The essential facts to understand Takeshima (3)The Takeshima Dispute andInternational Law
Written by

NAKANO Tetsuya,
Professor, Kansai University

Published by the Fourth
Shimane Takeshima Issue Research GroupThe Takeshima Dispute and International Law
NAKANO Tetsuya
1.

Introduction...........................................................................................................22.

International Law and State Territory.....................................................................63.

International Law Rules Concerning the Attribution of State Territory...................9(1) The Traditional Modes of Title to Territory.................................................................... 9(2) Potential New Title to Territory.................................................................................... 13

4.

Criteria for the Settlement of Territorial Disputes Presented
in the International Court of Justice – Concerning the Minquiers
and Ecrehos Case..................................................................................................19(1) Facts............................................................................................................................ 21(2) The Nature of the Dispute.......................................................................................... 22(3) Points at Issue.............................................................................................................. 22(4) Summary..................................................................................................................... 37

5.

Examination of the Practice by Japan....................................................................46(1) 1905 and Beyond........................................................................................................ 46(2) Prior to 1905............................................................................................................... 47

6.

Concluding Remarks............................................................................................52

Cover photo: International Court of Justice (owned by the Takeshima Data Room of the Shimane
Prefectural Government)

1. Introduction
Takeshima is a group of islands comprising two islands called Mejima Island(Higashijima Island) and Ojima Island (Nishijima Island) as well as dozens
of small islands surrounding them. Takeshima is located in the Sea of Japan
approximately 158 kilometers northwest of Oki Islands, at 37 degrees 14
minutes north latitude and 131 degrees 52 minutes east longitude, andbelongs to Okinoshima-cho, Shimane Prefecture. Takeshima has a total area of
0.21 square kilometers, and each island of the archipelago is a volcanic island
towering from sea level and surrounded by cliffs and precipices. In addition,
Takeshima lacks vegetation and drinking water(1).
Takeshima is called “Dokdo” in the Republic of Korea (ROK). Currently, theROK is shutting Japanese vessels and fishing boats out of waters surrounding
Takeshima by permanently stationing armed policemen on the island. The
ROK has been making the following assertions as the basis for such actions.
“Dokdo is an integral part of Korean territory, historically, geographicallyand under international law. No territorial dispute exists regarding Dokdo,
and Dokdo is not a matter to be dealt with through diplomatic negotiations or
judicial settlement.
The government of the Republic of Korea exercises Korea’s irrefutable
territorial sovereignty over Dokdo. The government of the Republic of Korea
will deal firmly and resolutely with any provocation and will continue todefend Korea’s sovereignty over Dokdo(2).”In response, Japan has retorted as follows:“Takeshima is indisputably an inherent part of the territory of Japan,2Surrounding Area

Location Map

Detailed Map(All based on the website of the Ministry of Foreign Affairs of Japan(https://www.mofa.go.jp/region/asia-paci/takeshima/index.html))

3

in light of historical facts and based on international law. The Republic ofKorea has been occupying Takeshima with no basis in international law. Anymeasures the Republic of Korea takes regarding Takeshima based on such anillegal occupation have no legal justification.
Japan will continue to seek the settlement of the dispute over territorial
sovereignty over Takeshima on the basis of international law in a calm andpeaceful manner.
Note: The Republic of Korea has never demonstrated any clear basis for
its claims that it had taken effective control over Takeshima prior to Japan’s
effective control over Takeshima and reaffirmation of its territorial sovereignty
in 1905(3).”As seen above, at least from the standpoint of Japan, “The dispute over
the territorial sovereignty over Takeshima” (hereinafter referred to as “theTakeshima Dispute”) has arisen because Japan and the ROK have madeconflicting assertions over Takeshima. Japan is trying to settle the dispute “onthe basis of international law(4).” Japan also cites “international law,” alongwith historical facts, as the basis for its assertion that Takeshima is “an inherent
part of the territory of Japan.” International law is defined as “a set of laws
governing relations within an international community whose main members
are nations(5).” Then, how is international law related to the Takeshima dispute?
(1) The Ministry of Foreign Affairs of Japan, “Takeshima Information” (available at https://www.mofa.go.jp/a_o/na/takeshima/page1we_000014.html ).
(2) The Ministry of Foreign Affairs of the Republic of Korea, “The Korean Government’s
Basic Position on Dokdo” (available at https://dokdo.mofa.go.kr/eng/dokdo/government_
position.jsp).
(3) The Ministry of Foreign Affairs of Japan, “Japan’s Consistent Position on the Territorial
Sovereignty over Takeshima” (available at https://www.mofa.go.jp/region/asia-paci/4

takeshima/index.html).
(4) This position has been clarified repeatedly in the Diet as well. For example, see(Answers by Shimokawa, the government’s unsworn witness No.1, the Third
Subcommittee, the Budget Committee, the 189th House of Representatives, dated
March 10, 2015).
(5) ASADA Masahiko ed., Kokusaihou, Dai San-han (International Law, Third Edition),
Toshindo, 2016, p. 4.

5

2. International Law and State Territory
The coverage of international law today indeed extends to every single issue
that arises in the international community. With respect to the Takeshima
Dispute, first of all, important rules relate to the scope of state territory and thedefinition of a state.
State territory comprises land territory, the territorial waters, and air
space. State territory composed of these three portions represents one of thecomponents of a state. Article 1 of the Convention on the Rights and Dutiesof States (Montevideo Convention), concluded by 16 nations of the Americas
in 1933, defines a state as an entity that possesses a defined territory, apermanent population, government and capacity to enter into relations withthe other states as the requirements of a state(6). In other words, even whena group proclaims itself to be a “state,” international law does not recognize
it as a “state” unless a certain number of the population continue to live in acertain range of areas (land) – “territory” – and there exists a government thatcan govern the territory and population and establish diplomatic relations withother states(7).
Thus, in principle, a state without territory cannot exist in theinternational community. The fundamental element of state territory is theland territory. Since a certain sea area surrounding the territory is termed as
territorial waters and the sky above the territory and territorial waters istermed as airspace, the territorial waters and airspace cannot exist without theland territory. In the first place, if there is not any land territory, “permanent
population,” another component of a state, have no place to live in(8).
The state sovereignty extends to state territory. Sovereignty is theauthority that can govern and control all people and things that exist in6state territory and also the authority to act without being subject to otherauthorities(9). Of sovereignty, rights related to state territory, such as the right togovern and the right to dispose of state territory, are called “Ryouiki Shuken”
in Japanese, or territorial sovereignty(10).
And now, as seen in 1, Japan says that “the dispute over ‘territorial
sovereignty’ over Takeshima” has arisen. “Ryouyuuken” is the Japaneseterm translated from the English term territorial sovereignty(11). In otherwords, “Ryouyuuken” and “Ryouiki Shuken” have the same meaning. While“Ryouyuuken” is widely used as an everyday term, the term of “territorial
sovereignty” seems to be often translated as “Ryouiki Shuken” or simply as“Shuken.” In this booklet, we use the translated term of “Ryouiki Shuken,”
except for the case of direct quotes.
In light of rules of international law seen above, “the dispute overterritorial sovereignty over Takeshima” is, in essence, the issue over theattribution of state territory, or the issue of which of Japan or the ROK
Takeshima belongs to. It can be paraphrased as the issue over the scope of state
territory and the extent to which the territorial sovereignty extends.
(6) As the provisions of the Convention apply only to the states that agreed to be bound by
the Convention (the Parties to the Convention), this provision setting the definition ofa state should essentially be observed only by the 16 signatory states of the Americas.
However, originally, this provision is thought to be the written form of what had beenrecognized by the international community as a whole, made up of states at the time.
Therefore, it is now “widely accepted as what has properly represented the eligibility
requirements of a state.” Asada, supra note 5, p. 83.
(7) YANAGIHARA Masaharu, Kokusaihou (International Law), The Open University ofJapan Foundation, 2014, p. 62.
(8) Ibid., p. 98.
(9) Japanese Society of International Law ed., Kokusai Kankeihou Jiten, Dai Ni-han(Dictionary of International Law for International Relations, Second Edition), Sanseido,7

2005, p. 455 (Written by TAKANO Yuichi).
(10) Island of Palmas Case (Netherlands/United States of America), Award of 4 April 1928,
RIAA, Vol. II (1949), p. 838. Having said that, the territorial sovereignty that covers
the territory, internal water and airspace and the territorial sovereignty that extends toterritorial waters are not the same thing. For there is the system of the right of innocent
passage for foreign vessels for territorial waters, not recognized for other territories.
Yanagihara, supra note 7, p. 99.
(11) “Takeshima no ryouyuuken wo meguru mondai” is translated as “the dispute overterritorial sovereignty over Takeshima,” and “Ryouyuuken wo saikakunin” is translated
as “reaffirmation of its territorial sovereignty.” The Ministry of Foreign Affairs of Japan,“Japan’s Consistent Position on the Territorial Sovereignty over Takeshima” (available athttps://www.mofa.go.jp/region/asia-paci/takeshima/index.html). Incidentally, the ROK
uses the translated term of “Ryoudo Shuken.” The Ministry of Foreign Affairs of the
Republic of Korea, The Korean Government’s Basic Position on Dokdo” (available at
http://dokdo.mofa.go.kr/jp/dokdo/government_position.jsp).

8

3. International Law Rules Concerning the
Attribution of State Territory(1) The Traditional Modes of Title to Territory
Then, what rules does international law set forth with respect to the issue ofthe attribution of state territory?
International law has responded to this issue by mainly developing rules
for title to territory. Title to territory means facts that serve as a cause or basis
for enabling the effective exercise of territorial sovereignty. Based on this title,a certain area belongs to a certain state, and the said state exercises sovereignty
over there(12). When the land becomes territory based on title to territory
associated with the land, the waters surrounding the land become territorial
waters, and the sky above the territory and territorial waters are to be regarded
as airspace(13).
Titles to territory include the following forms.
a) Original Title or Historical Title
First of all, state territory that existed at the time of the formation ofinternational law(14) is obviously recognized as territory of the said state. It
is because international law is presumed on states already existing and wasestablished as the “law of nations” that govern relations among those nations.
The territories of the U.K. and France were explained as such(15). The title inthis sense is called “original title” or “historical title(16).”
In relation to the Takeshima Dispute, Japan, “in light of historical facts,”
and the ROK, “historically,” assert that Takeshima/Dokdo is its own territory.
This is interpreted as meaning the acquisition of title under the original
title or historical title(17). More specifically, this is the logic that Takeshima/

9

Dokdo was the land that belonged to Japan or the ROK even before modern
international law born in Europe was accepted in East Asia and was recognized
as its territory in the process of Japan and the ROK being incorporated into themodern international law order(18).
b) Occupation
Occupation means that a state, with an intention of possession, extends its
effective control to an area over which no other state has extended its territorial
sovereignty (terra nullius). The intention of the possession is expressed in suchforms as a declaration by a state to incorporate a territory and a legislative or
administrative measure. With respect to the effective control, the General Actof the Berlin Conference of 1885 provided that for the occupation to be held
“effective,” a state should establish authority in a region occupied sufficient toprotect existing rights and freedom of trade and transit(19). However, at present,
the physical occupation to colonize and use the land in question is not always
required but the social occupation where the state function is exercised on adaily basis(20). The intention of the possession and the effective control bothmust be expressed or conducted by a state, and it is not sufficient for them tobe expressed or conducted by a private individual(21).
However, at present, there are few terra nullius on the face of theearth, and in the future as well, terra nullius should exist only in extremelyrare cases such as the emergence of an upthrusting new island on the highseas, the acquisition of title to territory through occupation is quite unlikely
to occur.
Incidentally, Japan in modern times incorporated into Japanese territory
through occupation of the Ogasawara Islands (October 1876), Ioto Island(September 1891), Kume Akashima Island, Kuba Island and Uotsuri Islands10(the Senkaku Islands) (January 1895), Minami-Torishima Island (July 1898),
Oki-Daitojima Island (September 1900), and Nakanotorishima Island (August1908)(22).
c) Prescription
Prescription means that a state effectively controls a territory of anotherstate for a certain period of time peacefully and continuously. Occupation isintended for terra nullius, while prescription is intended for a territory of
another state.
How long does it take for the expiry of prescription period? The Civil
Code of Japan provides that “A person that possesses the property of anotherfor 10 years peacefully and openly with an intention to own it acquires
ownership thereof if the person was acting in good faith and was not negligent
at the time when the possession started.” But international law does not haveany provision equivalent to this. Therefore, since the transfer of the title isthought to take place by the fact that the Parties concerned acquiesce in it, notby a lapse of time, there exists a view that does not recognize prescription as thetitle to territory(23).
d) Cession
Cession means that a state transfers a part of its territory to another state undera treaty. Forms of cession include a peace treaty (the cession of Taiwan to Japan
under the Sino-Japanese Peace Treaty (1895)), donation (Congo in 1907),
trade (Alaska in 1867, the Philippine Islands in 1898), and exchange (theTreaty of Saint Petersburg (1875))(24). However, under modern internationallaw, because of the prohibition of the use of force, in principle, a treaty
concluded as a result of an action in violation of this principle is rendered null11

and void ab initio(25). Therefore, even when the cession was provided undersuch treaty, the treaty becomes null and void ab initio, and the title would not
be transferred(26).
e) Annexation
Annexation means that a state transfers the entire portion of a territory toanother state. Annexation may take place under an agreement but may also
take place forcibly. However, like cession, when the annexation takes place
under a treaty concluded in violation of the principle of the prohibition of theuse of force, the title would not be transferred. When annexation takes placeforcibly, it is interpreted as a broadly defined conquest (to be explained below),
and it is considered to be null and void ab initio due to the prohibition of theuse of force(27).
f) Accretion
Accretion means the title to territory to be acquired as a new land area isformed within state territory to increase a land area. Not only the case of theformation of a new land area as a result of a natural phenomenon, but also theformation of a land area by artificial means, such as coastal reclamation andconstruction of an island is recognized as accretion. By the way, as explained
above, when an island emerges on the high seas that are not territory of any
state, it becomes subject to occupation as terra nullius(28).
g) Conquest
Conquest means that a state, by using force, controls a part or all of theterritory of another state. The requirement of conquest is the effective anddefinite control of another state’s territory with an intention of possession.

12

In the modern international community where the use of force is regarded asillegal, conquest by the illegal use of force is not recognized(29).
(2) Potential New Title to Territory
A state that acquired title to territory by satisfying any of the modes of title
to territory cited in (1) became able to turn a land area to which it had thetitle into its “territory” and exercise its territorial sovereignty over that territory.
For example, when a certain land area is terra nullius, only the state thatoccupied it first can acquire the title to it. The traditional modes of any title toterritory is the “system under which the title and title holder sets a single title
to the territory in question(30),” and thus it was not assumed that the titles ofseveral states “compete” between them and give rise to a dispute(31). However,actually, the claims for the competing titles and disputes occurred as seen in theTakeshima Dispute. Moreover, facts involved are often complicated and varied,and disputes are often being caused by such complicated and varied facts. For
example, in the case where occupation is claimed, it is generally extremely
difficult to find facts necessary to determine whether the disputed land area
was terra nullius or the territory of another state, or which state had exercised
the effective control(32). “Territorial disputes arise amid the competing titles
simply because the titles to territory invoked by (the disputing Parties) as thebasis for their territorial sovereignty are anything but unmistakably absoluteand certain(33).”
As seen above, the traditional modes of acquiring title to territory does
not necessarily provide a legal standard for eliminating a situation where theclaims for title to territory compete over a certain land area, like the case of theTakeshima Dispute. This can be seen in the fact that an international court,
when asked to help settle territorial disputes, did not necessarily depended on13the traditional title to territory but came up with its own standards to seek
settlements in determining to which state the areas subject to the competingclaims for title to territory should be attributed(34). For example, in the Islandof Palmas case of 1928, which is said to have great impact on posterity, theattribution of the disputed island was exercise or decided by ruling that “thecontinuous and peaceful exercise of the territorial sovereignty” is equivalent totitle to territory and determining the superiority/inferiority in light of evidence
submitted by the disputing Parties(35). Also, in the Eastern Greenland case of1933, the court held that the disputed area attributed to Denmark, based on theobjective circumstance of Denmark’s continuous and peaceful exercise or displayof its territorial sovereignty as well as the subjective circumstance of the approvalby Norway, of Denmark’s exercise of its sovereignty(36). “The continuous andpeaceful exercise or display of territorial sovereignty” is equivalent to effective
control, one of the requirements of the aforementioned occupation. However,neither of the above-cited award and judgment found that the disputed land area
was “terra nullius.” In other words, the court and tribunal in these two cases did
not decide the attribution on the basis of occupation.
As seen in the above cases, the international court and tribunal, insteadof “regarding (traditional) titles to territory as absolute and drawing either oneof them for applying to settle the territorial disputes, but rather by relativizing
title to territory(37) and taking out elements at the core of them and comparing
the conflicting views(38),” attributed the disputed areas to the states that
presented the relatively more powerful arguments(39).
Then, what sorts of legal arguments presented are determined as“relatively more powerful”? Though there are many relevant judicial
precedents, we cannot simply take up all of them because of limited space.
Thus, below, we take up the Minquiers and Ecrehos case, which, it is pointed

14

out, has similarity to the Takeshima Dispute and to which references are madeoccasionally. We seek to close in on the actual points regarded as importantin ICJ.
(12) Japanese Society of International Law ed., supra note 9, pp. 877-878 (Written by
USUKI Tomohito).
(13) Yanagihara, supra note 7, p. 101. See also Marcelo G. Kohen and Mamadou Hébié,‘Territory, Acquisition’, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of
Public International Law, Vol. IX, Oxford University Press, 2012, p. 888, para. 1.
(14) It is believed that “modern international law was gradually formed as the law governing
relations among sovereign… modern states established following the collapse of
medieval Christendom politically and spiritually unified by universal authority
represented by the Pope and the Holy Roman Emperor.” This happened roughly
from the latter half of the sixteenth century to the early seventeenth century. TABATA
Shigejiro, Kokusaihou I, Shinpan (International Law I, New Edition), Yuhikaku
Publishing, 1973, pp. 14-15.
(15) Yanagihara, supra note 7, pp. 100-101. Aside from this, though we did not touch on
this because it is not applicable to the Japan-ROK relations, there may be a case where a
new state is established. Since the land territory controlled by the new state is regarded
as the state territory, its attribution is determined without depending on the traditional
title to territory. ibid., p. 101.
(16) Ian Brownlie, Principles of Public International Law, Seventh Edition, Oxford, p. 142.
(17) Ha Younsu, “‘Takeshima Funso’ Saikou – Ryouiki Kengen wo Meguru Kokusaihou
no Kanten kara – (Rethinking of ‘the Dispute on Takeshima Islands’ – From theViewpoint of International Law – ),” Ryuukoku Hougaku, Volume 32, No.2, p. 228; Pae
Keun PARK, “Nihon ni yoru Tousho Sensen no Shosenrei – Takeshima/Dokutou ni
Taisuru Ryouiki Kengen wo Chuushin toshite – (Some Observations on the Territorial
Incorporation of Islands by Japan with Special Reference to the Territorial Title over
Liancourt Rocks (Takeshima/Dokdo)),” Journal of International Law and Diplomacy,
Volume 105, No.2, p. 176. Japan is believed to have asserted that “Takeshima is an
inherent part of the territory of Japan since olden days. The most decisive factor in
determining whether it is an inherent part of the territory or not is whether it was
effectively controlled and managed,” claiming “the existence of the original title and theacquisition of the title by the relatively strong, effective control and preoccupation.” Ha,
op. cit, pp. 232-233. This position is maintained even today, and a series of measuresfrom “the cabinet decision dated January 28, 1905” to “the Shimane Prefecture
Announcement dated February 22, 1905” were explained to have been taken as the15

“reaffirmation” of the intention of the possession. The Ministry of the Foreign Affairsof Japan, “10 Points to Understand the Takeshima Dispute, p. 11. (available at https://www.mofa.go.jp/files/000092147.pdf ). On the other hand, there is the view that there
is no basis sufficient to conclude that the series of measures taken by Japan had suchintention in comparison with the precedents of the incorporation of other islands by
Japan, though it is “logically possible” for Japan to take the additional measures “inorder to ensure territorial title to Takeshima/Dokdo in light of modern internationallaw.” Park, op. cit, pp. 188-189. “The precedents of the incorporation of other islands”
means the measure to incorporate the Ogasawara Islands to be discussed below (seeNote 22). Since Takeshima is not included in them, the aforementioned conclusion
was reached.
(18) Park, supra note 17, pp. 176-177. Perhaps from such a viewpoint, Japan asserted
that “the requirements of the acquisition of territory under international law are theintention of the possession of the territory as a state, a public announcement of thesaid intention and the establishment of a proper governing authority. However, sinceinternational law was not applicable to Japan prior to the opening of the state to theworld, in those years, it is recognized as sufficient to claim the possession of Takeshima
if Japan actually saw it as Japan’s territory and treated it as Japan’s territory and noother state disputed it.” TSUKAMOTO Takashi, “Takeshima Ryouyuuken wo Meguru
Nikkan Ryoukokuseifu no Kenkai (The Views of the Japanese and Republic of Korea
Governments on the Territorial Sovereignty over Takeshima),” The Reference, June 2002,
p. 60; TAIJUDO Kanae, “Takeshima Funsou (The Takeshima Dispute),” in TAIJUDO
Kanae, Ryoudo Kizoku no Kokusaihou (International Law on the Attribution of Territory),
Toshindo, 1998, p. 143; SERITA Kentaro, Nihon no Ryoudo (The Japanese Territory),
Chuko Sosho, 2002, p.153.
(19) The General Act of the Berlin Conference was a treaty concluded by European statesseeking to acquire colonies to adjust their conflicts of interest over Central Africa.
FUJITA Hisakazu, Kokusaihou Kougi, Dai Ni-han (The Lecture on International Law,
Second Edition), University of Tokyo Press, 2010, p. 241.
(20) Ibid., p. 242; Dong-hoon Kim et al., Hoonbukku Kokusaihou, Sai Kaitei Ban (Hornbook
International Law, Re-revised Edition), Hokuju Shuppan, 1998, p. 84 (Written by
SERITA Kenterou).
(21) Malcom N Shaw, International Law, Eighth Edition, 2017, Cambridge University Press,
p. 372.
(22) Yanagihara, supra note 7, p. 103. It was later confirmed that Nakanotorishima is nonexistent. ibid.
(23) Ibid. However, in the Kasikili/Sedudu Island case, the Parties (Botswana and Namibia)
agreed on the acquisitive prescription being recognized under international law and the16conditions enabling the acquisition of the title to territory pursuant to the prescription.
The Parties differed in their views on whether the conditions were satisfied in thiscase. The court held that since all facts of the case showed that the conditions were
not satisfied, there is no need to pay attention to what status the prescription would
have under international law or the conditions under which the title to territory could
be acquired pursuant to the prescription. Kasikili/Sedudu Island (Botswaana/Namibia),
Judgment, I. C. J. Reports 1999, pp. 1103-1105, paras. 94-97.
(24) KOTERA Akira, IWASAWA Yuji and MORITA Akio ed., Kougi Kokusaihou, Dai
Ni-han (International Law, Second Edition), 2010, Yuhikaku Publishing, p. 245(Written by YANAGIHARA Masaharu); TSUKAMOTO Takashi, “Kokusaihou kara
Mita Takeshima Mondai (The Takeshima Dispute from the Perspective of InternationalLaw),” FY2008 Takeshima Mondai wo Manabu (Learn about the Takeshima Dispute)
Kouza (Lecture), the Transcript of the Fifth Lecture, p. 4.
(25) Article 52 (Coercion of a State by the threat or use of force) of the Vienna Convention
on the Law of Treaties provides: “A treaty is void if its conclusion has been procured by
the threat or use of force in violation of the principles of international law embodied in
the Charter of the United Nations.”(26) Fujita, supra note 19, p. 245; Kotera et all ed., supra note 24; Tsukamoto, supra note 24.
(27) Dong-hoon Kim et al., supra note 20, p. 85.
(28) Fujita, supra note 19, p. 250.
(29) Ibid., p. 245; Dong-hoon Kim et al., supra note 20, p. 84.
(30) Sookyeon Huh, “Ryouiki Kengen Ron Saikou (Ichi) (The Acquisition of Territory inInternational Law (1)),” The Journal of the Association of Political and Social Sciences,
Volume 122, No. 1/2, p. 36.
(31) Yanagihara, supra note 7, p. 106; SAKAI Hironobu, “Kokusai Saiban ni Yoru Ryouiki
Funsou no Kaiketsu (Settlement of Territorial Disputes by International Courts
and Trials),” International Affairs, No. 624, p. 11; Sookyeon Huh, “Ryoudo Kizoku
Houri no Kouzou – Kengen to effectivité wo Meguru Gokai mo Fukumete (The
Structure of Legal Principles for Territorial Attribution – Including the Titles and theMisunderstanding about Effectivité ),” ibid., No. 624, p. 23; HAMAKAWA Kyoko,“Senkaku Shotou no Ryouyuu wo Meguru Ronten (Issues on the Title of the Senkaku
Islands),” Issue Brief, No. 565, p. 2. It is believed that title to territory can be understoodas “the absolute title” or “the erga omnes title” that have the recognizable “legal
consequences of the attribution to territory and the exercise of territorial authority,” aslong as the requirements are satisfied. Kotera et al. ed., supra note 24, p. 261.
(32) Yanagihara, supra note 7, p. 106; Taijudo, supra note 18, pp. 139-140.
(33) Sakai, supra note 31, p. 11. For similar points noted, Kotera et al., ed., supra note 24,
p. 262.

17

(34) G. Distefano, “The Conceptualization (Construction) of Territorial Title in the Light of
the International Court of Justice Case Law,” Leiden J.I.L., Vol. 19 (2006), p. 1048.
(35) Island of Palmas Case, supra note 10, p. 839.
(36) Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53,
pp. 45-51, 73(37) ‘In most of the cases involving claims to territorial sovereignty which have come before
an international tribunal, there have been two competing claims to the sovereignty, andthe tribunal has had to decide which of the two is the stronger.’ ibid., p. 46.
(38) SAKAI Hironobu, TERAYA Koji, NISHIMURA Yumi and HAMAMOTO Shotaro,
Kokusaihou (International Law), Yuhikaku Publishing, 2011, pp. 190-191.
(39) Shaw, supra note 21, p. 364.

18

4. Criteria for the Settlement of Territorial
Disputes Presented in the International Courtof Justice – Concerning the Minquiers andEcrehos Case
There is no treaty that provides the attribution of Takeshima between Japanand the ROK(40). And both States have asserted that they have possessed
Takeshima/Dokdo since a long time ago. Thus, the Takeshima Disputeis described as “similar to the Minquiers and Ecrehos Case” before theInternational Court of Justice (ICJ) “in the sense that the contesting states aremaking competing claims by invoking historical facts”(41). Therefore, some takethe view that in order to settle the Takeshima Dispute, in line with the rulingin this case, there is no other way
but to determine which of Japanor the ROK is presenting more
powerful legal arguments(42).
We would choose this casefrom among a large number of
judicial precedents because it has
been previously pointed out that
the Minquiers and Ecrehos Case
has similarity and relevance with
the Takeshima Dispute and that
it is deemed to be an extremely
important judicial precedent forJapan, which continues to “seekthe settlement of the dispute overChart: Locations of the Minquiers and Ecrehos(Detailed) (Based on the website Wikipedia(https://ja.wikipedia.org/wiki/チャンネル諸島#/
media/File:Jersey-islands.png))

19

Chart: Locations of the Minquiers and Ecrehos (Broad Area)(Based on the website Wikipedia (https://ja.wikipedia.org/wiki/イギリスの王室属領#/media/
File:Wyspy_Normandzkie.png))

20

territorial sovereignty over Takeshima on the basis of international law in acalm and peaceful manner.”
By the way, the ICJ has the function to decide in accordance withinternational law such disputes as are submitted to it (Statute of theInternational Court of Justice Article 38 (1)). Then, what sort of “internationallaw” did the ICJ apply to pass its judgment on this particular case?
(1) Facts
The Minquiers and Ecrehos are a group of islets islands located between theIsle of Jersey included in the British Channel Islands and mainland France.
Each of them comprises two or three habitable small islands, many of evensmaller islets and hosts of rocks. The Ecrehos is located northeast of the Isleof Jersey and is the closest to the Isle of Jersey, 3.9 nautical miles measured
from the rocks that are above the water at all times, and 6.6 nautical miles fromthe coast of France. The Minquiers is located south of the Isle of Jersey, 9.8
nautical miles from the same rocks and 16.2 nautical miles from mainland
France. The Minquiers is located 8 nautical miles from the Chausey Islands
which belong to France(43).
The United Kingdom (U.K.) and France had been in dispute over theattribution of the Minquiers and Ecrehos since the end of the nineteenth
century. In December 1950, the U.K. and France concluded the Special
Agreement, under which they agreed to settle the dispute at court. First ofall, in the Special Agreement, the two states confirmed that differences havearisen between them as a result of claims by each of them to sovereignty overthe islets and rocks in the Minquiers and Ecrehos groups and that they desirethat these differences should be settled by a decision of the ICJ. On this basis,“The Court is requested to determine whether the sovereignty over the islets

21and rocks (in so far as they are capable of appropriation) of the Minquiers andEcrehos groups respectively belongs to the United Kingdom or the French
Republic(44).”
The U.K. asserted that it is entitled under international law to full andundivided sovereignty over all the islets and rocks of the Minquiers and theEcrehos groups. In response, France claimed that sovereignty over the islets
and rocks of the Minquiers group and the Ecrehos group respectively belongs,
in so far as these islets and rocks are capable of appropriation, to the French
Republic. In consideration of such claims by both Parties, the Court stated at
the outset that the Court has to determine which of the Parties has produced
the more convincing proof of title to one or the other of these groups, or toboth of them(45).
(2) The Nature of the Dispute
Both Parties contend that they have respectively an ancient or original title to
the Ecrehos and the Minquiers, and that their title has always been maintained
and was never lost. The Court, therefore, finds that the present case does
not present the characteristics of a dispute concerning the acquisition ofsovereignty over “terra nullius(46).”(3) Points at Issuea) An Ancient Title
The U.K. Government derives the ancient title invoked by it from theconquest of England in 1066 by William, Duke of Normandy(47). By thisconquest, England became united with the Duchy of Normandy, including
the Channel Islands (including Minquiers and Ecrehos), and this union lasted
until 1204, when King Philip Augustus of France drove the Anglo-Norman

22forces out of Continental Normandy in 1202-1204. But the U.K. Government
submits the view that all of the Channel Islands remained, as before, united
with England and that this situation of fact was placed on a legal basis bysubsequent treaties concluded between the English and French Kings(48).
In response, the French Government asserted that when the Duchy ofNormandy was dismembered in 1204, the Ecrehos and Minquiers came to beheld by the King of France, citing the same medieval Treaties as those invokedby the U.K. Government as the basis for its assertion(49).
As both Parties relied on the same treaties to make the conflicting
claims, the Court examined whether these treaties contain anything whichmight throw light upon the legal status of the Ecrehos and the Minquiers. As
a result, the Court held that common to all these treaties is the fact that they
did not specify which islands were held by the Kings of England and France
and that the Court would therefore not be justified in drawing from them any
conclusion as to whether the Ecrehos and the Minquiers at the time were held
either by the English or by the French King(50).
On the other hand, the Court focused its attention on the following
facts. In 1200, the King of England issued a Charter granting to one of hisBarons “to have and to hold” some islets of the Channel Islands “as fees.” In
1203, this Baron granted to the Abbey of Val-Richer “the island of Ecrehos inentirety,” stating that the King of England “gave me the islands.” According
to the Court, “this shows that he treated the Ecrehos as an integral partof the fief of the Islands which he had received from the King.” Relying onother old documents and treaties, the U.K. Government submits the viewthat the Channel Islands in the Middle Ages were considered as an entity,
physically distinct from Continental Normandy, stating that even after thedismemberment, the Ecrehos and the Minquiers were attributed to England23

as part of the Channel Islands. In view of historical facts(51), the Court admits
that there appears to be a strong presumption in favor of this British view.
The Court does not, however, feel that it can draw from these considerations
alone any definitive conclusion as to the sovereignty over the Ecrehos and theMinquiers, since this question must ultimately depend on the evidence which
relates directly to the possession of these groups(52).
b) Original Title
Next, the Court considered France’s assertion. The French Government claims
that it derives the original title invoked by it from the fact that the Dukesof Normandy were the vassals of the Kings of France, and that the Kings
of England after 1066, in their capacity as Dukes of Normandy, held the
Duchy in fee of the French Kings(53). The French Government further relies
on a Judgment of 1202 of the Court of France and contends that the King ofEngland was thereby condemned to forfeit all the lands which he held in fee ofthe King of France (including the whole of Normandy).
In response, the U.K. Government contends that the feudal title of theFrench Kings in respect of Normandy was only nominal. It also contests thevalidity, and even the existence, of the Judgment of 1202 cited by France, andasserts that even if such a judgment was validly pronounced against the English
King, it could not have the alleged consequences.
These opposing contentions are based on more or less uncertain andcontroversial views, and on this point, it is, in the opinion of the Court,
not necessary to solve these historical controversies. “The Court considers
it sufficient to state as its view that even if the Kings of France did have an
original feudal title also in respect of the Channel Islands, such a title musthave lapsed as a consequence of the events of the year 1204 and following

24years.” Such an alleged original feudal title of the Kings of France in respectof the Channel Islands “could today produce no legal effect, unless it had been
replaced by another title valid according to the law of the time of replacement.”
With regard to the Judgment of 1202 invoked by France, it is theopinion of the Court that, whatever view is held as to its existence, validity,
scope, and consequences, it was not executed in respect of the Channel Islands,
as the French Kings have failed to obtain possession of these Islands except for
only brief periods.
As seen in a), France asserted that when Continental Normandy
was occupied by the King of France and the Duchy of Normandy wasdismembered in 1204, the Ecrehos and the Minquiers were attributed toFrance and have since remained with France. Noting that the Channel
Islands were occupied temporarily by French forces during some years
immediately following the events in 1204, and that Continental Normandy
was reconquered by the English King and held by him for a long period in
the fifteenth century, the Court states that it is difficult to see why thedismemberment of the Duchy of Normandy in 1204 should have the legal
consequences attributed to it by the French Government. “What is of decisive
importance, in the opinion of the Court, is not indirect presumptions deduced
from events in the Middle Ages, but the evidence which relates directly to thepossession of the Ecrehos and Minquiers groups(54).”c) Effects of the Fishery Convention
The Court examined three issues before considering the directly related
evidence.
The first issue is an effect on the attribution of the Ecrehos and theMinquiers of a convention on fishery (particularly the oyster fishery between

25

the Island of Jersey and the neighboring coast of France) concluded by theParties on August 2, 1839. It is common ground between the Parties that thisconvention did not settle the question of sovereignty over the Ecrehos and theMinquiers. But the French Government has submitted contentions that theislets and rocks of the Ecrehos and the Minquiers groups, being within thecommon fishery zone as so defined by the fishery convention, were subjectedby the Parties to a regime of common user for fishery purposes, without the
territorial sovereignty over these islets and rocks being otherwise affected by thesaid convention. Thus, the French Government asserts that the acts performedby each Party on the islets and rocks after the conclusion of the fisheryconvention are consequently not capable of being set up against the other Party
as manifestations of territorial sovereignty, with the result that such sovereignty
belongs today to that one of the Parties to whom it belonged before the date of
the conclusion of the fishery convention.
The Court states it cannot admit that “such an agreed common fisheryzone should necessarily have the effect of precluding the Parties from relying
on subsequent acts involving a manifestation of sovereignty in respect of theislets.” It says that since the fishery convention refers to fishery only and not
to any kind of user of land territory, the Parties could equally have acquiredor claimed exclusive sovereignty after 1839 and relied upon subsequent acts
involving the manifestation of sovereignty.
The Court further points out that the above-mentioned contention ofFrance as to exclusion of acts subsequent to 1839 is not compatible with theattitude which the French Government has taken since that time. France not
only claimed sovereignty over the Ecrehos in 1886 and over the Minquiers in
1888, and later, but it has, in order to establish such a sovereignty, itself reliedon measures taken subsequent to 1839, as referred to in related documents.

26

The Court notes that the Special Agreement of 1950 between the Parties
requested the Court to determine to which Party sovereignty over the Ecrehosand Minquiers belongs at present, but France asserts the Court should
determine to which Party sovereignty belonged in 1839, the assertion that the
Court finds is not consistent with the Special Agreement. The Court concludes
that it is therefore unable to accept the above-mentioned contentions as to theeffects of the fishery convention of 1839 on the question of the sovereignty
over the Ecrehos and Minquiers groups(55).
d) Critical Date
Another is the issue concerning the “critical date.” The U.K. Government
submits that, though the Parties have for a long time disagreed as to thesovereignty over the Ecrehos and Minquiers groups of islets and rocks, thedispute did not become “crystallized” before the conclusion of the Special
Agreement of December 1950, and that therefore, this date should beconsidered as the critical date, with the result that all acts before that date must
be taken into consideration by the Court. The French Government, on theother hand, contends that the date of the conclusion of the fishery conventionof 1839 should be selected as the critical date, and that all subsequent acts
must be excluded from the Court’s consideration.
The Court recognizes that France for the first time claimed sovereignty
over the Ecrehos and the Minquiers in 1886 and 1888, respectively anda dispute as to sovereignty over these groups of islets and rocks did notarise before those years. The Parties had for a considerable time been indisagreement with regard to the exclusive right to fish oysters, but they did notlink that matter to the issue of sovereignty over the Ecrehos and the Minquiers.
Thus, at the time of the conclusion of the fishery convention, no dispute as27

to the sovereignty over the Ecrehos and Minquiers groups had yet arisen.
Having said that, however, in view of the special circumstances of the present
case, the Court states that subsequent acts should also be considered by the
Court, unless the measure in question was taken with a view to improving
the legal position of the Party concerned. Activity in regard to the Ecrehosand Minquiers groups had developed gradually long before the dispute as
to sovereignty arose, and it has since continued without interruption and ina similar manner. In such circumstances, in the opinion of the Court, there
would be no justification for ruling out all events which during this continued
development occurred after the years 1886 and 1888 respectively(56).
e) Dependencies
Third, the Court examines the U.K. assertion that the Minquiers and Ecrehos
are “dependencies of the Isle of Jersey” and as such the English sovereignty
extended to these groups of islets and rocks. The U.K. Government has
endeavored to show that the groups must be considered as dependencies of
the Isle of Jersey by invoking several treaties that provided, “The terms ‘British
Islands’ and ‘United Kingdom,’ employed in this Convention, shall include theIslands of Jersey, Guernsey, Alderney, Sark and Man, with their dependencies.”
The Court states that these various clauses indicate that there are islands
or islets which are dependencies of such Channel Islands as are enumerated,but dismisses the U.K. claim by saying that no evidence is produced showingthat it was the intention of the contracting Parties to include the Ecrehos andMinquiers groups within the terms “British Islands” or “dependencies” or, on
the other hand, to exclude the groups from these terms(57).
Based on this, the Court will now consider the claims of both Parties
to sovereignty over the Ecrehos and begins with the evidence which relates

28directly to the possession of the Ecrehos and Minquiers groups, considered tobe “of decisive importance” by the Court.
f) Evidence that Relates Directly to the Possession of the Ecrehos(i) “The English King treated the Ecrehos as an integral part of his fief ”
First, the Court confirms that based on the aforementioned Charters of 1200
and 1203, the English King treated the Ecrehos as an integral part of his fief.
With respect to this point, the French Government contends that after
the baron donated the Ecrehos to the abbey, the feudal link between the baronand the abbey was severed and that the Ecrehos no longer formed a part of
the fief of the Channel Islands. According to France, the Ecrehos remained
subject to the Duke of Normandy through the intermediary of the abbey
situated on the French mainland, and that, when the King of France succeeded
to the rights of the Duke of Normandy after the occupation of Continental
Normandy in 1204, the abbey “passed under his protection, as did theEcrehos, whose overlord he became.”
In response to this assertion by France, the Court points out thefollowing facts. It appears clearly from the Grand Coutumier de Normandie
of the thirteenth century that such a grant did not have the effect of severing
feudal ties. Thus, the donating baron continued to hold the Ecrehos as a partof his fief of the Channel Islands, together with the abbot as his vassal and theKing of England as his overlord, and the King continued to exercise his justiceand levy his rights in the donated land. This can be affirmed from the records
of court proceedings conducted in 1309. The numerous court proceedings
were designed to enquire into the property and revenue of the English
King, and persons summoned were called upon to justify their possession ofproperty(58). The abbot was also summoned to answer regarding the investiture29

(advocatio)(59) of the priory of the Ecrehos as well as rent. According tothis ancient Norman custom, such a right of a patron to presentation of an
ecclesiastical office was considered and treated as a jus in rem, inherent in thesoil and inseparable from the territory of the fief to which it was attached(60).
When, therefore, the abbot was summoned before the King’s Justices in Jersey
to answer for this advocatio, it must have been on the ground that the Ecrehos,
to which the advocatio was attached, was within the domain of the English
King. And when the prior of the Ecrehos appeared as the abbot’s attorney inanswer to the summons, jurisdiction in respect of the Ecrehos was exercisedby the Justices, who decided that “it is permitted to the said prior to hold theabove-mentioned property (premissa) as he holds them as long as it shall please
the lord the King.”
The prior of the Ecrehos became involved in three other legal proceedings
in Jersey in the years 1323 and 1331, and they show that there was a close
relationship between the Ecrehos and Jersey at that time. And, in 1337, shortly
before the outbreak of the Hundred Years War between England and France(61),the English King granted the letters of protection to ten priors of Jersey and
Guernsey, including the prior of the Ecrehos, who was described as the “Priorof the Isle of Jersey Acrehowe (Prior de Acrehowe de Insula de Iereseye).” Suchprotection was apparently accorded to the prior of the Ecrehos because thepriory of the Ecrehos was under the authority of the English King(62).
As seen above, it was confirmed that the Ecrehos was under English
control up to the first half of the fourteenth century. On this basis, the Court
proceeded with the examination of the manifold facts invoked by the U.K.
Government. The Court attaches, in particular, probative value to the acts
which relate to the exercise of jurisdiction and local administration and tolegislation(63).

30

(ii) The exercise of criminal jurisdiction
According to the Court, while the relationship between the Ecrehos andJersey became tenuous since the latter half of the fourteenth century, butfrom the beginning of the nineteenth century, the connection between the
Ecrehos and Jersey became closer again because of the growing importanceof the oyster fishery in the waters surrounding the Ecrehos(64). Of events that
occurred in this period, the Court first of all focused on the exercise of criminal
jurisdiction.
From 1826 to 1921, several criminal proceedings were instituted before
the Royal Court of Jersey against crimes committed by persons of Jersey.
According to the evidence submitted by the U.K., the Royal Court did nothave jurisdiction against criminal offences committed outside the Bailiwick ofJersey, even when suspects were the U.K. subject residents in Jersey. Therefore,
the Court recognizes that the Jersey authorities took action in these cases
because the Ecrehos were considered to be within the Bailiwick of Jersey andthat these facts show that Jersey courts have exercised criminal jurisdiction in
respect of the Ecrehos during nearly a hundred years(65).
(iii) Exercise of Local Administration
Next comes the implementation of local administration. According to theevidence submitted, since about 1820, and probably earlier, persons from
Jersey have erected and maintained some habitable houses or huts on the isletsof the Ecrehos, where they have stayed during the fishing season. Some ofthese houses or huts have, for the purpose of parochial rates, been included in
the records of the parish of Jersey, which have been kept since 1889, and they
have been assessed for the levying of local taxes. The U.K. produced the ratingschedules for 1889 and 1950 as evidence.

31

Furthermore, a register of fishing boats for the port of Jersey shows thatthe fishing boat belonging to a Jersey fisherman, who lived permanently on an
islet of the Ecrehos for more than forty years, was entered in that register in
1872, the port or place of the boat being indicated as “Ecrehos Rocks,” andthat the license of that boat was cancelled in 1882 for the reason of unintended
use. According to a letter from 1876, from the Principal Customs Officer ofJersey, an official of the Isle of Jersey visited occasionally the Ecrehos for the
purpose of endorsing the license of that boat.
In addition, since 1863, it has been established that several contracts ofsale relating to real property on the Ecrehos islets have been passed before thecompetent authorities of Jersey and registered in the public registry of deeds ofthat island.
In 1884, a custom-house was established in the Ecrehos by Jersey
customs authorities. The islets had been included by Jersey authorities within
the scope of their census enumerations, and in 1901, an official enumerator
visited the islets for the purpose of taking the census.
The Court recognizes that these various facts show that Jersey authorities
have in several ways exercised ordinary local administration in respect of theEcrehos during a long period of time(66).
(iv) Legislation
By a British Treasury Warrant of 1875, constituting Jersey as a Port of the
Channel Islands, the “Ecrehos Rocks” were included within the limits ofthat port. The Court states that this legislative act was a clear manifestationof British sovereignty over the Ecrehos at a time when a dispute as to such
sovereignty had not yet arisen. The French Government protested in 1876
on the ground that this act derogated from the fishery convention of 1839.

32

But this protest could not deprive the act of its character as a manifestation ofsovereignty (The reason for that will be explained in g) infra)(67).
(v) Construction of Facilities
Of other facts, the Court states that it should be mentioned that Jersey
authorities have made periodical official visits to the Ecrehos since 1885, andthat they have carried out various civil engineering works and constructions
there, such as a slipway in 1895, a signal post in 1910 and the placing of amooring buoy in 1939(68).
(vi) Responses by France
The French Government has invoked the fact that the States of Jersey in 1646
prohibited the inhabitants of Jersey from fishing without special permission
at the Ecrehos and the Chausey Islands, and that they restricted visits to theEcrehos in 1692 because of the war between England and France. This shows,
it is contended, that the Ecrehos were not considered as British territory. But
the Court does not consider that this is the natural inference to be drawn fromthese facts.
The Court attached importance to the responses of France. In the courseof the diplomatic exchanges between the two Governments in the beginningof the nineteenth century concerning coastal fishing, the French Ambassador
in London addressed to the Foreign Office a Note, dated June 1820, attaching
two charts purporting to delimit the areas within which the fishermen ofeach country were entitled to exclusive rights of fishery. In these charts, a line
marking territorial waters was drawn around some parts of the Minquiers
and the Ecrehos to indicate them as British. The other part of the Ecrehos
apparently treated as res nullius, because, as described above, when the French

33

Government in 1876 protested against the British Treasury Warrant of 1875,
it did not itself claim sovereignty over the Ecrehos, and sought to treat the
Ecrehos as res nullius. A decade later in 1886, the French Government claimed
for the first-time sovereignty over the Ecrehos(69).
In light of these facts, the Court recognized the following points andconcluded that the sovereignty over the Ecrehos belongs to the U.K.
• The Ecrehos group in the beginning of the thirteenth century wasconsidered and treated as an integral part of the fief of the Channel Islands
which were held by the English King.
• In the beginning of the fourteenth century, the Ecrehos group continued
to be under the dominion of the English King.
• British authorities during the greater part of the nineteenth century andin the twentieth century have exercised State functions in respect of theEcrehos group.
• The French Government, on the other hand, has not produced evidence
showing that it has any valid title to the Ecrehos group(70).
g) Evidence Relating Directly to the Possession of the Minquiers(i) Exercise of jurisdiction
The U.K. asserted that as the manorial court in Noirmont took up several cases
involving certain objects shipwrecked around the Minquiers between 1615 and
1617, the Minquiers group was part of the fief of Noirmont in Jersey.
Referring to the Grand Coutumier de Normandie, the Court states thatas the jurisdiction of a local court such as the manorial court in Noirmontmust have been strictly territorial and, in cases concerning wreck, limited to
wreck found within the territory of its jurisdiction, it is difficult to explain its
dealing with these cases unless the Minquiers were considered to be a part of34

the fief of Noirmont, acknowledging the U.K. claim(71).
(ii) Implementation of Local Administration
On this matter, the Court recognized almost the same facts as with the Ecrehos,
acknowledging that Jersey authorities have in several ways exercised ordinary
local administration in respect of the Minquiers during a long period of time(72).
(iii) Construction of Facilities
With respect to this point as well, the Court recognized almost the same facts
as with the Ecrehos(73). Of other facts, the Court notes that Jersey authorities
had made periodical official visits to the Minquiers since 1885, and that they
have carried out various civil engineering works and constructions there, suchas a slipway in 1895, a signal post in 1910, and a mooring buoy in 1939.
The evidence thus produced by the U.K. Government shows in the opinion of
the Court that the Minquiers in the beginning of the seventeenth century weretreated as a part of the fief of Noirmont in Jersey, and that British authorities
during a considerable part of the nineteenth century and in the twentiethcentury have exercised State functions in respect of this group(74).
(iv) Responses by France
By his Note of 1820 to the Foreign Office, the French Ambassador in London
transmitted a letter from the French Minister of Marine to the French Foreign
Minister, in which the Minquiers were stated to be “Possessed by England(possédés par l’Angleterre),” and in one of the charts enclosed, the Minquiers
group was indicated as being British territory. It is argued by the French
Government that this admission cannot be invoked against it, as it was made35

in the course of negotiations which did not result in agreement. However,
the Court notes that it was a statement of facts, and the French Ambassador
did not express any reservation in respect thereof, acknowledging that thisstatement must therefore be considered as evidence of the French official viewat that time. As the fact to support that, the Court cited an official letter sentby the British Embassy in Paris to the French Foreign Minister in 1869. The
British Embassy had complained about alleged theft by French fishermen at
the Minquiers and referred to this group as “this dependency of the Channel
Islands.” France refuted the accusation against French fishermen but madeno reservation in respect of the statement that the Minquiers group was adependency of the Channel Islands. It was not until 1888 that France for the
first time made a claim to sovereignty over the Minquiers.
In 1929 a French national commenced the construction of a houseon one of the islets of the Minquiers in virtue of a lease to which Frenchauthorities consented. After the U.K. Government protested, the constructionof the house was stopped. That it was stopped at the instigation of the French
Government appears to follow from a 1937 official note from the French
Ambassador to the Foreign Office, where it was noted that “the French
Government, in spite of the slight distance between the Minquiers islands
and the Chausey islands, did not hesitate, a few years ago, to prevent theacquisition of land on the Minquiers by French nationals.”
The French Government invoked facts that it has assumed the solecharge of the lighting and buoying of the Minquiers, it constructed provisionalsignal lamps in the Minquiers, and the French Prime Minister and the Air
Minister traveled to the Minquiers in order to inspect the buoy management,
as the evidence directly relating to its possession. However, the Court does notfind that these facts are sufficient to show that France has a valid title to the36Minquiers. As to the above-mentioned acts by France, such acts can hardly
be considered as sufficient evidence to prove “the intention of the French
Government to act as sovereign” over the Minquiers nor are those acts of sucha character that they can be considered as involving a manifestation of Stateauthority in respect of the islets.
Thus, the Court is of opinion that the sovereignty over the Minquiersalso belongs to the U.K.(75)(4) Summary
Now, we would like to sort out the discussions above here.
(i)

The Parties invoked several treaties, but the ICJ states that as none ofthem had any provisions referring to the status of the Minquiers and theEcrehos, they provide no basis sufficient to draw out any conclusion on
their attribution.

(ii) The Court states that neither an “ancient title” nor an “original title” isdecisive with only evidence that does not relate directly to the possession,and it does not go any farther than leading to “a strong presumption
sufficient to support the view” of the U.K. Nonetheless, the Court foundthat the original title asserted by France must have lapsed considering
the subsequent historical events and it should be replaced by “another
title valid according to the law of the time of replacement.” As no
responsibility was imposed to the U.K. to substantiate this, at this stage, it
can be argued that the U.K. had an upper hand. In that sense, it would be
important to more accurately and in a more convincing manner than theother Party, describe historical facts not contradictory to widely known
historical evidence. If this can be done, it would be possible to obtain a37

presumption that the “ancient title” and the “original title” continued
to be held. Furthermore, this presumption can be interpreted as not tobe overturned even when there was the period when people stayed awayfrom the disputed territory and it was not possible to learn much about
the situation surrounding it (in this case, the period from the latter half ofthe fourteenth century and the beginning of the nineteenth century) (seef ) (ii) above(76)).
(iii) With respect to the fishery convention, both Parties acknowledged that it
did not solve the issue of sovereignty over the Ecrehos and the Minquiers.
However, since France requested that the acts after that not be consideredin making judgment on the attribution issue, the Court considered its
legal signification from this standpoint.
The Court rejected France’s request, saying that the fisheryconvention did not concern the use of the land territory and that the
French assertion is not consistent with the stance France has thus far
taken. While the latter was the individual circumstances in this case, theformer is worthy of attention as it showed the position of the Court on
the relationship between the fishery convention and title to territory.
(iv) In settling a territorial dispute, it is important to set a date on whicha dispute arose between the Parties concerned or the attribution of
territorial sovereignty is deemed to have become definite. This date iscalled the critical date. Facts prior to this period are recognized as valid
evidence sufficient to be the basis for title to territory and become subject
to the Court’s examination, but facts after this period are not to beconsidered(77).
The criteria for selection of the critical date include a date whena treaty was concluded or an event, that is the subject of a dispute,38

occurred, a date when a settlement through negotiations and mediation
as well as international courts and tribunals was proposed, a date wheneither of the Parties made a specific claim, and a date when a disputebecame “crystallized(78).” The date when the dispute became “crystallized”
means when “the Parties came into the state where they would no longer
negotiate, protest or attempt to persuade the other Party(79).” The critical
date is the concept that was advocated in order not to allow “first come,first served” and prevent any aggravation in the dispute.
In this case, the U.K. asserted that the critical date should be when
the dispute was crystallized, i.e., when the Parties agreed to submit the
dispute to the ICJ while France insisted that the critical date should bewhen the fishery convention was concluded. The Court found that the
dispute over the territorial sovereignty arose when France claimed its
sovereignty, i.e., over the Ecrehos in 1886 and over the Minquiers in1888. In the opinion of the Court, up to then, the Parties had been indisagreement with regard to the exclusive right to fish oysters, but the
territorial dispute had not yet arisen at the time of the conclusion of thefishery convention. While the Court states that it regards the date wheneither of the Parties made a clear claim as the “critical date,” it believes
that in view of the “special circumstances” of the present case, evenacts that took place after the occurrence of the dispute should also be
examined by the Court, “unless the measure in question was taken with aview to improving the legal position of the Party concerned.” The “special
circumstances” means that activity regarding the Ecrehos and Minquiers
had developed gradually long before the dispute as to sovereignty aroseand it has since continued without interruption and in a similar manner.
With the Court taking such position, this case is regarded as the judicial

39

precedent where “a critical significance was not acknowledged in theselection of the critical date” on the condition of the existence of the“special circumstances(80).”(v) Both Parties claimed that the Minquiers and Ecrehos are “dependencies”
of nearby islets, but the Court rejected them due to the lack of evidence
that clearly set forth said effect. Since this stance was maintained insubsequent cases, the claims of dependencies, it is believed, do notprovide the ground that is enough to decide the attribution of theterritorial sovereignty unless there exist documents such as treatiesthat expressly provided that the disputed islets are “dependencies of
the island(81).”(vi) As evidence directly relating to the possession, in addition to judicial
records, tax imposition, land registration, enactment of relevant laws andconstruction of facilities, the Court refers to the responses by France. As
we discussed each of them in detail above, we do not repeat them here,
but there is one particular thing we would like to point out. It is that even
if the same sorts of things such as construction of facilities were done, theCourt states that those by France can hardly be considered as sufficientevidence that proves “the intention of the French Government to act assovereign” or do not involve a manifestation of State authority. The Courtcame to this conclusion as France, based on earlier acts, is understoodto have acknowledged the disputed territory as the U.K. territory. We
suspect that the Court elected not to set the critical date as it apparently
thought that by considering events that arose after the occurrence of the
dispute, it could make its conclusions more convincing. At any rate, it
should be noted that the Parties to the dispute must be prepared to be put
to a considerable disadvantage if they took an action that acknowledges or40

can be taken to acknowledge the sovereignty of the opposing Party.
(vii) In this case, sea charts that drew parts of the Minquiers and Ecrehos as
the U.K. territory and those that drew the Minquiers as English territory
were considered by the Court. However, the Court, rather than treating
the sea charts themselves as evidence that directly relates to the possession,
is believed to have given importance to the fact that France did not lodge
a protest when the sea charts showed things disadvantageous to France(82).
By applying “international law” like this, the Court held that the
territorial sovereignty over the Minquiers and Ecrehos is attributed
to England. The Court did not say anything about the traditional title
to territory such as occupation, due in part to the fact that the Parties
did not refer to it in their assertions. Since the Parties did not raise any
objection and instead, they made their respective assertions by taking
this as a given, this can be considered as “international law” the Court
applies to the settlement of a territorial dispute as in this case(83). If theTakeshima Dispute, which is similar to this case, is referred to the Court,
the attribution of the territorial sovereignty will likely be decided in thesame way.
(40) However, while the Treaty of Peace with Japan provides, “Japan, recognizing theindependence of Korea, renounces all right, title and claim to Korea, including theislands of Quelpart, Port Hamilton and Dagelet” (Article 2 (a)), the views are divergent
as to whether the territories renounced by Japan include Takeshima. On this matter,see Taijudo, supra note 18, pp. 148-150; TSUKAMOTO Takashi, “Kokusaihouteki
Kenchi kara Mita Takeshima Mondai (The Takeshima Dispute from the Perspectiveof International Law),” Fujouri to Tatakau (Fight against Absurdity), Research Series,
Journal of Social Sciences, Takushoku University, 2017, pp. 159-165.
(41) MINAGAWA Takeshi, “Takeshima Funsou to Kokusai Hanrei (Takeshima Dispute andInternational Law Precedents),” MAEHARA Kyouju Kanreki Kinen Kokusai Hougaku
no Shomondai (Festschrift in honor of Professor MAEHARA’s 60th Birthday: Issues in41

International Law), 1963, p. 352; Taijudo, supra note 18, p. 140.
(42) Ibid., pp. 140-141; Minagawa, supra note 18, p. 38.
(43) The Minquiers and Ecrehos case, Judgment of November 17th, 1953: I.C.J. Reports 1953,
p. 53.
(44) Ibid., p. 49.
(45) Ibid., p. 52.
(46) Ibid.
(47) This event is known as “The Norman Conquest of England.” On October 14, 1066,
the Norman forces, led by Guillaume, the Duke of Normandy, defeated the forces
led by English King Harold in “the Battle of Hastings.” After the battle, Guillaume,
entered London, England, and assumed the throne as English King William I in thesame year, creating the Anglo-Norman kingdom. William was the English King as wellas the Duke of Normandy, and thus governed both regions by shuttling the English
Channel, but his base remained to be Normandy. England came to be treated as the“dependency” of the Anglo-Norman kingdom. KAWAKITA Minoru ed., Igirisu Shi(The History of England), Yamakawa Shuppansha, 1998, pp. 43-48; ASAJI Keizo,
WATANABE Setsuo and KATO Makoto ed., Chuusei Eifutsu Kankei Shi (The History ofEnglish-French Relations in the Middle Ages), Sogensha, 2012, pp. 14-20.
(48) The Minquiers and Ecrehos case, supra note 43, p. 53.
(49) Ibid., pp. 53-54. In 1204, the Duke of Normandy and English King John was defeatedby King Philip II of France, losing the good part of the territory of the Duchy ofNormandy. However, the Channel Islands remained under control of the English
King and became the dependency of the British Royal Household. YAKUBO Hiroshi,“Eikoku Chaneru Shoto Jaajiitou no Touchi Sisutemu – Jaajii Gikai no Kouzou (TheGoverning System of the Isle of Jersey of the British Channel Islands – The Structureof the Jersey Assembly),” The Faculty Journal of Komazawa Women’s University, No. 18,
p. 82.
(50) The Minquiers and Ecrehos case, supra note 43, p. 54.
(51) This means the fact that the English King, as “the Duke of Normandy,” possessed theentire Normandy, including the Channel Islands. ibid., p. 55. Also see supra note 47.
(52) Ibid.
(53) The Channel Islands were added to the fief of the Duke of Normandy when Guillaume
I in 933 received them as his fief from the King of France, and it is said that he and his
descendants pledged allegiance to the French King for the entire Normandy (including
the Channel Islands). ibid., p. 56.
(54) Ibid., pp. 56-57.
(55) Ibid., pp. 57-59.
(56) Ibid., pp. 59-60.

42

(57) Ibid., p. 60. France also asserted that the Minquiers are the islands belonging to theChausey Islands. As the basis for its assertion, France stated that the bull of the Pope in
1179 cited the Chausey Islands and their “appurtenance” as one of the possessions of
the abbey of Mont Saint-Michel. However, the Court turned down the French assertion
by stating that it is possible to derive no inference about the status of the Minquiers
from such general wording. ibid., p 70.
(58) This is what was called Quo Waranto. People who illegally held official powers or
privileges or exercised them were required to justify on what authority they had such
powers or privileges. Currently, this has been abolished. KOYAMA Sadao, Eibei
Houritugo Jiten (Koyama’s Dictionary of Anglo-American Legal Terminology), Kenkyusha,
2011, p. 917.
(59) HIGASHIDA Isao, “Rondon Sei Maruchinusu Daikyokai to Kokuou Gyousei(Jou) (The King’s Free Chapel of St. Martin’s-le-Grand, London, and the King’s
Administration (Part One)),” The Annual Reports on Cultural Science, Hokkaido
University, No. 36 (1), p. 82.
(60) This means the direct and exclusive authority against a thing (jus in rem), the concept
comparable to the right of claim against a specific person (jus in personam). In Japan’s
Civil Code, the former is called “real right,” and the latter as “claim.” Houritsugaku
Shoujiten, Dai Gohan (The Dictionary of Law, Fifth Edition), Yuhikaku Publishing,
2016, pp. 1142-1143.
(61) The war that arose between the English kings and the French kings in medieval Europe.
As it continued over approximately 100 years from 1337 to 1453, including armisticeperiods in between, it is referred to as such. For details, see KIDO Takeshi, Hyakunen
Sensou: Chuusei Makki no Eifutu Kankei (The Hundred Years War: Anglo-French Relationsin the Late Middle Ages), Tosui Shobo, 2010.
(62) The Minquiers and Ecrehos case, supra note 43, pp. 60-63.
(63) Ibid., p. 65.
(64) During this period, there arose the incident in 1706 where Jersey authorities
interrogated a French citizen brought from the Ecrehos by Jersey fishermen. Englandasserted that the incident showed the jurisdictional authority it exercised over the
Ecrehos. However, the Court rejected the English assertion by stating that it was themeasure naturally taken against a national of another State who fled that State to reach
Jersey. The Court also states that the quarantine measure Jersey took in 1754 against
vessels coming from France had nothing directly relating to the territorial attribution.
ibid., p. 64.
(65) Additionally, Jersey law set forth for several centuries that an inquest shall be conducted
into the cause of death of a body found within its jurisdiction when it is not clear thedeath resulted from natural causes. In fact, such inquests were conducted in 1859, 1917

43

and 1948. The Court acknowledges that these inquests are collateral evidence sufficient
to demonstrate that the jurisdiction was exercised over the Ecrehos. ibid., p. 65.
(66) Ibid., pp. 65-66.
(67) Ibid., p. 66.
(68) Ibid.
(69) Ibid., pp. 66-67.
(70) Ibid., p. 67.
(71) Ibid., pp. 67-68. In relation to this, England invoked a ruling handed down by
the Royal Court of Jersey in 1692. The Royal Court apparently ordered that cargo
shipwrecked at rocks of the Minquiers be trisected among the English King, theguardian of the seigneur of the fief of Samares in Jersey and sea rescuers, but England
was unable to submit a document said to be the basis for this conclusion. Thus, theCourt states that no conclusion can be derived from the ruling of the Royal Court ofJersey supportive of the English assertion about sovereignty over the Minquiers. ibid.,
p. 68.
(72) Ibid., p. 69.
(73) Ibid.
(74) Ibid.
(75) Ibid., pp. 70-72.
(76) See, Island of Palmas Case, supra note 10, p. 855.
(77) YAMAMOTO Soji, Kokusaihou, Shinpan (International Law, New Edition), Sanseido,
1994, pp. 281-282; ANDO Nisuke, “Kokka Ryouiki no Tokusou – Tokuni ‘Kengen’
to Ryoudo Funsou ni Tsuite – (Acquisition or Loss of State Territory – In Paritcular,
about ‘Title’ and Territorial Dispute – ),” TERASAWA Hajime, UCHIDA Hisashi ed.,(Bessatsu Hougaku Kyoushitsu) Kokusaihou no Kihon Mondai ((Supplement Jurisprudence
Classroom) The Fundamentals of International Law), 1986, p. 135.
(78) “Crystallized” in English and “Crystallisé” in French, the word often translated as“Kesshouka (crystallization)” in Japanese. However, the word may also be translated
as “Gutaika (concretization)” in Japanese, and since this is deemed to be easier tounderstand, we adopted the translation of “Gutaika.” NAKAMURA Osamu, “Ryouikui
Kengen Toshiteno Jikkouteki Shihai (Effective Control as Title to Territory),” Hanrei
Kokusaihou, Dai Ni-han (International Law Judicial Precedents, Second Edition),
Toshindo, 2006, p. 134.
(79) Gerald Fitzmaurice, “The Law and Procedure of the International Court of Justice
1951-1954,” 32 BYIL (1955-56), pp. 23-24; Sookyeon Huh, “Ryouiki Kengen Ron
Saikou (Yon) (The Acquisition of Territory in International Law (4)),” The Journal of the
Association of Political and Social Sciences, Volume 122, No. 7/8, pp. 879, 903.
(80) TAIJUDO Kanae, “Mankie/Ekureo Jiken (The Minquiers/Ecrehos Case),” Keesubukku

44Kokusaihou, Shinpan (Casebook Internationanl Law, New Edition), p. 110; HIGASHI
Jutaro, “Mankie/Ekureo Shotou Jiken (The Minquiers/Ecrehos Islands Case),” Kokusai
Shihou Saibansho – Hanketsu to Iken, Dai Ikkan (1948-63 Nen) (International Court ofJustice: Its Judgments and Advisory Opinions, Volume I (1948-1963)), Kokusai Shoin,
1999, p. 158; Nakamura, supra note 78. There are some subsequent judicial precedents
that note that “acts conducted after the date when the dispute was crystallized cannot
be subject to examinations by courts,” but this shall not apply to acts that are normallycontinuing since before the date when the dispute became crystallized and were notmade “with a view to improving the legal position of the Party concerned.” Sovereignty
over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I. C. J. Reports
2002, p. 682, para. 135.
(81) Ibid., pp. 674-675, para. 110.
(82) ITO Tetsuo, “Ryoudo Funsou to Kokka Kankatsuken – Kokusai Saiban ni Okeru‘Mokuji no Doui’ to Hoppou Ryoudo Mondai – (Territorial Disputes and State
Jurisdiction – ‘Implied Consent’ in International Courts and Trials and the Northern
Territories Issue – ),” Kokka Kankatsuken (State Jurisdiction), Keiso Shobo, 1998, pp.
332-333. Judge Levi Carneiro, who expressed his individual opinion, states that “mapsdo not constitute a sufficiently important contribution to enable a decision to be basedon them.” The Minquiers and Ecrehos case, supra note 43, Opinion Individuelle de M.
Levi Carneiro, p. 105, para. 20. For the position of the ICJ on maps, see Diffërend
frontalier, arrêt, C.I.J. Recueil 1986, p. 554, para. 54.
(83) Article 38 (1) of the Statute of the International Court of Justice provides that the
Court “shall apply” the following:a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;c. the general principles of law recognized by civilized nations;d. judicial decisions and the teachings of the most highly qualified publicists of thevarious nations, as subsidiary means for the determination of rules of law.
In other words, these constitute “international law.” Thus, it is conceivable that
“international law” applied in settling territorial disputes essentially has to be eitherof the above. However, d. is “subsidiary means for the determination of rules oflaw,” no court ruling cannot be issued with this alone. SUGIHARA Takane, Kihon
Kokusaihou, Dai Ni-han (Basic Principles of International Law, Second Edition),
2014, Yuhikaku Publishing, pp. 48-50. Since the Court states that there are notreaties applicable to this case, a. was not applied. Then, what was applied is eitherb. or c. However, as the Court did not say anything about this, it remains uncertain.

45

5. Examination of the Practice by Japan(1) 1905 and Beyond
In January 1905, Japan named an uninhabited island “Takeshima” and had
it “attributed to Japan” under a cabinet decision, and placed the island underthe “jurisdiction of the Oki Islands branch office” of the Shimane Prefectural
Government. The Minister of the Interior relayed the cabinet decision to the
Shimane Prefectural Governor, who announced that Takeshima was put underthe “jurisdiction of the Oki Islands branch office” of the Shimane Prefectural
Government by the Shimane Prefectural Announcement No. 40.
The investigation and surveying of Takeshima were conducted at the
instruction of the Shimane Prefectural Governor, and the governor of the Oki
Islands in May 1905 reported to the Shimane Governor that Takeshima has
an area of “23 cho 3 tan 3 se bu.” Based on this, Shimane Prefecture registered
Takeshima on the cadaster as government-owned land. In April, Shimane
Prefecture revised its fishery regulation rules, putting seal lion hunting in
Takeshima under the licensing system and gave the license to the “Takeshima
Fishing and Hunting Limited Partnership Company” in June. In the following
year, the company submitted a request to lease the Takeshima governmentowned land, and the Shimane Governor provided it with a five-year written
permission.
In 1939, under an administrative measure, Takeshima was incorporated
into Goka Village, Oki County, Shimane Prefecture. In 1940, Takeshima
became the naval land of the Maizuru Naval Station, and in November
1941, a directive was issued to permit Goka Village people to use the island
to protect the capturing alive of sea lions and the taking and reproduction ofseaweeds and shellfishes. In November 1945, under Article 2 of the Order for46

Enforcement of the National Property Act, Takeshima was transferred from theNavy to the Ministry of Finance(84).
In 1953, Shimane Prefecture granted a license to the Oki Islands
Federation of Industrial Fishing Cooperative Associations for the common
fishery right in waters around Takeshima, and also in the same year, permitted
two persons from Goka Village to hunt sea lions in Takeshima. In 1954,
the Director of the Hiroshima Regional Bureau of International Trade andIndustry permitted two persons to set the phosphate ore mining right in waters
around Takeshima(85).
These measures are tantamount to the enactment and enforcement ofrelevant laws, registration of land and taxation, all of which can be describedas acts related to the implementation of local administration and legislationthat were highly valued as evidence directly relating to the possession in the
Minquiers and Ecrehos Case. While there was nothing comparable to theexercise of jurisdiction, this does not seem to be an unfavorable element since it
is highly unlikely that any crime is committed in Takeshima.
Therefore, in light of the practice in 1905 and onward, the Japaneseposition that its territorial sovereignty had been established under the series ofthese measures(86) can be interpreted as based on sufficient evidence(87).
(2) Prior to 1905
The Japanese Government has the following recognition about Takeshimafrom the seventeenth century to the eighteenth century.
“In 1618, Ohya Jinkichi and Murakawa Ichibei, merchants of Yonago,
Hōki Province in Tottori Domain, received permission for passage to Utsuryo
Island (then called “Takeshima” in Japan) from the shogunate via the lord of
Tottori. Following that, the two families took turns in traveling to Utsuryo

47

Island once each year, and engaging in catching abalone, hunting sea lions andfelling trees.
Both families engaged in fishing around Utsuryo Island using ships withthe hollyhock crest of the ruling shogunate family on the sails, and usuallypresented the abalone they caught as gifts to the shogunate and others. Thus
they monopolized the management of the island with the de facto approval of
the shogunate.
During this period, Takeshima, on the route from Oki to Utsuryo Island,came to be used as a navigational port, docking point for ships, and richfishing ground for sea lions and abalone.
As a consequence of the above facts, Japan had established sovereignty
over Takeshima by the mid-17th century (early Edo period) at the latest(88).”
Objections to the Japanese Government’s above-mentioned recognition
have been brought forward from within Japan, beginning with the ROK(89).
Many of them are related to the evaluation of historical facts, but Japan’s
explanations give a shade of uneasiness from the viewpoint of international law
as well. More specifically, does the use of Takeshima as “a navigational port,”“a docking point for ships” and “a rich fishing ground” serve as the basis forestablishing “the sovereignty over Takeshima”? It must be said that they are so
weak, when compared with the evidence English submitted to substantiate theexistence of an “ancient title” in the Minquiers and Ecrehos Case(90).
Nevertheless, in the present circumstances, as it appears that the ROK
cannot talk about history more convincing than the points raised by Japan(91),there exists the possibility that the Japanese explanations may be taken as
having a relative advantage and the “ancient title” or the “original title”
for Japan may be recognized. For example, in the case where Malaysia and48

Singapore disputed the attribution of an island, since a) the disputed island is
widely known as “an obstacle that poses a risk to the navigation of ships,” andb) no other competing sovereignty claims have been made on the island, thekingdom, the predecessor of Malaysia, was recognized to have had the original
title to the island. Based on a), as the kingdom’s territorial domain extended to
all the islands within the Singapore Straits at the time, the domain included
the disputed island. Furthermore, the requirement of “the continuous andpeaceful exercise or display of the territorial sovereignty (peaceful with respect
to relations with other states)(92)” was satisfied, based on b)(93).
Considering in line with the above judgment, Japan will likely be judged tohave held the original title to Takeshima if it can prove that Takeshima is “widely
known” and no other state had asserted the sovereignty over Takeshima.
Evidence that directly relates to the possession or acts that are
tantamount to a manifestation of State authority are not necessarily required
always to the same extent(94). According to the award in the Island of Palmas
Case, the manifestation of State authority must be assessed in accordance withspecial circumstances of individual cases. The ICJ also states that “internationallaw” acknowledges such treatment(95).
Such assessment, flexible at best but haphazard at worst, is accepted
because, it is said, international law takes great pains to avoid an outbreak ofinternational disputes by “peacefully separating” states. In other words, thescope to which territorial sovereignty extends is partitioned into the territoryof each state so that they do not infringe on each other. Much of the substanceof governance conducted within the state territory has been left to thediscretion of each state. This is because a state is the only political organizationthat has effective governing power, and it was thought that the effective
international order can be formed by governing relations between states. That49

acts tantamount to a manifestation of State authority do not necessarily haveto be the same extent reflects such historical backgrounds. With respect touninhabited or very thinly populated places unsuitable for people to live in,
ice-covered places in the Arctic Circle, or areas extremely difficult to approach,such as remote solitary islands, not much importance was given to whether
there is a large number of evidence directly relating to the possession or acts
tantamount to a manifestation of State authority. Even in the scarcity of such
evidence, it is considered sufficient when territorial sovereignty is “peacefully”
displayed in a continuous and peaceful manner without any protest by otherstates. That is because even that much of it would not create an obstacle to themaintenance and formation of an international order(96).
However, the possibility of the ROK holding convincing evidence is notnil. Japan needs to collect and analyze as many as possible materials relating tohistorical facts so that it can counteract whatever evidence the ROK comes up
with. This is the challenge Japan should take up by all its might.
(84) Taijudo, supra note 18, p. 137; Kokusaihou Jirei Kenkyuukai (The Study Group on
Internationanl Law Cases), Ryoudo (Territory), Keio Tsushin (Keio Correspondence),
1990, p. 171.
(85) Ibid., pp. 173-174.
(86) Tsukamoto, supra note 18.
(87) Taijudo, supra note 18, p. 143; Minagawa, supra note 41, p. 368; Tsukamoto, supranote 40, pp. 152-153. As we discussed in note 40, the interpretation of the provisions
in Article 2 (a) of the Treaty of Peace with Japan remains open to debate. However,since the article does not explicitly state the attribution of Takeshima, if it is handled
in the same manner as in the Minquiers and Ecrehos Case, it should not become an
unfavorable element for Japan.
(88) The Ministry of Foreign Affairs of Japan, “Takeshima no Ryouyuu (Sovereignty overTakeshima)” (available at https://www.mofa.go.jp/a_o/na/takeshima/page1we_000058.html)(89) For example, IKEUCHI Satoshi, Takeshima Mondai towa Nanika (What Is theTakeshima Dispute), The University of Nagoya Press, 2012, pp. 14-36.

50

(90) It is pointed out that “if there is a weak point in the Japanese Government’s claims
concerning historical facts, it is that the Edo Shogunate at the time did not expressly
display the intention of the possession of Takeshima and the manifestation of Stateauthority was not that much clear.” Taijudo, supra note 18, p. 142.
(91) Ibid., p. 141; Tsukamoto, supra note 40, pp. 143-149.
(92) Island of Palmas Case, supra note 10, p. 839.
(93) Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/
Singapore), Judgment, I.C.J. Reports 2008, pp. 35-37. paras. 61-69.
(94) Island of Palmas Case, supra note 10, pp. 840, 855.
(95) Sovereignty over Pedra Branca/Pulau Batu Puteh, supra note 93, p. 36. para. 67.
(96) MURASE Shinya et al., Gendai Kokusaihou no Shihyou (Indicators of Contemporary
International Law), Yuhikaku Publishing, 1994, pp. 89-90.

51

6. Concluding Remarks
At the end of this paper, I would like to touch on a matter not much discussed
until now. It concerns the critical date.
The Japanese Government and many academic theories appear to assume
that when the Takeshima Dispute is referred to the ICJ, the Court is likely
to set the critical date at the declaration of the establishment of the Syngman
Rhee Line by the ROK in 1952 or 1954 at the latest, when the ROK began theoccupation of Takeshima(97). As discussed earlier, once the critical date is set,
only facts or acts that existed prior to the critical date are acknowledged to havethe validity of evidence, in principle.
Therefore, if the critical date is set prior to 1954, in the eyes of Japan the“illegal occupation” of Takeshima being carried out by the ROK since then is
not to be examined by the Court. From this viewpoint, therefore, it has been
believed that “the probability of Japan wining the case is considerably large(98).”
In other words, it has been argued that the critical date should be set prior
to 1954 in order to “exclude all acts of the ROK relating to the control andpossession of Takeshima after 1952(99).”
Judicial precedents in recent years regarded the day when differencesof opinions on the attribution of a dispute area became clear as the date of
the occurrence of a territorial dispute and set that date as the critical date(100).
In light of such tendency, the right or wrong of the objective aside, it can beargued that the critical date is highly likely to be set prior to 1954.
Furthermore, as discussed above, in the Minquiers and Ecrehos Case
where the critical date was not explicitly set, the date on which France asserted
its sovereignty over the Ecrehos and Minquiers was considered to be the datewhen the dispute arose, and the Court states that “the measure taken with a52

view to improving the legal position” of France since that date is not to be
examined(101).
Therefore, even when the critical date is not set, “the measure taken(by the ROK) with a view to improving the legal position” of the ROK after
1952, when the differences of opinions between Japan and the ROK over theattribution of Takeshima became apparent, is likely to be excluded from thesubject of the consideration.
However, even if the critical date is set for 1952, it appears that to what
extent the measures and events since 1905 are to be considered remains as an
issue to be separately examined.
With the Japan-Korea Treaty concluded in 1905, Japan came to“supervise and direct” the Korean diplomacy, almost completely depriving
Korea of its diplomatic right(102). And in 1910, the Treaty on the Annexationof Korea (Japan-Korea Annexation Treaty) was concluded. At least since1910, Korea could not leave “evidence directly relating the possession” ofTakeshima as it was annexed by Japan. One Party annexed the other Party, andthe annexed Party could not demonstrate “the intention to act as sovereign”
or take an action involving “a manifestation of State authority.” Are thesecircumstances to be considered in deciding the attribution of territorial
sovereignty? As there appears to be no judicial precedence, it is just a matterof speculation, but due consideration should be given to the possibility thatmeasures that were taken or events that occurred after the only contesting state
was made disappeared are not to be examined by the Court. In fact, academic
theories that argue in favor of the ROK emphasize this possibility(103). In
addition, the possibility cannot be ruled out that measures and events after
the conclusion of the Japan-Korea Treaty of 1905 will be treated in a similarmanner.

53

As seen in the preceding chapter, even if that is the case, as long as
we look at the assertions made by Japan and the ROK at this stage in lightof international law presented in international courts and tribunals, it ishighly possible that the Court will hand down a judgment that Japan has
the territorial sovereignty over Takeshima. As long as there remain uncertain
factors, however, it is necessary for Japan to demonstrate with solid evidence
that Takeshima was the territory of Japan by 1905 by thoroughly collecting
and analyzing historical documents on the assumption that no measure or
event after 1905 is going to be considered by the Court.
(97)

Prof. Minagawa sees the date when Japan lodged an official protest after thedeclaration of the establishment of the Syngman Rhee Line by the ROK (January 28,1951) as the critical date. Minagawa, supra note 41, p. 354.
(98) Taijudo, supra note 18, p. 153.
(99) Ha, supra note 17, p. 276.
(100) Sovereignty over Pulau Ligitan and Pulau Sipadan (IndonesialMalaysia), supra note 80,
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, pp. 698-701, paras. 118-131;
Sovereignty over Pedra Branca/Pulau Batu Puteh, supra note 91, p. 28. paras. 33-36.
(101) Yamamoto, supra note 77, p. 282. The Minquiers and Ecrehos case, supra note 43,
p. 59; Sovereignty over Pulau Ligitan and Pulau Sipadan supra note 80.
(102) For the process of concluding the Japan-Korea Treaty of 1905 and reactions of otherstates to it, see SAKAMOTO Shigeki, “Nikkan Hogo Jouyaku no Kouryoku (The
Validity of the Japanese-Korea Protectorate Treaty),” Jouyakuhou no Riron to Jissai (The
Theory and Practice of the Law of Treaties), Toshindo, 2004, pp. 244-252.
(103) Jon. M. Van Dyke, “Legal Issues Related to Sovereignty over Dokdo and Its Maritime
Boundary,” Ocean Development & International Law, Vol. 38, 2007, p. 165.

54

[Profile of the Author]

NAKANO Tetsuya
Born in Osaka Prefecture in 1969. Finished the Doctoral Program, Graduate Schoolof Law, Kansai University. Professor since 2012 after serving as full-time instructor andthen associate professor at the Faculty of Law, Kansai University.
Specializes in international law. Member of the Japanese Society of International Law
and the Japanese Association of World Law, member of the Second to Fifth Shimane
Takeshima Issue Research GroupHis articles include “1905 nen Nihon ni Yoru Takeshima Ryoudo Hennyuu Sochino Houteki Seikaku (The Legal Nature of the Measure to Incorporate Takeshima
into Japanese Territory in 1905),” Kansai Daigaku Hougaku Ronshu, Dai 61-kan
Dai 5-go (The Law Review of Kansai University, Volume 61, No. 5); “Loss of Title to
Territory: The Implication of ‘the Order Prohibiting Passage to Takeshima’ in Light
of International Law,” Kansai University review of law and politics, Volume (202103); “Takeshima Mondai 100 Mon 100 Tou (100 Questions and 100 Answers on theTakeshima Dispute)” (Coauthored)55