In recent years, maritime disputes have become highly visible microcosms of broader contests in the Indo-Pacific region. While much attention has been paid to disputes in the South China and East China Sea, a lower profile dispute has bubbled away for years between South Korea and Japan over a maritime feature, known in South Korea as 'Dokdo' and in Japan as 'Takeshima'.
Materially, the seas of the Asia-Pacific matter because they constitute significant trading thoroughfares. Some seabeds are also estimated to hold billions of barrels of oil and gas resources, while dwindling fishing stocks can change the livelihoods of coastal communities. Yet in the case of Dokdo/Takeshima, there is no economic value to what are essentially glorified rocks in the middle of the ocean. But both countries remain in protracted dispute over which can claim sovereignty.
The nature of the dispute
The key to understanding the dispute lies in domestic politics and the way the rocks have become totemic in broader historical debates around Japan's colonial attitudes towards South Korea in the first half of the twentieth century. This is one of a number of disputes about history and identity that impede relations between Tokyo and Seoul, largely as a consequence of Japan's occupation of South Korea. The maritime features are bound to national identity by symbolic politics, which is then exploited by political leaders.
Japan claims it acquired Dokdo/Takeshima as terra nullius in 1905. South Korea argues the feature had been incorporated into the Ullungdo County in 1900, and that Japan's occupation constituted an illegal usurpation. As South Korea was officially annexed by Japan in 1910, Japan's Dokdo/Takeshima claim has been viewed in South Korea as a forerunner to formal Japanese imperialism.
US ambivalence about Dokdo/Takeshima has contributed to its ambiguous status. In the final text of the 1951 San Francisco Treaty (the post-Second World War peace settlement) the clause relating to Japan's return of islands to Korea (Chapter II, Article 2 (a)) mandated that 'Japan, recognising the independence of Korea, renounces all rights, title and claims to Korea, including the islands of Quelpart, Port Hamilton and Dagelet'. It excluded Dokdo/Takeshima.
For South Koreans, Dokdo/Takeshima is a potent symbol of Japanese colonialism. South Koreans have written songs about Dokdo (see here, here and here) and conducted Dokdo K-Pop flashdances (here). As sources in the construction of national identity, museums and schools also promote Korean ownership of Dokdo.
Successive South Korean governments have pursued effective control over the contested formations and the website of the Ministry of Foreign Affairs declares 'Dokdo is the symbol of restoration of Korea's sovereignty'. The 'Dokdo Management Office' currently records two civil residents, 40 coast guards, six lighthouse managers and two staff members - the living arrangements for the two residents are subsidised by Seoul.
Japan's sovereignty claims are driven by conservative symbolic politics around a renewed sense of Japanese nationalism, reflecting a belief that Takeshima was legally incorporated in 1905, as South Korea did not have effective control. The Dokdo/Takeshima dispute has been used to promote Japanese nationalism and conservative unity in government.
Various Japanese defence white papers have declared Dokdo/Takeshima as 'inherent Japanese territory'. The administration of Prime Minster Shinzo Abe has come under fire in South Korea for sending high-ranking officials to the controversial Takeshima Day started in 2005 in the Shimane Prefecture, which claims the features.
Japan has sought to take the conflict to the International Court of Justice. But South Korea has refused on the grounds that there is 'no dispute'. Japan's ICJ advocacy is employed to justify Japan's support for the 'rule-based order'. For South Korea, it has 'effective control' so an ICJ case would present an unnecessary risk of losing the formations. This is similar to Japan's position that there is no dispute over the Senkaku/Diaoyudao in the East China Sea, despite Beijing's sovereignty claims.
A regional complication
Along with Australia, South Korea and Japan are major US allies. Both South Korea and Japan are wary of North Korea's pursuit of nuclear capabilities. And as the only two democracies in northeast Asia, both countries should share values around respect for human rights and the rule of law. Yet nationalism and historical animosity repeatedly derails the relationship.
The recent Australian Foreign Policy White Paper emphasised the importance of protecting and strengthening existing international rules as the norms to govern relationships between countries are increasingly contested by a rising China. The White Paper acknowledges maritime boundary disputes are a 'growing source of potential instability in a more contested Indo-Pacific.' Not surprisingly, the White Paper expresses 'concern' over China's land reclamation and construction activities in the South China Sea, and the potential use of force in the East China Sea and Taiwan Strait.
Yet the Dokdo/Takeshima dispute reveals the limits of the contemporary 'rules-based order' to settle disputes over maritime features. The United Nations Convention on the Law of the Sea can determine whether Dokdo/Takeshima is an island, rock or other type of formation. But it cannot determine sovereignty claims. This is governed by a parallel alternative set of rules around sovereign acquisition.
The legal principle of 'effective occupation' recognises that the most important factor in deciding disputes over territory is through physical possession, in contrast to discovery or other historical or symbolic acts. Effective occupation is demonstrated through establishment of jurisdiction and administration of the territory. But can a state claim sovereignty over rocks? There are inherent gaps and contradictions within the 'rules based order' that challenges its capacity to resolve maritime disputes.
The Dokdo/Takeshima dispute also demonstrates the influence of nationalism and domestic politics in foreign policy decision-making. These narratives around national identity may ultimately entrap countries into pursuing and defending claims in order to appease domestic audiences. Even if these states share common friends and enemies, the governments must balance their domestic political interests with international priorities.
Ultimately, maritime territorial disputes, such as Dokdo/Takeshima, may inhibit cooperation between countries on broader international issues. For Australia, this has implications for the formation of coalitions of 'like-minded allies' in the evolving order of the Indo-Pacific region.