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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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