International legal review of Japan’s Dokdo claims and imperial legacies

Doh See-hwan

The author is a former Director General of the Office of Dokdo Research.

The recent evolution of international standards governing the naming of the East Sea shows that geographical representations are neither immutable nor immune from historical reassessment. The International Hydrographic Organization’s shift toward digital standards reflects a broader reality: Spatial concepts formed during imperialism may be reconsidered under contemporary international law.

If geographical concepts inherited from the imperial era can be re-examined, territorial understandings formed within the same historical order must also be evaluated according to contemporary legal principles.

Japan’s claims concerning Dokdo should not be reduced to competing national assertions. The question is whether claims originating in imperial expansion can still derive legitimacy from doctrines developed within that order. International law does not treat repeated unilateral assertions as sufficient to create legal title. Sovereignty over territory must rest on a lawful title assessed in light of historical context and applicable legal principles.

The year 1905 marked a critical turning point. As international legal norms strengthened, Japan, a latecomer imperial power, developed an extreme legal positivism intertwined with aggressive expansion. Beginning with its purported incorporation of Dokdo, Japan used international law to justify its invasion of Korea and later continental expansion. The legality of the 1905 measure therefore cannot be assessed apart from its broader political and legal context.

The arguments supporting Japan’s claim were also constructed within an international order shaped by imperial expansion. Doctrines concerning territorial acquisition and effectivités often reflected the geopolitical realities of expanding empires. The issue is not whether Japan has continued to assert its claim, but whether that claim’s legal foundation satisfies international law.

The doctrine of intertemporal law, articulated by Max Huber in the Island of Palmas case in 1928, provides an appropriate framework. Although legal title must be assessed according to the law applicable when it arose, its continued validity and exercise must also be considered in light of later developments in international law. Claims originating in the imperial era therefore do not automatically retain legitimacy in the contemporary legal order.

Modern international law was not simply a continuation of the imperial system. After World War II, self-determination, the prohibition of territorial acquisition through force and the rejection of colonial domination transformed the international legal order. The Cairo and Potsdam declarations reflected this shift by establishing the framework for the postwar settlement of territories affected by Japanese expansion.

The settlement process shows how this shift was applied. A 1948 Far East Air Force intelligence report preserved in the U.S. National Archives and Records Administration recorded that, as of September 1947, Dokdo had been definitively established as a part of Korea. It shows that, even before the San Francisco Peace Treaty was drafted, the United States had internally concluded that the islets formed part of Korea.

That assessment was consistent with Allied territorial policy reflected in the Cairo and Potsdam declarations, memorandums 677 and 1033 issued by the Supreme Commander for the Allied Powers after World War II and the first five drafts of the peace treaty, which explicitly identified Dokdo as Korean territory. Japanese lobbying amid the changing strategic environment of the early Cold War influenced the sixth draft, which alone designated Dokdo as Japanese territory.

That revision did not survive. From the seventh draft onward, all explicit references to Dokdo were removed. The omission did not affirm the sixth draft but neutralized it, leaving no treaty provision capable of creating or confirming Japanese title. Silence in the treaty could not establish Japanese sovereignty or generate new legal title. A temporary political adjustment during negotiations cannot independently create territorial sovereignty under international law.

The treaty’s drafting history thus demonstrates the difference between political influence and legal entitlement. Diplomatic pressure and strategic circumstances may shape negotiations, but cannot substitute for lawful acquisition of title.

Nor does Japan’s repeated postwar claim change this conclusion. International law distinguishes unilateral assertions from established title. A claim does not become lawful merely through repetition. Korea has consistently rejected Japan’s claim while exercising sovereign authority over Dokdo through peaceful and continuous administration and other manifestations of state authority.

The evolution of international standards concerning the East Sea shows that concepts inherited from imperialism are not permanent or immune from reassessment. The same principle applies to territorial claims. Contemporary international law need not preserve every assumption produced by imperial expansion. It must distinguish rights founded on lawful title from claims sustained only by historical inertia or political influence.

Ultimately, the Dokdo issue concerns the integrity of the international legal order. Its credibility depends not only on stability but on distinguishing lawful rights from unilateral claims rooted in imperial structures and unsupported by valid title. Imperial expansion, geopolitical expediency and repeated assertions cannot independently create legal title. Legal legitimacy rests on lawful title, historical context and the faithful application of contemporary international legal principles.