Thursday, May 11, 2006

Takeshima・Dokto----in veiw of international law

dokdo or takeshima?
oppekepe in Japanese at naver
Gerry at occidentalism
Gerry at Korean langage note
Mark lavmo
Dokdo Belongs to Korea
Flying Yangbang

Shin young ha
Dokdo in Korea
Kusan AB
Translation copyright by William Sakovich


Important documents and maps
guiding principle
watanabe document
1667 document
Ahn's "Matsuhima"1696
1894 document
1725 document
1883 document
1875map interpretation of daojoukan document
Jukudo old and new

watanabe document
1481 document(k)
東国輿地勝覧Korean territory because it can be seen from the land
1900 document(k)newspaper
1954~ document(u)
Takeshima/Dokdo---1726(?) document 竹嶋記事
red stamp ship
Ahn yonbok
1696 document(K)
effective control during edo period
1883 document内達案
1883 illegal Japanese
Watanabe document 2
1930 document/chukdo
1924map (J)
1894 document 朝鮮水路誌
the 1899/1907 Daehanjiji (大韓地誌)(k)
1725 document/朝鮮通行大紀
1667 document/隠州
19 century Japanese confusion about the islands
the Japanese fishery area is invaded by Korean illegal fishermen
1882 Japanese map
1905 document a public anouncement (j)
1882-k-inspecter-document-and-1784 survey
1835 Japanese map

1893 Japanese judgement
1948 prangdo竹島 波浪島1751^3 document
1899 newspaper (K)takeshima/dokdo---scap
1900 document(k)
Soel views might as right
Interpretation of 輿地考 of 東国文献備考 in 1770 and 彊界考 of 旅菴全書by申景濬
1906 document (k)
see also Notification is it necessary?
Funasugi sums up his research

I am going to cite some lines which are relevant to takeshima-dokdo issue from textbook on Internationl law 5th edition
1876 takeshima map (j)
1894 document (j) Chosun water way
Japanese maps that lack takeshima/Dokdo on them
1965tacit agreement

The acquisition of sovereignty over territory

The exercise of effective control---occupation and perscription.
The control of territory and the peaceful and effective excercise of the functions of a sate theren is the primary means of acquiring title to territory in international law.They can be subdivided into two lasses.When the exercise of authority takes place in a territory which does not belong to any other state8terra mullius)we may say that title is based on effective "occupation". When the excercise of authority takes place in a territory which formally belongs to another state, we may say that title is bsed on 'prescription.However the differece between these two concept is only one of degree and the essentail elelment of both is the exercise of state function.p144

Apparent display of severeigtry
The state claiming the title must establish that it has behaved as a state with respect to the territory although .....not every state function will be relavent for this purpose,....

It is also clear that the extent of degree of display of state power required may vary according to the type of territory in question.It is a question of fact in eace ase.Thus in the Clipperton Island arbitration(France v mexico)(1932) 26AJIL.390, the dispute was over a small uninhabited coral reef.The arbitrator found French title stablished, even though the acts of effective occupation were limited to minimal acts of the French Navy and subsequent proclamations of soverignty in various public journals.These acts, when coupled with an intention to exercise soverignty, were sufficient in respect of this territory.

Intention to acquire soverignty.
...the actual display of sovereignty must be accompanied by an aimus or intention to as as soverign. In the usual event, this can be presumed from the simple fact that the state is excercising such aouthority in the territory.p147

Continuous display and the 'critical date'
...title to territory could not be established by a 'once and for all'display of soverignty.It had to be 'continuous'

...the display of sovereeignty must exist up to 'the critical date'.The critical date is is the date at which the question of soverignty is to be assessed.All matters arising after that date cannot be taken into account in deciding title to territory,

In essence, the critical date is the date at which the dispute between the two parties becomes crystalised .p148

Peaceful display
The exercise of state power over territory must be peaceful in the sense that it is not challenged by other states.In terms of territory which is formally terra nullius, this means simply that the display of state functions must proceed in uninterrupted fashion.Moreover ,in the case of 'occupation' a display of state soverreignty does not lose its peaceful character merely because some state verbally objects to the claim of sovereingty.There must be some acts by the objecting state, of an extensive nature, before title based on 'occupation' lose its peaceful character.
In contrast, with cases of presription, the requirement of a peaceful display of soverignty is much more important.As we have seen, prescription means the acquistion of soverignty by one state over territory which formally belongs to another.Therefore,objections by the state ousted from the territory are an important factor and may well prevent the 'new' state from gaining titile by presription....Converselly, it is clear that lack of objection (or acquiescence) by the former title holder can be vital in establishing prescriptive titile .......the form of objection is irrelevant, so long as the dispossessed state make clear its opoostion to the acuqistion of title by someone else.So,objection may consit of diplomatic protests,statements in internationl organizations, the enactment of national legistlation applying to the territory or referral to a tribunal.

Discovery is akin to occupation in that it is usually applied in respect of previously uninhabited territories. However, it is clear from the Island of Palmas Case that discovery per se gives only inchoate title to territory. This means that unless thee first act of discovery is followed up within a reasonable period of time by acts of effective occupation, the potential title to territory accorded by discovery does not mature into full sovereignty. In practical terms, in the absence of effective occupation, another state may enter the territory and exercise the functions of statehood therein. If this happens, the title
based on effective occupation will have priority over inchoate title based on discovery.

(page 150 Textbook on International Law/Martin Dixon/5th edition)

Intertemporal law
...the law to be applied to a given dispute is the law in existence at the time the dispute is to be settled---the critical date.

68. It does not seem necessary to recall in great detail what the Chamber of the Court had to say about the value of map evidence in the case concerning the Frontier Dispute (Burkina Faso v. Mali), viz., that maps cannot constitute a territorial title but are usually merely extrinsic evidence which may be used, along with other circumstantial evidence, to establish or reconstitute the real facts (I.C.J. Reports 1986, p. 582, para. 54). Since Qatar has in my view not been able to demonstrate that it has title to the Hawar Islands based on the display of authority - even in the most limited way - in combination with a legally recognized mode of acquisition, the cartographic evidence must in my view be
1867 Japanese map 竹島=Arrogonaut =nonexisitent 松島=Ullengdo Linocourt =Takessshima-Matushima1870 Japanese map(from the left)竹しま=Arrogonaut =nonexisitent 松しま=Ullengdo
リアンコオルトロック=Linacourt Rock=takeshima/Dokdo

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