1. Meaning of Discovery in International Law
In the Island of Palmas case in 1928 between the Netherlands and the United States, the Swiss lawyer Max Huber defined discovery in international law as “the mere fact of seeing land, without any act, even symbolical, of taking possession.” If discovery can be defined in this way, can one say that the mere fact of seeing land constitutes legal sovereignty over the land?
There was a time in which discovery was indeed an important means by which lands were acquired. That was the Age of Exploration during the fifteenth and sixteenth centuries. During this time, acquisition by discovery was possible because there was much “terra nullius,” or land belonging to no one. During these centuries, legal scholars such as Vitoria, Freitas, and Suarez proposed that discovery was a legitimate means of acquiring land. But scholars such as Hugo Grotius and Samuel von Pufendorf did not agree with this view.
A legal dispute arose in the early twentieth century surrounding the issue of whether discovery could indeed be regarded as a way to acquire land. This is the Island of Palmas case between the Netherlands and the United States. In this dispute, the United States side argued land acquisition through discovery. The lawyers of the United States side claimed that the Spaniards took sovereignty over the island of Palmas in the sixteenth century by discovering it and the United States succeeded to sovereignty from Spain. Whenever land acquisition is made, it must be judged by the law currently prevailing at the time (this is called the intertemporal doctrine). During the sixteenth century, discovery was a perfectly legitimate means of acquiring land. To this, the Dutch side countered that the fact that the Spaniards discovered the island was not proven by evidence and no other evidence was established to claim sovereignty in any other means. Even if Spain held title to land at any time in history, they went on to argue, that was lost a long time ago. Huber, the arbiter, reviewed legal principles whether discovery could indeed be grounds for land acquisition.
Huber stated that it is difficult to recognize land sovereignty by the act of discovery alone without any follow-up actions. But he added that a simple act of discovery may be “inchoate title.”Title can be a cause or grounds for establishing and exercising territorial sovereignty. Inchoate title means that a simple act of discovery does not constitute full acquisition of land. Full title can be acquired when discovery is complemented by effective occupation for a reasonable length of time or any other follow-up actions. Huber, the arbiter, stated that discovery alone cannot replace the act of a state exercising its normal function in a consistent and peaceful manner. Even if a sovereign state made a discovery of land, it may lose inchoate title to it if another state makes effective occupation even after discovery.
To this, scholars such as Hall commented that discovery was not inchoate title but perfect title during the sixteenth century. But others such as Hans Kelsen and Sir Humphrey Waldock concurred with Huber by stating that discovery alone cannot constitute perfect title.
Still they did not consider discovery as an utterly useless exercise, just as Huber stated regarding discovery as inchoate title. Whenever a court case about land sovereignty is considered, intertemporal law is invoked. That is because the judgment on whether a state acquired title in a legitimate manner must be made based on laws prevailing at the time of land acquisition. In other words, discovery had an important meaning during the sixteenth century as it was considered a principal means by which land sovereignty was acquired. For this reason, discovery can be seen as, in a way, a starting point in the process of acquiring land that must involve an ensuing act of effective occupation.
2. The First Discovery of Dokdo
Who first discovered Dokdo and when? It is estimated that Dokdo was created between 4.6 million and 2.5 million years ago. Although created a long time ago, people began inhabiting the island only fairly recently. People settled in the island permanently in the 1950s. Before then, some settlers stayed in the island temporarily or seasonally. For this reason, the first discoverers of Dokdo must be considered with historical and geographical factors in mind as the island had been uninhabited for such a long time.
〈FIG 2〉 Dokdo Seen from above the Roof of a House (Kakideung, Dodong-ri, Ulleungdo), 2009. 25, 2009)
The oldest extant records that mention Dokdo are History of Goryeo Geographical Records
(1451) and The Annals of King Sejong Geographical Records
. But the passage in The Annals of King Sejong Geographical Records
printed in 1454 was reproduced from the Geography Gazetteer of the Eight Provinces
(1432). The sections on Uljin County, Gangwon-do in History of Goryeo Geographical Records
and in The Annals of King Sejong Geographical Records
state, “The two islands are not far apart and one island is visible from the other on clear days” (二島相去不遠 風日淸明 則可望見). The fifteenth century, during which the two texts were printed, witnessed a shift of policy by the central government to forcefully resettle the island residents to the mainland. The fact that the gazetteers explicitly mentioned that Dokdo is visible from Ulleungdo during this time shows that the Joseon court was fully aware that Dokdo was clearly visible from Ulleungdo from much earlier. One may thus conclude that the first discovery of Dokdo occurred when Ulleungdo was inhabited. Given the reference to the State of Usan in Samguk Saki
[三国史記, The History of Three Kingdoms], that time is estimated to have been in 512 or earlier.
Korean records on the discovery of Dokdo appeared more frequently after King Sukjong’s reign in the late seventeenth century when the king initiated a policy of vacating islands. For example, Jang Han-sang, an official responsible for vacating Ulleungdo, wrote, “An island is visible vaguely in the southeast of Ulleungdo” in his Historical Records of Ulleungdo
In 2005, an investigative report concerning a Korean boat anchored at a dock in Japan in the ninth year of the Genroku period in Japan, or 1696, (元祿九丙子年朝鮮舟着岸一卷之覺書) was discovered. This text points to the fact that An Yong-bok knew of Dokdo. The report was written by Japanese officials when An Yong-bok went to Japan for the second time in the fifth month of 1696. This report states that An Yong-bok called Dokdo as Jasando, whose geographical location fairly matches that of Dokdo.
An Yong-bok said Ulleungdo (竹嶋) is called Bamboo Island. There is an island called Ulleungdo in Dongnae County in Joseon’s Gyeongsang-do, which is also called Bamboo Island. This is indicated in the “Map of the Eight Provinces.”
Dokdo (松嶋) is also called Jasan (子山; ソウサン) in [Gangwon] do. This is also indicated in the “Map of the Eight Provinces” (abbreviated).
It is estimated that the distance between Ulleungdo (竹嶋) and the Joseon mainland is 30 ri and the distance between Ulleungdo (竹嶋) and Dokdo (松嶋) is 50 ri.
Even though the names of Dokdo were Usan or Jasan (So-Usan), it was generally recognized that Dokdo was part of the old State of Usan. From this it is clear that the claim by Japanese scholars who stated that Koreans became aware of Dokdo as late as the early twentieth century is groundless.
When did Japanese discover Dokdo? To this question, Kawakami answered as follows:
Japanese were aware of the presence of Ulleungdo since the early eleventh century as Urumano Island (うるまの島). The fact that there were people who sailed to Ulleungdo, or the island known in Japan as Takeshima (竹嶋) or Iso-Takeshima (磯竹嶋), was mentioned in Korean records, as well. … Today’s Takeshima [Dokdo], known at the time as Matsushima (松島), lay in the middle of the route to Ulleungdo, and sailors would often land on the island and catch abalone or sea lions.
Kawakami claimed that Japanese were aware of the presence of Ulleungdo since the early eleventh century and that they discovered Dokdo en route to and from Ulleungdo. This is an argument that Japanese fishermen discovered Ulleungdo in the early eleventh century, and is mixed awkwardly with another claim that Dokdo was used as a midway point en route to Ulleungdo by Japanese fishermen during the mid-seventeenth century. From the overall impression in the text, it seems that the author argues that the first discovery of Dokdo by Japanese goes back to the early eleventh century. But there is no mention pointing to Dokdo in Japanese records in the early eleventh century. It is impossible to see Dokdo from the Oki Islands, as one must sail at least 107 kilometers to view Dokdo.
〈FIG 3〉 Sunset over Dokdo as seen from the Oki Islands
Ulleungdo and Dokdo are indicated as Ulleungdo and Usando in the national and Gangwon-do maps included in the Map of Joseon Kingdom created by Yoshitaka Kuki and others. This is a faithful reproduction of the “Map of Joseon” in New and Expanded Complete Conspectus of the Territory of the Eastern Country
, but its depiction of Ulleungdo and Dokdo is reversed and the size of the two islands are almost identical. This is the first appearance of Dokdo in Japanese maps and geography books.
The first Japanese record that mentions Dokdo is “Records on Observations on Oki” (1667). This book contains the following references to Dokdo.
Sailing to the northwest for two days you will reach Matsushima (Dokdo). From there, another one day of sailing will take you to Takeshima (Ulleungdo).
But Ikeuchi Satoshi proposes earlier Japanese records than this. According to Ikeuchi, the first mention of Dokdo (Matsushima) is found in a text by Ishii Muneyoshi in the early 1650s. The passage goes is as below.
Fishermen in small boats shoot seals with arquebus guns on the shore of Matsushima (Dokdo). As it is a small island, the seals would swim away to Takeshima (Ulleungdo) where fishermen could catch the seals in abundance. Ichibe said, “That is something I would like to do.”
According to other foreign records, the first Western ship to discover Dokdo was the Cherokee, an American whaling ship. According to the ship’s log for April 17, 1848, the Cherokee
found Dokdo on that day. On January 27, 1849, the Liancourt
, a French whaling ship, discovered Dokdo and named it the Liancourt Rocks.
Given the geographical location and historical records regarding the visibility of Dokdo from Ulleungdo, the first people who discovered Dokdo must have been the residents of Ulleungdo before the sixth century, during the State of Usan period.
3. Discovery of Dokdo and Territorial Title
〈FIG 4〉 Dokdo Seen through a Persimmon Tree in the Garden at the home of Park Yong-su, Saegakdan, Sadong-ri, Ulleungdo, 11. 22, 2008)
As discussed above, the act of discovery itself is not sufficient to establish title to land, and it is thus difficult to state that the fact that Koreans discovered Dokdo first constitutes full territorial claims to the island. One must note here that the residents of Ulleungdo have continuously been aware of Dokdo in their everyday lives since the first discovery and that this fact was indicated in official government records, including The Annals of King Sejong Geographical Records
. It is true that the Ulleungdo residents found Dokdo before the sixth century does not grant Korea automatic rights to ownership of the island. Still the residents have lived with the island for such a long time and with the island visible on the horizon on clear days. This fact was recorded in government documents on several occasions, which may be understood as the Korean government’s strong willingness to acknowledge Dokdo as its territory.
In contrast, it is doubtful whether the Japanese government at any time before the 1905 annexation of Dokdo in to Shimane Prefecture contested the territorial rights to the extent of overturning the claims by the Korean side grounded on first discovery and historical records. Japan’s claims are clearly refuted by historical episodes. Before 1905, the Japanese government made clear that it had nothing to do with the island, as can be seen in the 1877 directive of the Japanese Prime Minister that Japan would give up its willingness to make territorial claims on Dokdo.
- [note 060]
- The Island of Palmas case (or Miangas) (United States of America v. The Netherlands), PCA Award of the Tribunal (1928), p. 14 (www.pca-cpa.org).
- [note 061]
- Surya P. Sharma (1997), Territorial Acquisition, Disputes and International Law, Hague: Martinus Nijhoff Publishers, p. 40.
- [note 062]
- The Island of Palmas Case (1928), p. 7.
- [note 063]
- The Island of Palmas Case (1928), pp. 14〜15
- [note 064]
- The Island of Palmas Case (1928), p. 15; Peter Malanczuk (1997), Akehurst’s Modern Introduction to International Law, 7th ed., London: Routledge, p. 149; Encyclopedia of Public International Law, Vol. 4 (2000), Amsterdam: North-Holland, Territory, Discovery, p. 840.
- [note 065]
- The Island of Palmas Case (1928), p. 15.
- [note 066]
- For this issue, refer to Sharma (1997), ibid., pp. 44-45.
- [note 067]
- Sharma (1997), ibid., p. 46.
- [note 068]
- For details, see Yu Mi-rim (2008), op. cit., pp. 73-102.
- [note 069]
- The translation of the report is based on Kim Jeong-won (2005), “A Report on a Korean Boat Landing on the Dock in the Ninth Year of Genroku,” Dokdo Studies, Vol. 1, pp. 292-294. In the same issue of this journal are photograph prints and Chinese and Korean editions of the An Yong-bok report with explanations (pp. 233-310).
- [note 070]
- Kawakami (1966), op. cit., p. 277.
- [note 071]
- Jeong (2008), op. cit., p. 180; Kawakami (1966), op. cit., p. 208.
- [note 072]
- Dokdo Museum (2005), Dokdo and Ulleungdo, the Beautiful Islands, p. 68.
- [note 073]
- Korean Ministry of Foreign Affairs (1977), “Opinion by the Japanese Government (2),” Compilation of Materials on Dokdo (I): Diplomatic Correspondence (1952-1976), Data 77-134 (Bukil), p. 53. Refer to verbal statement by Japan dated February 10, 1954.
- [note 074]
- For details on “Records on Observations on Oki,” see Hong Seong-geun (2009), “Nature and Implications of Japanese Policy to Exclude Dokdo from Their Territory,” in Dokdo and Korea-Japan Relationship: Legal and Historical Approach, Northeast Asian History Foundation, pp. 95-99.
- [note 075]
- Ikeuchi Satoshi (2001), “Livelihood and Cultural Exchange in Ulleungdo Waters during the Seventeenth to Nineteenth Centuries,” Historical Studies, pp. 756, 26.
- [note 076]
- Lee Seung-jin (2000), “Review of Ship Logs of Japanese Boats and U.S. Whaling Ship,” Ulleung Culture, Vol. 5, pp. 39-56; Dokdo Museum (2007), Dokdo and Ulleungdo, the Beautiful Islands, pp. 82-87. This publication describes in detail the discovery of Dokdo by Westerners.
- [note 077]
- This, however, concerns the fact of visibility of Dokdo from Ulleungdo and its implications in terms of international law only. It does not necessarily mean that Korea’s rights to the island have remained imperfect for a long period of time.
- [note 078]
- Hong Seong-geun (2009), op. cit., pp. 93-126.