. F. Lindly
L. Oppenheim, ed. (London : Cambridge University Press, 1914),
pp.163~64.
36 Ibid., p.166.
37 William E. Hall, A Treaties on International Law, 6th ed. (Oxford :
Clarendon, 1909), pp.115~16.
38 John B. Moore, Digest of International Law, Vol. 1(Washington, D.
C. : U. S. G. P. O. 1906), p.268.
322 . ヤシモミ・マ淼レマシメユ
viewed it proper to regard notification and effective
occupation as the necessary conditions for occupation, before
and after the signing of the 1885 Berlin Act. He states as
follows :
According to views adopted by Britain, Germany, France and
the United States, at the time of before and after the Berlin
conference, there were no colonial states which took exception
to the application of new rule of occupation, and it seems to
be justified to say that all recent acquisition of territory obeys
to this rule irrespective of whether it is the African coast or
not.39
Lindley says that notification and necessary conditions for
effective occupation defined in 。ーthe Act of Berlin。ア do not apply
only to 。ーthe African coasts。ア and the contracting parties to the
Act, but also apply to all areas and all states. This is the
same as Hall's view.
According to Charles de Visscher, 。ーthe Act of Berlin。ア of 1885
is not a treaty valid simply for individual countries concerned
with the Act, but it is a collective measure for establishing
the structure of international law. He states emphatically as
follows :
The Act itself can not be seen as a simple treaty of
39 M. F. Lindley, The Acquisition and Government of Backward
Territory in International Law (London : Longmans, 1926), p.157.
A Study on Territorial Sovereignty over Dokdo in International Law . 323
acknowledging the creation only of individual relationships
between its signatories of the Act. This Act was devised to set
up a legal rule relating to occupation of ownerless territory
while guaranteeing benefit of peace, protection of indigenous
people and freedom of trade. This is clearly a collective and
normative act establishing a highly internationalized legal
regime.40
Thus, Visscher also regards 。ーthe Act of Berlin。ア as general
international law having validity beyond the scope of its
signatories. He maintains the same position as Hall and
Lindley on the point that the obligation of notification
became general international law through 。ーthe Act of Berlin.。ア
Also, Quency Wright says that the Declaration of the West
Africa Conference, namely Articles 34 and 35 of 。ーthe Act of
Berlin。ア were 。ーgenerally accepted。ア and that it is a 。ーpresent
law.。ア41
Charles C. Hyde says that Articles 34 and 35 of the 1885
。ーAct of Berlin。ア defined notification and effective occupation as
the necessary conditions for occupation on the African coasts
and that this definition does not restrict its application to
specific areas of Africa.42
40 Charles de Visscher, Theory and Reality in Public International Law,
trans. by P. E. Corbelt(Princeton : Princeton University Press,
1956), p.321.
41 Quency Wright, 。ーTerritorial Propinquity,。ア A. J. I. L., Vol.12, 1918,
p.552.
42 Hyde, op. cit., supra n.20, p.342.
324 . ヤシモミ・マ淼レマシメユ
Hyde also points out that 。ーthe Declaration of the Institute
of International Law。ア does not approve as valid occupation by
sovereignty without official notification of taking possession
and regards Westlake's view that the Declaration is seen as
having unified views of the existing situation.43
Similar to Hyde, Charles G. Fenwick expresses his view on
notification of occupation as follows :
The provisions of the Berlin convention showed the
desirability of formulating a general rule of international law
upon the subject. In consequence, the question was taken up
by the Institute of International Law, which offered in 1888 a
Draft of an International Declaration Regarding Occupation of
Territories.44
As shown above, Fenwick considers it desirable to regard as
a general rule of international law 。ーthe Act of Berlin。ア of 1885
which defined notification as the necessary condition for
occupation. And he regards 。ーthe Declaration of Institute of
International Law。ア of 1888 as its result. Consequently, he
considers notification the necessary condition for occupation
in general international law. As Westlake did, he views 。ーthe
Act of Berlin。ア as codification of general international law.
In addition to the above-mentioned scholars, Travers Twis
43 Ibid.., p.343.
44 Charles G. Fenwick, International Law, 4th ed.(New York :
Appleton-Century-Crofts, 1965), p.410.
A Study on Territorial Sovereignty over Dokdo in International Law . 325
s,45 Paul Fauchille,46 Charles Rousseau,47 Julius Hatsche
k,48 George Friedrich Martens,49 F. V. List,50 Mitsuo
Maebara,51 AKira Ozawa,52 Taoka Ryoichi53 also regard
notification as the necessary condition for occupation.
(2) Negative Views
A negative view on notification of occupation is asserted by
Alf Ross. He held that external notification is not an absolute
requirement for occupation. He mentioned :
On the other hand, a formal declaration of occupation or
notification is not required, but of course is often to be
recommended by way of proof.54
45 Travers Twiss, The Oregon Question Examined (London : np. 1846),
pp.1547~58.
46 Paul Fauchille, Traite de droit international public, t. 1(Paris :
Rousseau, 1925), pp.738 ff.
47 Charles Rousseau, Droit international Public (Paris : Sirey, 1953),
p.246.
48 Julius Hatschek, Volkerrecht (Leipzig : Erlangen, 1923), S.170.
49 George Friedrich Martens, Recueil des principaux traites (etc.), t.
7(Gottingen : Dietrich, 1831), p.426.
50 F. V. List, Volkerrecht Systematilsch Dargestellt, 12Auf., ed. M.
Fleishmann(Berlin : np. 1925), S.160.
51 Maebara Mitsuo, Kokusaiho kogian(A Draft Lecture on International
Law)peace) (Tokyo : Keio Tsushin, 1974), p.86.
52 Ozawa Akira, Heiji Kokusaiho,(International Law : Peace,) Part
(Tokyo, Nihon Hyoron-sha, 1937), pp.236~40.
53 Taoka Ryoichi, Kokusaiho koza, A Lecture on International Law, Vol.
(Tokyo : Yuhikaku), p.338.
54 Alf Ross, A Textbook of International Law, General Part(London :
326 . ヤシモミ・マ淼レマシメユ
Despite his negative view on notification, Ross thinks it
becomes the proof of prior occupation. Ian Brownlie also
concurs with Ross :
Notice of a territorial claim or an intention to extend
sovereignty to other governments constitutes evidence of
occupation, but is not a condition for acquisition. As between
the contracting parties, conventions may provide for
notification of claims.55
Oppenheim holds that external notification is not an
absolute requirement :
No rule of Law of Nations exists which makes notification of
occupation to other States a necessary condition of its validity.
As regards all future occupations on the African coast the
parties to 。ーthe General Act of the Berlin Conference。ア of 1885
stipulated that occupation should be notified to one another.
But this Act has been abrogated so far as the signatories of
the Convention of St. German of September 10, 1919 are
concerned.56
Lord McNair,57 Green H. Hackworth,58 T. Guggenheim,59
Longmans, 1947), p.147.
55 Brownlie, op. cit., supra n.2, p.148.
56 Lawterpacht, op. cit., supra n.4, p.559.
57 Lord McNair, International Law Opinions, Vol.1(Cambridge :
Cambridge University Press, 1956), p.286.
58 Green H. Hackworth, Digest of International Law, Vol.1(Washington,
A Study on Territorial Sovereignty over Dokdo in International Law . 327
R. Y. Jenning,60 I. C. MacGibbon.61
As examined above, the majority view of scholars consider
notification necessary even without a specific treaty such as
。ーthe Act of Berlin.。ア
Therefore, the Japanese government's claim that 。ーmost of
international jurists agree that the principle by international
law making notification as an absolute condition for acquiring
territory does not exist62 is incorrect.
Even those scholars who do not regard notification as the
necessary condition for occupation accede that the usefulness
of notification63 should be taken into consideration.
B. Judicial Precedents
(1) The Island of Palmas Case
The Japanese government asserted that the arbitration
trial of the Island of Palmas Case ruled clearly that
notification to foreign countries is not required. 。ーThe
D. C. : U. S. Government Printing Office, 1940), pp.408~409.
59 T. Guggenheim, Traite de droit international public, t. 1(Geneva :
George, 1954), p.441.
60 Jennings, op. cit., supra n.11, p.39.
61 MacGibbon, op. cit., supra n.9, p.176.
62 。ーNote Verbale。ア of the Japanese Government, op. cit., supra n.29, part
・イ.
63 Ross recognizes the value of notification as 。ーproof.。ア Ross, op. cit.,
supra n.54, p.147 ; Brownlie also recognizes this. Brownlie, op. cit.,
supra n.2, p.148 ; Lauterpacht says notification is required by 。ーthe
comity of nations,。ア Lauterpacht, op. cit., supra n.4, p.559.
328 . ヤシモミ・マ淼レマシメユ
Japanese Government's Views on the Korean Government's
Version of Problem of Dokdo。ア dated September 25, 1954,
mentioned as follows :
In the cases of the Island of Palmas of 1928, ... moreover,
the Permanent Court of Arbitration gave decisions making it
clear that no notification to foreign countries is required for
the acquisition of territory.64
In order to investigate the problem of notification, it is
necessary to review the Island of Palmas Case. The case was
submitted to the Permanent Arbitration Trial over the
territorial right of Palmas Island between the United States
and Holland. This case started when General Leonard Wood,
who was Moro State Governor in the Philippines, then under
the control of the United States, found the Dutch flag hoisted
on Palmas Island during an inspection tour on January 21,
1906 and reported it to the U. S. Government. The case was
brought before the Permanent Arbitration Court in 1925 and
ended with Holland winning the case.65
Palmas Island is located about 20 miles inside boundary
shown in the peace treaty and is two miles long and less
than one mile wide, and there were less than 1,000
64 。ーNote Verbale。ア of the Japanese Government, op. cit., supra n.29, Part
・イ.
65 D. J. Harris, Case and Materials on International Law, 2nd ed.
(London: Sweet and Maxwell, 1979), p.174.
A Study on Territorial Sovereignty over Dokdo in International Law . 329
inhabitants than.
The Philippine Islands were ceded to the United States by
Spain under the peace treaty concluded on December 10,
1892, as a result of the U. S. - Spanish War.
The U. S. government asserted that Palmas Island was
ceded to it by the peace treaty, while the Dutch government
countered that the island was a part of the East Indian in
Holland's possession since the days of the East India
company and that Holland had exercised sovereignty on the
island continuously and peacefully.66
In passing judgment on the case, Arbitration Judge Max
Huber states:
As to the conditions of acquisition of sovereignty by way of
continuous and peaceful display of State authority, some of
which have been discussed in the United States Counter-
Memorandum, the following must be said: The dispaly has
been open and public, that is to say that it was in conformity
with usages as to exercise of sovereignty over colonial States.
An obligation for the Netherlands to notify to other Powers...
the display of sovereignty in these territories did not exist.
Such notification, like any other formal act, can only be the
condition of legality as a consequence of an explicit rule of
law. A rule of this kind adopted by the Powers in 1885 for the
African continent does not apply de plano to other regions....67
66 Herbert W. Briggs. The Low of Nations, Case, Documents and Notes,
2nd ed. (New York : Appleton Century, 1952), p.239 ; Harris, op.
cit., supra n.65, p.174.
330 . ヤシモミ・マ淼レマシメユ
As shown above, in the Island of Palmas Case, notification
to foreign countries was recognized as the condition of
legality for the Netherlands' act on Palmas Island, like any
other formal act. It was ruled that the obligation of
notification stipulated in the 1885 Protocol on occupancy on
the African continent does not exist where a clandestine
exercise of State authority over an inhabited territory like
Palmas Island seems to be impossible.68
In short, it only pointed out that the 1885 protocol on the
African continent does not apply to Palmas Island, and
clearly acknowledged that 。ーnotification is the condition of
legality like other formal acts.。ア
(2) Clipperton Island Case
The Japanese government argues that in the Clipperton
Island Case in 1931 notification to foreign countries was not
required. 。ーThe Japanes Government's Views on the Korean
Government's Version of Problem of Dokdo。ア dated September
25, 1954, wrote as follows:
In this respect most of international jurists agree that there
is no principle in international Law which regards such
notification as above as an absolute requirement for acquisition
67 Ibid., p.180.
68 L. C. Green, International Law through the Case (London : Stevens,
1951). p.369.
A Study on Territorial Sovereignty over Dokdo in International Law . 331
of territory. In the cases of the... Clipperton Island of 1931,
more over, the Permanent Court of Arbitration gave decisions
making it clear that no notification to foreign countries is
required for the acquisition of territory.69
The Clipperton Island Case is involving Mexico and France
over territorial rights to the Clipperton Island, which is
located 670 mile southwest of Mexico and is less than three
miles in diameter.
Coat de Kerweguen, a French naval officer, discovered
Clipperton Island during a voyage on November 17, 1858,
and reported it to the French consul in Honolulu, who in
turn notified the Hawaiian government, and it was
published in the Honolulu news paper, the Polynesian, on
December 8, 1858, that France proclaimed sovereignty on
the island.70
On November 25, 1897, France announced that the
commander of the French Fleet in the Pacific found three
Americans hoisting the American flag on Clipperton Island
and collecting guano.
The United States responded on November 24, 1897, that
the United States had no intention to exercise sovereignty on
Clipperton Island. Mexico dispatched a warship to the island
on December 13, 1897 and had the three Americans lower
69 。ーNote Verbale。ア of the Japanese Government, op. cit., supra n.29, Part
・イ.
70 A. J. I. L., Vol.26, 1932. p.391.
332 . ヤシモミ・マ淼レマシメユ
the American flag and hoisted the Mexican flag. This incident
was brought to the Court of Arbitration and concluded with
France winning the case.71
In the case, the arbitration judge clarified in the ruling that
there was no obligation of notification as follows:
The regularity of the French occupation has also been
questioned because the other Powers were not notified of it.
But it must be observed that the precise obligation to make
such notification is contained in Art. 34 of the Act of Berlin
which is not applicable to the present case.72
Above decision does not deny obligation of notification in
general, but it points out the incapability of such notification
as contained in Art. 34 of the Act of Berlin to that particular
case. Naturally, France is a party to the Act of Berlin,
concluded in 1895, but the island was occupied earlier, in
1858. So, France had no such obligation under the Act of
Berlin.73
The notification was served to the Hawaiian government by
the French consul and at the same time, the establishment of
French sovereignty over the island was publicly announced in
the newspaper, the Polynesian, in Hawaii, This is made clear
in the court decision :
71 Ibid., pp.391-92.
72 Ibid., pp.394.
73 Svarlien, op. cit., supra n.17, p.172.
A Study on Territorial Sovereignty over Dokdo in International Law . 333
There is good reason to think that the notoriety given to the
act, by whatever means, sufficed at the time, and that France
provoked that notoriety by publishing the said act in the
manner above indicated.74
Therefore, the Japanese government's claim that 。ーthe
judgment was made to clarity that notification to foreign
countries is not required。ア is not justified.75
As examined above, the majority view of scholars and
international precedents consider notification necessary even
without a specific treaty such as the Act of Berlin. Merely,
there is a difference of views over whether the Act of Berlin
has become general international law or vice versa.
The 。ーDraft of an International Declaration Regarding
Occupation of Territories。ア by the Institute of International
Law clearly stated in 1888 that notification is a necessary
condition for occupation. Therefore, the Japanese
government's note verbale of September 20, 1956, has no
legal basis in international law.
3. Refutation to the Assertion of the Intention
The Japanese government asserts that the intention of
Japan to acquire Dokdo and its official announcement were
74 A. J. I. L., Vol. 26, 1932, p.394.
75 。ーNote Verbale。ア of the Japanese Government, op. cit., supra n.29, Part
・イ.
334 . ヤシモミ・マ淼レマシメユ
taken by 。ーthe Shimane Perfecture Public Notice No. 40。ア on
February 22, 1905, in international law. The Japanese
government's note verbale dated February 10, 1954
maintains as follow :
We cannot but mention that the intention of the State to
acquire territory and its public announcement on February 22,
1905, were taken by the notification announced by Shimane
prefecture. As this was in accordance with the practice
followed by Japan at that time in announcing her occupancy of
territory, the above measure taken for public announcement of
the intention of the State, has satisfied the requirement under
international law in this respect.76
It is not clear whether 。ーthe public announcement of the
intention of the State。ア means the public announcement of the
intention of the State under domestic law or under
international law. But, it seems to mean the public
announcement of the intention of the State 。ーby international
law。ア since it said that the notification by Shimane prefecture
satisfied 。ーthe necessary condition by international law.。ア
If so, can 。ーthe Shimane Prefecture Public Notice No. 40。ア be
regarded as the public announcement of the intention of the
State by international law. To examine this point, one must
study (・。) whether the Shimane Prefecture Governor is an
organ of the State capable of making the public announcement
76 。ーNote Verbale。ア of the Korean Government, op. cit., supra n.1, para.4.
A Study on Territorial Sovereignty over Dokdo in International Law . 335
of the intention of the State under international law, and
( ) whether 。ーthe Shimane Prefecture Public ・[[ Notice。ア has the
character of notification by international law.
A. Legal status of the Government of Shimane Prefecture
In order to regard 。ーthe Shimane Prefecture Public Notice
No. 40。ア as a public announcement of the intention of
Japanese government to acquire Dokdo, it is necessary to
examine legal status of Governor of Shimane Prefecture in
international law.
Is the Government of Shimane Prefecture Japan's external
organ capable of taking such unilateral legal action as
declaration or notification under international law? External
relations of the State surely must be conducted by a state
organ.77 In other words, it is a general principle of
international law that the State can exercise a legal act
under international law only through an action by the State's
external organ.78 Francis Deak holds that the State's official
external relations can be conducted only by the authorized
state organs,79 and L. Kopelmanas maintains that 。ーthe
creative activity of the State can be conducted by
international organs only.。ア80
77 Hyde, op. cit., supra n. 20, p.1204.
78 Svarlien, op. cit., supra n.17, p.229.
79 Francis Deak, 。ーOrgans of State in their External Relations,。ア in Max
Sorensen(ed.), Manual of Public International Law(London :
MacMillan, 1968), p.392.
336 . ヤシモミ・マ淼レマシメユ
This is recognized by many scholars,81 and it also was
confirmed by the advisory opinion of the International Court
of Justice, concerning the German Settlers in Poland
Case(1923).82
The State's external organs are the chief of State, the head
of government, the foreign minister, the military
commanders, diplomatic agents and plenipotentiaries,83and
the chief of State, the foreign minister and the military
commander84 have naturally the right to represent the State,
and the diplomatic agents and plenipotentiaries require
letters of credence.85 The sovereign state decides who
becomes the State's external organ, such as the chief of
State, the head of government, the foreign minister, the
military commanders, diplomatic agents and plenipotentiaries,
80 Lazare Kopelmanas, 。ーCustom as a Means of the Creation of
International Law,。ア B. Y. I. L.,Vol. 18, 1937, p.131.
81 Hans Kelsen, General Theory of Law and State, A. Wedberge
(trans.)(Cambridge : Harvard University Press, 1949), pp.192~93 ;
Hall, op. cit., supra n. 37, p.290 ; Kelsen, op. cit., supra n. 10,
p.463 ; Werner Levi, Contemporary International Law : A Concise
Intoduction (Boulder : Westview Press, 1979), pp.101~102.
82 P. C. I. J. Series B, No. 6, 1923, p.22.
83 Deak, op. cit., supra, n. 79, p.383.
84 The military commander has the rights to represent the state by
international law. Kelsen, op. cit., supra, n. 10, p.463 ; John
Westlake, International Law, Part 2 (Cambridge : Cambridge
University Press, 1913), p.92 ; Levi, op. cit., supra n. 81, p.103.
85 Deak, op. cit.,supra n. 79, pp.383~84 ; Fenwick, op. cit., supra n.
44, p.522 ; Art. 7, 2, Para, of the Vienna Convention on the Law of
Treaties.
A Study on Territorial Sovereignty over Dokdo in International Law . 337
and this is outside the realm of international law.86
A unilateral act of declaration or notification is also one of
the forms of interstate activity or action under international
law87 ; it is of course, conducted by a State's external
organs.88 It is because the intention of occupation should be
the intention of the State organ.89 The Governor of Shimane
Prefecture who announced publicly 。ーThe Shimane Prefecture
Public Notice No. 40。ア was undoubtedly not the rightful
representative organ of the State under international law,
nor a representative Japanese organ capable of making the
external activity on behalf of the State.
Therefore, the Governor of Shimane Prefecture is merely an
administrative organ which could announce publicly
administrative action under Japan's domestic law, but cannot
represent the State, in marking declaration or notification of
the occupation of territory or the intention of sovereign
occupation by the State under international law.
The public announcement by the Governor of Shimane
Prefecture was not an act beyond power, but an act without
86 Kelsen, op. cit., supra n. 79, pp.383~84 ; Fenwick, op. cit., supra
n. 44, p.522 ; Art. 7, Para, 2 of the Vienna Convention on the Law
of Treaties.
87 Lord NcNair, The Law of Treaties(Oxford : Clarendon, 1961), p.32.
88 Charles Fairman, Competence to Bind the State .to an International
Engagement,.A. J. I. L., Vol. 30, 1936, p.446.
89 Brownlie, op. cit., supra n. 2, p.143 ; Ozawa Akira, Kokkaryoikito
sono hendo(State Territory & Its Changes). Kokusaiho koza (Lecture
on International Law), Vol. 1 (Tokyo : Yuhikaku, 1953) pp.219~20.
338 . ヤシモミ・マ淼レマシメユ
power.
But whether could it eventually be recognized as an action
of the State as it is an action beyond authority under
international law? An act of so-called ultra vires being
revered to an act of the State could be considered only when
。ーthe State's representative organ。ア takes a representative
action beyond its authority,90 and an action by those who art
not the State's representative organ cannot be recognized. In
other words, the ultra vires action is on the premise of the
State's representative organ and becomes a problem in case
the representative organ went beyond its authority.91
Therefore, the action taken by those who are not the
State's representative organs cannot confer the validity of
the conduct to the State. In the case of the conclusion of a
treaty, the ultra vires formal action of an organ possessing a
letter of credence. Therefore, it is 。ーnon- existent。ア as an act in
international law even based on the analogy of being a ultra
vires act.
B. Legal Nature of the Shimane Prefecture Notice
In order to regard 。ーthe Shimane Prefecture Public Notice
No. 40。ア as a unilateral transaction of the Japanese
90 Art. 47 of the Vienna Convention on the Law of Treaties.
91 Fiarman, op. cit., supra n. 88, p.440 ; William W. Bishop,
International Law, Cases and Documents (Boston : Little Brown,
1953), pp.90~91 ; 。ーHarvard Research Draft Convention on
Treaties,。ア A. J. I. L., Vol. 29 1935, Supplement, p.1008.
A Study on Territorial Sovereignty over Dokdo in International Law . 339
government in international Law, it is necessary to
investigate the legal nature of the Notice in international
Law.
Has 。ーthe Shimane Prefecture Public Notice No. 40。ア the
nature of notification under international law? 。ーNotification。ア
in a State's unilateral action is a communication to another
State or States of a legally significant specific fact or facts,92
and the purpose of notification is to make clear the position
of notifying country on that fact or facts.93
According to general international law, unilateral actions
such as notification, protest, acquiescence, and dereliction
have the same legal validity as bilateral acts of a treaty
because a unilateral action expresses the intention of a State
or States as in a formal agreement.94 That a State's
unilateral action binds the States under international law
like a treaty was ruled on by the International Court of
Justice in the Corfu Channel Case(1948).95
Since a valid notification is an interstate activity96 under
international law, it is contradistinguished from a notice
which is an administrative action under domestic law. A
notice is designed for many and unspecified people ゥ・to
inform them do a specific matter, ゥ・to announce the
92 Levi, op. cit., supra n. 81, p.214 ; Lauterpacht, op. cit., supra n.
28, p.874.
93 Schwarzenberger and Brown, op. cit., supra n. 3, p.140.
94 Fairman, op. cit., supra n. 88, p.39.
95 Green, op. cit., supra n. 68, p.631.
96 McNair, op. cit., supra n. 87, p.32
340 . ヤシモミ・マ淼レマシメユ
enactment of a law or regulation ; ゥ・and to make public an
administrative disposition or legislation.97 。ーThe Shimane
Prefecture Public Notice No. 40。ア is not a declaration or
notification of occupation because it was not conducted as an
interstate activity but was merely an administrative action
under municipal law. Thus, 。ーthe Shimane Prefecture Public
Notice No. 40。ア is non-existent as a declaration of occupation
or notification under international law.
As investigated above, therefore, the Japanese government
claim in the note verbale February 10, 1954 does not have
any meaning except under Japan's domestic law.
・ウ. Conclusion
As investigated above, the Japanese government's assertion
that Dokdo is Japanese territory has no legal basis, the
island is neither inherent nor occupied territory of Japan.
Dokdo is an integral part of the Korean territory when seen
against the historical documents, the contradictory Japanese
allegation under international law, and a series of
international agreements or documents including 。ーthe Cairo
Declaration。ア and 。ーSCAPIN No. 677.。ア Japanese government's
assertions to the sovereign right over Dokdo after entering
97 Sugimura Shosaburo, Gyoseigaku gaiyo (An Outline of Administrative
Law)(Tokyo : Yuhikaku,1951), p.261 ; Nobuta Kiro, Gyoseiho
(Administrative Law) Vol. 1(Tokyo : Kobundo, 1973), p.164.
A Study on Territorial Sovereignty over Dokdo in International Law . 341
the United Nations in 1954 is a violation of 。ーthe U. N.
Charter,。ア Article 2, Paragraph 4, which defines the principle
of territorial integrity. It is also a breach of Article 4 of 。ーthe
Korean-Japan Treaty on Basic Relations。ア which defines the
principle of mutual respect of sovereignty.
However, Japan continues to claim Dokdo's territorial
rights even today, which is straining the friendly relations
between the two counties. Japan should make a sincere effort
to promote friendship with Korea as a good neighbor by
admitting Korea's sovereignty over Dokdo. There can be no
question about Dokdo's sovereignty. Japanese government's
assertion that Dokdo is Japanese territory means nothing but
an intention of aggression.


TITLE:
DATE:2008/12/05 17:08
URL:

  • 最終更新:2009-03-04 08:18:32

このWIKIを編集するにはパスワード入力が必要です

認証パスワード