Why Won’t Korea Accept Japan’s Invitation to Go to the ICJ?

by Julian Ku

I’ve been trapped in an August blogging-slump. But I am roused to my keyboard by the surge of territorial disputes in Asia.  China has aggressively asserted ever stronger and more expansive claims in the South China Sea, sparking dissension amongst the Association for Southeast Asian Nations (ASEAN) and serious protests in Vietnam and the Philippine.  China, Taiwan, and Japan are trading diplomatic barbs over the disputed Diaoyu/Senkaku Islands.  And Korea and Japan are at loggerheads over the Dokdo/Takeshima islands.  All of these disputes are getting worse, not better, and are exacerbating tensions all over Asia. This is shocking for most folks over here in the States, as it is hard to imagine why all of these countries are squabbling over (for the most part) a bunch of rocks.

Of these various disputes, the Korea-Japan battle over Dokdo/Takeshima seems the best candidate for resolution by international arbitration.   Japan, in fact, has formally asked Korea to submit the dispute to the ICJ for binding arbitration and has even threatened some mild economic penalties if the Koreans don’t agree.  And Korea has flatly turned down Japan, which is somewhat surprising given that Korea is one of the most enthusiastic supporters of international organizations and international dispute resolution in general.  The President of the ICC is a Korean national, and Korea has a judge sitting on the International Tribunal for the Law of the Sea. (Oh yeah, that UN Secretary General is from Korea too!).

According to news reports, Korean diplomats have said that the ICJ is inappropriate because the Dokdo/Takeshima islands plainly belong to Korea under international law.

“Dokdo is clearly part of Korean territory historically, geographically and under international law, and no territorial dispute exists,” said Cho Tai-young, spokesman at the Ministry of Foreign Affairs and Trade. “The Japanese government’s proposal to take the Dokdo issue before the ICJ is not worth attention.”

From a legal perspective, this is a pretty unpersuasive response. Japan has agreed to accept any ICJ judgment.  Korea has no shortage of brilliant international lawyers who could put on a terrific case at the ICJ.  This whole case could be definitively resolved and a ongoing source of tension between the two neighbors could be settled amicably.  The U.S. and Canada used international arbitration to settle some key disputes over the US-Canada border, with pretty good success over the years.

I suppose the answer is simply that Korea currently controls the islands, and the ICJ judgment will get Korea nothing except confirmation of what Korea already has.  But if Korea continues to refuse Japan’s offer, then it is even less likely that any of these other disputes could go to international arbitration.  Indeed, it suggests that international adjudication in Asia has a pretty bleak future. Korea and Japan are two of the most pro-international adjudication countries in the world. If they can’t agree to go to international arbitration, what are the chances that China (with its numerous territorial disputes with all of its neighbors) will ever agree to such arbitration?

http://opiniojuris.org/2012/08/20/why-wont-korea-accept-japans-invitation-to-go-to-the-icj/

5 Responses


  1. Thank you for a tiimely topic, Professor Ku. I think we should have some context to understand this issue better. 

    Dokdo was one of the first territory the imperialist Japan unlawfully took away from Korea in the early 20th century on its way to the total (also unlawful) annexation of Korea by threat of force, actual force and manipulation (with implicit consent of US: Taft-Katsura agreement). Koreans and those who understand the modern history of East Asia resent the very fact that Japan is still claiming this islet, because this means Japan still maintains the position that there was nothing wrong with what they did during their imperialist invasion/expansion to Korea and China. Unlike Germany whose leaders made official apology to the Jewish victims and tried to stay away from offensive remarks denying Holocaust, many of Japanese politicians constantly offended Asians by arguing that their historical actions were not wrong; for example, they deny having forcibly mobilized sex slaves(comfort women) for their army, which was condemned by US Congress a few years ago. They also deny that a lot of incidents of massacre in Korea and China, when there’s sufficient evidence and documentation for those crimes against humanity. How would you feel if German people or German government said they never killed Jewish people and there was no concentration camp, and Anna Frank was a liar?
    If Japan had been more like Germany in their dealings with its embarrassing past, Korea would have been more flexible. Wait, no, if Japan really regretted its historical wrongdoing, it would never have claimed a piece of territory which it robbed its closes neighbor of in the first place.
    Official reason for Korea to turn down Japan’s offer to go to ICJ is that there is no dispute whatsoever on the sovereignty of this piece of territory because it so clearly and obviously belongs to Korea. But what really motivates Koreans is that they cannot morally allow or condone Japan in any form to revive their evil ghost of imperialist, militarist past, which still plagues modern Japanese politics and their sense of morality. Many believe Japan should not take advantage of the international legal system to vindicate its distorted historical perception and political agenda mostly propelled by extreme right-wingists, many of whom are criminally racist.
    I hope this “context” - from some Koreans’ point of view - would help inform the discussion on this topic. Thank you again for an opportunity to think about what’s being usually overlooked, Professor Ku.   

  2. JS Hwang’s counter argument is not convincing. For example, he wrote: ” How would you feel if German people or German government said they never killed Jewish people and there was no concentration camp, and Anna Frank was a liar?”But if the German government proposed to go to court to settle that question then, given that I really believe that I am right, I would go to court to have it proven that the (hypothetical) view of the German people and government is wrong. 

  3. The issue is a territorial dispute stemming from past transgressions but not a legal issue of the past transgressions themselves.  History aside, unless Korea wants a continued bout with Japan over the islands, they should submit to arbitration and state their case.  Given the previous borders and assumed proof of unlawful occupation, they more than likely will win over the court.
    After that, they could address the continued hard feelings toward the Japanese government and past wrongdoings and failures to acknowledge such using their ICJ decision as a starting point for talks.
    Denial of their being a dispute when there is an obvious one does not improve relations.  Both sides of an argument must come together to resolve it, and at this point, Korea is failing to do just that.

  4. This adamant refusal to submit the dispute to the ICJ may inadvertently foster the impression within the international community that Korea is less certain of the legal merits of its claim than its public rhetoric suggests. But if Korea is truly convinced that Japan’s claim has no basis in law, then ICJ adjudication may well be the best option to settle the matter amicably–once and for all.

  5. I appreciate the insightful comments made by Huy, Benjamin and Mark. I think all of their comments have good points. I will definitely use their comments in my future dialogue and debate with my friends and colleagues in Korea. 
     
    But, maybe I was not clear in my comment when I mentioned the need to understand ”the context”.

    Personally, as a student of international law, I believe submitting this matter to the ICJ can be one good way to resolve this issue and silence those Japanese politicians who refuse to look at historical truth – once and for all.

    But, in my comment, I wanted to explain why the Korean government cannot be flexibly considering that option. If you are a Korean politician or a foreing minister, and you say “well, let’s bring this matter to ICJ and kick their ass there”, then you will lose your job the next day because many Korean people, who are deeply offended by the fact that Japan still denies their historical responsibility, will not accept any slightest hint that Japanese claim based on their history of invasion and destruction has anything whatsoever to look into. Bringing this to international court is that ‘hint’ to most Koreans.

    This is a hard political reality you cannot change just by telling Koreans to “calm down” or just by pointing out the merits of going to the Hague. Korea is a democracy, and you cannot rule there by going against what most people think. That is what I meant by the “context”, and why I wrote “what really motivates Koreans is that they cannot morally allow or condone Japan in any form to revive their….”      

    The merit of bringing this to the ICJ aside, I think one needs to consider this aspect (domestic political impossibility to bring this issue to international dispute system) to really understand what’s going on between Korea and Japan. 

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