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7 Korean J. Int'l & Comp. L. 1 (2019)

handle is hein.journals/kjicl7 and id is 1 raw text is: KOREAN JOURNAL OF INTERNATIONAL 1- K) ICL BRILL AND COMPARATIVE LAW 7 (2019) 1-66 NIJHOFF brill.com/kjic Analysis of the Territorial Issue regarding the Liancourt Rocks between Korea and Japan MinJung Chung Legislative Research Officer, National Assembly Research Service, Seoul, Republic of Korea minjch@assembly.go.kr Abstract In this Article, the three-staged judicial review found in the reasoning of territorial arbitral awards of the International Arbitral Tribunal and decisions of the Permanent Court of International Justice and the International Court of Justice, was discussed. The Tribunal and Court have attributed the utmost priority to boundary treaties (in most cases, concluded between two imperial nations in the past), peace treaties, uti possidetisjuris, and an adjudicative award in adjudicating the sovereign matter. Conversely, a chain-of-title through cession and succession from ancient times is of no value. In the absence of any legal title, then effectivit6s is taken into consideration. One of the rationales behind the reasoning was that the principle of stability of boundaries is of such importance that it may defeat other principles of international law, e.g., evenjus cogens. It is, however, suspected that contemporary reasoning dem- onstrates bias toward maintaining past colonial rule under the guise of the stability of boundaries. Domestic property law and economics approach also explains that a state with written title (based on boundary treaties, peace treaties, the principle of uti pos- sidetis, and arbitral awards) and a state with effectivit6s are more likely to be considered to have control over territory in issue than a state with original ownership. As to the issue of the Liancourt Rocks, Japan claims that it will be necessary for Korea and Japan to diplomatically negotiate to refer the matter to the Tribunal or the Court. However, Korea does not feel the need to agree on referring the matter to the International Judicial Body. The first reason for Korea's attitude is that Korea already physically occupied the island with its police force. The second reason is that Japan has a choice, either to take the island back with direct confrontation or to accept the loss and leave Korea's sovereignty alone, that the Liancourt Rocks has of little value to Japan, compared to other territories disputed between Japan and its neighboring states, and therefore, that it is almost impossible to imagine that Japan would dare @ MIN JUNG CHUNG, 2019 DOI:10.1163/22134484-12340116 This is an open access article distributed under the terms of the CC-BY License.

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