The Liancourt Rocks Dispute: Is Terra Nullius a Relic of Colonialism?

The two nations of South Korea and Japan have been embroiled in bitter diplomatic disputes for the past several decades. One matter of contention is the Liancourt Rocks Dispute: a question of sovereignty over a group of small islands situated between the coasts of the two countries. Early records provided by South Korea and Japan voice a common narrative. While evidence of early human activity, primarily fishing, remains, the rocky terrains rendered permanent residence on the islands nearly impossible. Currently, only ten Korean citizens are officially registered by the South Korean government as residents of the Liancourt Rocks. No further requests of residency have been accepted. [1] Over the years, Japan has sought to sway South Korea to file a joint dispute to the International Court of Justice, seeking arbitration of the issue by a third party. [2] These efforts have encountered a hiatus as the South Korean government has retained its belief that Japan does not have any legal basis to its claims. Most recently, the Ministry of Foreign Affairs of Japan has contended that the Liancourt Rocks constituted terra nullius, or unclaimed by any sovereign state, at the time of Japan’s alleged annexation in 1905 and therefore is lawfully their territory. [3] This shift in argument has churned further discussion on two questions: First, can terra nullius be applied to the East Asian region? Second, if so, do the Liancourt Rocks constitute as terra nullius under the specifications outlined by historic precedents? A review of landmark territorial disputes seems to merit the argument that, while terra nullius may retain legitimacy in its application to disputes in the East Asian region, the evidence presented by Japan fails to demonstrate that the Liancourt Rocks were terra nullius in 1905.

Terra nullius is one of the eight types of territorial acquisition under international law and translates to “territory belonging to no one.” Two elements must be proven to dispute a territory’s status as terra nullius: “The intention to and will to act as a sovereign, and some actual exercise or display of such authority.” [4] If either of these elements fails to be proven, then the territory may be deemed as terra nullius. These elements of terra nullius were outlined in the Advisory Opinion by the Permanent Court of International Justice (PCIJ) in the Legal Status of the South-Eastern Territory of Greenland (Denmark v. Norway) (1933). [5] Both parties of this case anchored their arguments in historical evidence, such as early documents issued by the Danish government banning trade in the disputed region. In the Advisory Opinion, the PCIJ held that “effective occupation in the polar regions requires relatively little exercise of actual sovereign rights, and that Denmark, therefore, did indeed have sovereignty over the entire island.” [6] This decision effectively concluded that the disputed region was not terra nullius and that the bar for proving “the exercise or display of authority” is quite low for the polar region. [7]

This case parallels the Liancourt Rocks Dispute in regards to the importance of historical evidence and its interpretation in proving territorial sovereignty. Both South Korea and Japan have utilized historical documents of trade activity in the region and past declarations issued by their respective governments. To establish terra nullius, Japanese officials primarily argue that South Korea had abandoned the Liancourt Rocks by 1905. South Korean officials have, on the contrary, presented documents that “explicitly prohibit travel to the [Liancourt Rocks]” and records of regular inspection of the islands for any trespassers. [8] Many international scholars have interpreted these documents to demonstrate South Korea’s “regulatory and legislative authority” over the disputed islands, which fulfills both elements that disprove a territory’s status as terra nullius. [9] Moreover, in alignment with the Legal Status of the South-Eastern Territory of Greenland, Japan’s arguments that South Korea had abandoned the Liancourt Rocks seem to hold little legitimacy. The Liancourt Rocks are and have been a largely uninhabitable territory. This fact, alone, may suffice in demonstrating that the Liancourt Rocks, like the polar region, requires “relatively little exercise of actual sovereign rights” due to the characteristics of its terrains. [10]

Japan has additionally sought to utilize the 1951 Treaty of San Francisco as evidence of its sovereignty over the Liancourt Rocks. This treaty formally established peace in the East Asian region after World War II and returned territories that were unlawfully confiscated by Japan to their original nations. However, the treaty does not include Liancourt Rocks in its list of territories to be returned. [11] The document’s ambiguity has allowed Japan to interpret that the Liancourt Rocks were already lawfully their territory and thus could not have been returned to any other nation. Nonetheless, the implications of the Advisory Opinion of the Legal Status of the South-Eastern Territory of Greenland upholds an opposing argument—that the Liancourt Rocks were not terra nullius in 1905. Hence, the vagueness of the 1951 treaty may indicate an affirmation that the Liancourt Rocks have always fallen under the sovereign authority of South Korea, not Japan.

Another landmark case involving terra nullius is Mabo and Others v. Queensland (No. 2) (1992), a case that upheld the rights of the indigenous Meriam people against the defendant, the State of Queensland. [12] This case challenged the definition of what constitutes a “sovereign authority.” The State of Queensland had argued that the Murray Islands, the disputed territory, were annexed by the British Crown and thus were subject to the law of England. The law of England, at the time, did not recognize the sovereign authority of the Meriam people and characterized them as “primitive, backward peoples” that exercise sovereignty “so low in the scale of social organization.” [13] In other words, the defendant had construed the Murray Islands as terra nullius because the social and political structure of the Meriam people did not align with its own definition of a modern state. Discrimination against indigenous people had constructed the foundation of the argument. The majority opinion of the High Court of Australia denied the defendant’s claim on two grounds. First, territorial acquisition inherently falls under the jurisdiction of both international law and the common law of a nation. Thus, the majority opinion stated that “international law is a legitimate and important influence on the development of the common law.” Second, the majority decision stated that willful neglect of the Meriam people’s sovereignty by the municipal law of England constituted violations of universal human rights under international law. [14] In short, the High Court of Australia had ruled that the Murray Islands belonged to the Meriam people and that the defendant’s claim of terra nullius was, in itself, a violation of international human rights law.

As in Mabo and Others v. Queensland (No. 2), the application of terra nullius in territorial disputes has drawn sharp criticism amongst international scholars as it has overwhelmingly been used to justify colonialism. [15] The Liancourt Rocks Dispute, though seemingly divergent from Mabo, shares a similarity that must be noted. Both cases harbor an analogous dynamic between the two opposing parties, in which one party assumes the inferiority of another. The prevailing understanding amongst international scholars is, in fact, that the alleged annexation of the Liancourt Rocks in 1905 was likely a violation of international law, not solely because of its failure to meet the standards of terra nullius, but because Japan’s imposition of South Korea as its protectorate in 1905 violated the rights of South Korea as a nation under international law. This understanding echoes the dynamic present in the Mabo case. [16] Once again, it seems that the legal principle of terra nullius may have been used to justify the imperialist agenda of a nation.

The Liancourt Rocks Dispute has repeatedly caused friction in the diplomatic relationship between South Korea and Japan, with the most recent public incident having emerged from the Tokyo 2020 Olympics. [17] Though this dispute has not formally been filed to an international court, an analysis of landmark precedents delineates that, even if filed, court decisions may not fall in favor of Japan’s argument that the Liancourt Rocks constituted terra nullius in 1905. This century-long conflict between the two nations does not seem to have benefited any one party. It has only forged rancor within the diplomatic relationship, while decaying records and hearsay continue to be morphed to fit the arguments of one nation or the other. Nonetheless, the recent developments of this dispute have shed light on one clear conclusion: That the legal principle of terra nullius may only be an idea that exists to justify colonization, regardless of the region that it has been applied to. Perhaps, terra nullius is only a relic of the past that should no longer be considered a valid legal principle in territorial disputes.

Edited by Julia Chang

Sources:

[1] The National Assembly of the Republic of Korea, People in Dokdo, Dokdo: The National Assembly (The National Assembly of the Republic of Korea), online at korea.assembly.go.kr:447/dokdo/about_03.jsp (visited July 19, 2021).

[2] Ministry of Foreign Affairs of Japan, Proposal of Referral to the International Court of Justice, Ministry of Foreign Affairs of Japan (2015), online at www.mofa.go.jp/a_o/na/takeshima/page1we_000065.html (visited July 17, 2021).

[3] Laurent Mayali and John Yoo, “Resolution of Territorial Disputes in East Asia: The Case of Dokdo,” 36 Berkeley Journal of International Law (BJIL) 3, 1-48 (2018).

[4] Ariel Zemach, “Assessing the Scope of the Palestinian Territorial Entitlement,” 42 Fordham International Law Journal 4, 1218-1222, 2019.

[5] Legal Status of the South-Eastern Territory of Greenland (Denmark v. Norway), Judgment, 1933 P.C.I.J. (Ser. A/B) No. 53.

[6] Janice Cavell, “Historical Evidence and the Eastern Greenland Case,” 61 Arctic 4, 433-441, 2008.

[7] Legal Status of the South-Eastern Territory of Greenland (Denmark v. Norway), Judgment, 1933 P.C.I.J. (Ser. A/B) No. 53.

[8] Laurent Mayali and John Yoo. "Territorial Disputes in East Asia," BJIL, 18.

[9] Id.

[10] Legal Status of the South-Eastern Territory of Greenland (Denmark v. Norway), Judgment, 1933 P.C.I.J. (Ser. A/B) No. 53.

[11] Laurent Mayali and John Yoo. "Territorial Disputes in East Asia," BJIL, 16.

[12] Gary D Meyers and John Mugambwa, “The Mabo Decision: Australian Aboriginal Land Rights in Transition,” 23 Environmental Law 4, 1203-1247, 1993.

[13] Mabo and Others v. State of Queensland (1992) 175 C.L.R. 1 (High Court of Australia).

[14] Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit, “Overturning the Doctrine of Terra Nullius: The Mabo Case,” 1-8. 

[15] Asafa Jalata, “The Impacts of English Colonial Terrorism and Genocide on Indigenous/Black Australians,” 3 SAGE Open 3, 2013.

[16] Jong-pil Yoon, “Establishing Expansion as a Legal Right: An Analysis of French Colonial Discourse Surrounding Protectorate Treaties,” 46 History of European Ideas 6, 811-826, 2020.

[17] Hyonhee Shin, “South Korea Summons Japan Envoy over Islands on Olympics Map,” Reuters, June 1, 2021, sec. Sport, https://www.reuters.com/article/uk-olympics-2020-southkorea-japan-idUKKCN2DD2QP.