The ICJ and the Dokdo/Takeshima Dispute

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The ICJ and the Dokdo/Takeshima Dispute

Referring the dispute to the international court would have complications, but may be the only feasible solution.

The ICJ and the Dokdo/Takeshima Dispute
Credit: REUTERS/The Blue House/Handout

Earlier this month, there was an article in The Korea Herald asking the question “will U.S. back Korea over Dokdo?” As Ankit Panda outlined in The Diplomat, it is quite clear that Washington would not choose between allies based on the U.S.-Korea Mutual Defense Treaty. Moreover, the analogy that some in South Korea are making, to U.S. inclusion of the Senkaku/Diaoyu Islands under the U.S.-Japan Treaty, is manifestly flawed. Yet, while the answer may be clear, the article signifies another disturbing trend over the past few years in Seoul which paints Japan, especially under the Abe administration, as a security threat. Meanwhile, Abe has spent the past few months, following his visit to Yasukuni Shrine last December, trying to keep his head down on worsening ties with Korea in an attempt to patch up relations.

Diplomatic jousting over Dokdo/Takeshima has been a constant over the past decade and has ebbed and flowed with the change of political leaders in South Korea and Japan. But, as Michael Devitt has explained, the status-quo on the dispute is relatively firm: “the only way South Korea will relinquish control is if military force is used to eject it from the islets. Even then, enough military capability would have to be maintained in the vicinity on a more or less permanent basis, to ensure that South Korea could not take the islets back. It is hard to imagine that Japan would ever be willing to attempt such a military undertaking, or could amass the capability to actually sustain control if it ever did seize the islets. In effect, South Korea’s de facto control is permanent.”

So, why not bring the case jointly to the International Court of Justice (ICJ) to finally put the issue of sovereignty to rest? In fact, this has been a previous approach by Tokyo, which has asked Seoul three times to agree to a joint submission to the ICJ. South Korea has refused each time, as it believes there is no dispute over the sovereignty of the islets. During Tokyo’s last approach in 2012, the South Korean Foreign Ministry responded, “Dokdo is clearly part of Korean territory historically, geographically and under international law, and no territorial dispute exists. The Japanese government’s proposal to take the Dokdo issue before the ICJ is not worth attention.” Ironically, this is similar to Tokyo’s approach with China over the Senkaku Islands in the East China Sea.

Clearly frustrated with Seoul’s refusal to consider a joint submission, Tokyo has begun to think about bringing the dispute unilaterally to the ICJ (although such talk is largely symbolic and meant for leverage). This threat became a diplomatic tool for Japan after former South Korean President Lee Myung-bak dramatically changed the status quo around the disputed isles through his visit to Dokdo in August of 2012. Tokyo responded diplomatically but the move also helped contribute to the growing feeling of “Korea fatigue” amongst some politicians in Japan. Indeed, one of the outgrowths out the Lee visit to Dokdo was growing political support in Tokyo for events trumpeting Japan’s sovereignty over the islands. This past February, for example, Abe sent a parliamentary secretary to the Takeshima Day festivities in Shimane prefecture for the second year in a row. Thus far, Abe has demurred on elevating the status of central government support for the holiday in order to avoid a deeper diplomatic trench with Seoul.

Most critiques of such a move will point to Seoul’s position – which has been immoveable up until this point. But Seoul’s refusal to admit there is a dispute over sovereignty does little to support its legal case. Moreover, South Korea’s refusal to even consider bringing the case before the ICJ ironically bolsters Japan’s position (albeit not legally) because it can be interpreted that Seoul fears its legal claim may not hold up after ICJ arbitration. This perception is strengthened further as South Korea tries to actively assert its sovereignty through steps to solidify its administration of the islands. Examples of this include plans to build an airport on the nearby island of Ulleung-do, facilitating more regular travel to the disputed isles.

Sending this dispute to the ICJ might sound like an excessive concession to Japan’s position. However, the decision would also serve to effectively limit Japan’s ability to raise the issue after a verdict is reached. Agreeing to a joint ICJ submission would allow both sides to bring forth their supposed “overwhelming” historical evidence of sovereignty and allow the court to be an independent arbitrator. Tokyo obviously would welcome such a policy change in Seoul, but it would be incorrect to view this as an easy decision for Japan. The precedent of the joint submission might focus more attention on Japan to admit to the fact that it has a “dispute” with China over the Senkaku islands. However, the silver lining of this consequence is that it opens up a policy avenue for Japan to potentially agree to a joint ICJ submission with China over the East China Sea row.

To be clear, a joint submission to the ICJ will not solve the deeply ingrained issues in the Japan-Korea relationship. But the gesture would demonstrate both parties’ commitment to international law and a rules-based resolution to disputes. This would be in sharp contrast to China’s salami slicing tactics in the East and South China Sea, and would serve to reinforce often-stated norms that both sides support an adherence to international law. Moreover, a joint ICJ submission would prevent any future diplomatic brinksmanship on the issue that could occur as a backdrop to periods of bilateral strain. An example of this would be if Tokyo decides to follow through on its previous threat to unilaterally bring the case to the ICJ. In such a scenario, assuming South Korea refuses to participate, the situation would then be elevated to the UN Security Council for future recommendations. This is a situation neither side desires. Bringing the row to the ICJ comes with complications but in the long run might be the only feasible way to resolve the dispute.