Roger C. S. Lin, Richard W. Hartzell
International treaty law and the laws of war offer a
creative solution to the dispute between Korea and Japan
over the Dokdo Islets.
In dealing with territorial disputes within
geographic areas covered by the 1952 San Francisco Peace
Treaty (SFPT), a problem arises: How are we to interpret
ownership of islands given up by Japan when no
"receiving country" is specified and some islands are
not specifically mentioned?
In the parlance of international law, territorial
cessions where no "receiving country" is specified may
be called "limbo cessions" and territory not clearly
and specifically dealt with may be called
The SFPT was written within the framework of the laws
of war -- often called "the customary laws of warfare."
Within its own geographic scope, it is the
highest-ranking document of international law in the
post-World War II era. Obviously, the SFPT is still in
effect up to the present day, and there is a methodology
for determining how disputes over "territorial
sovereignty" can be resolved under such a treaty
In the pre-Napoleonic period, conquest and annexation
were commonly viewed as an accepted method of
territorial acquisition. However, after the Napoleonic
Wars, international law underwent a transformation with
"annexation" no longer permitted.
In the modern era, conquest must be followed by
military occupation. The 1907 Hague Regulations specify,
"Territory is considered occupied when it is actually
placed under the authority of the hostile army."
Legal relationships do not arise from a consideration
of which army accepted the surrender of what other army,
or which military troops were victorious in what
particular battle, or what the composition of the Allies
was at any particular point in time, or what intentions
were stated in the surrender documents or other
pre-surrender proclamations about the future disposition
Legal relationships arise from a consideration of
"Who is the occupying power?" In the post-Napoleonic
era, this goes back to a determination of "Who is the
Importantly, the terminology of the occupying power is
used with only some minor variations in all relevant conventions
and treaties which dictate international norms regarding the
disposition of persons and property in areas under military
For example, while the Geneva Conventions generally
refer to the occupying power, The Hague Conventions
often speak of the occupying state. However, in dealing
with military occupation matters, the "law of agency"
is always available.
When the administrative authority for the military
occupation of particular areas is delegated to other
troops, the terminology of the principal occupying power
is most commonly seen, and a "principal-agent"
relationship is in effect.
After Pearl Harbor, U.S. Congress declared war
against Japan on Dec. 8, 1941. United States military
forces conducted all military attacks against the four
main Japanese islands, so it can be held that the United
States is the "conqueror" of Japan and her overseas
In other words, the United States has "acquired"
these areas under the principle of conquest, and the
disposition thereof must be conducted according to the
laws of war.
General Order No. 1 was issued on Sept. 2, 1945.
President Harry Truman approved this Order before its
promulgation, the United States is the "conqueror" of
Japan and her overseas territories, and General
MacArthur is the head of the United States military
forces. Hence, the strongest presumption would be that
the United States is the principal occupying power.
Importantly, Article 23 of the SFPT fully confirms this.
Military occupation is conducted under a military
government. For territorial cessions and un-demarcated
territory, it is important to realize the military
government of the principal occupying power does not end
with the coming into force of the peace treaty. This can
be seen through an overview of the military history of
the Philippines, Guam, and Puerto Rico, and Cuba after
the Spanish American War.
Dokdo was territory included in, and/or adjunct to,
the areas "acquired" by the United States, and thus
under the jurisdiction of U.S. military authorities. As
un-demarcated territory under the terms of the treaty,
at the present time Dokdo is still subject to the
jurisdiction of the United States Military Government
Although Dokdo has no native population, there are
Korean troops there now. Under the SFPT, these personnel
would be considered a subordinate occupying power. This
is "agency." USMG is the principal. The Korean troops
are the agent.
The territorial clause of the U.S. Constitution says:
"The Congress shall have Power to dispose of and make
all needful Rules and Regulations respecting the
Territory or other Property belonging to the United
Hence, under the provisions of the SFPT for limbo
cessions such as the Kuriles, Spratly Islands, and Taiwan
or for un-demarcated territory, it is clear that title
to the territory escheats to "the conqueror," which in
the post-Napoleonic period is "the principal occupying
This is ownership in the sense of "having legal
right to," or "having title to," however, it is more
properly delineated as a kind of "quasi-trusteeship."
Hence, Korean government officials should be
petitioning the U.S. Congress to make final disposition
of this "property" held under USMG, and subject to the
jurisdiction of the U.S. Congress under the territorial
clause of the U.S. Constitution.
A somewhat similar analysis can be done for the
SFPT's limbo cessions.
Japanese government officials should petition the
U.S. Congress to make a determination of the "civil
rights and political status" of the inhabitants of the
In this way, Dokdo can be awarded to Korea, and the
dispute over the Kuriles Islands can be resolved in
favor of Japan. Of course, responsibility for the
implementation of such decisions would rest with the
U.S. commander in chief.
- - - - - - - - - -
The authors are researchers in territorial cession
law, international treaty law, and the laws of