Why Won't the Koreans Take Up Japan´s Offer to Bring the Dokdo Issue before the ICJ?
Really, why hasn´t the Republic of Korea taken up Japan´s offer to take the Dokdo dispute before the International Court of Justice (ICJ)? After all, it seems only natural that if the Koreans believe that they have a legitimate claim to Dokdo, they should be more than willing to submit to arbitration by an authoritative and objective international organization such as the ICJ.
A few things to keep in mind about the ICJ: A territorial dispute can only be brought to the ICJ if both countries involved in the dispute agree to settle it there. Korea sees no reason to take the sovereignty of Dokdo before the ICJ, so the Japanese cannot have their day in court. Also, as the rulings from the ICJ do not have any legal force, neither country has to heed the judgement of the Court. Therefore, if either Japan or Korea (or both) do not like the decision handed down by the ICJ, they could simply ignore it. Taking a dispute to the ICJ is akin to a "gentleman´s agreement", and there is no guarantee that either the Korean or Japanese government would follow an ICJ ruling that was not in their favor. As responsive as these two governments are to public opinion in their respective countries on this issue, it is really hard to believe that either government would respect a ruling on the sovereignty of Dokdo that would go against popular national opinion. So much for the ICJ...
Even if an ICJ ruling over Dokdo could be respected and accepted by the public and governments of both countries, there are serious mitigating circumstances that would make the Koreans rethink the wisdom of taking the issue to the ICJ. If past decisions of the ICJ are taken into account, it seems the ICJ does not take into consideration the concept of imperialist aggression, nor does it weigh judgements heavily on historical background. Two cases brought before the ICJ are instructive:
The Minquiers and Ecrehos Case (1953) between The U.K. and France has been pointed out as similar to the dispute over Dokdo. The Miniquiers and Ecrehos are uninhabited reefs off the coast of northern France. Britain and France agreed in the 13th century that these reefs would belong to France. The French did not take any administrative action to formally incorporate the islands, assuming that they were naturally French territory. Later in the 1800s, Britain saw the fishing value of the islands and began to use them and to take administrative action to recognize them as British territory. When the two nations took the issue to the ICJ, the Court took into account the administrative steps that Britain had taken and their detailed instances of "effective occupation" since the 19th century. The French had the claim of historical legitimacy, but the ICJ ruled in favor of the U.K. because France´s failure to lodge a protest was decided to be an abandonment of its territorial rights. Likewise in the case of Dokdo, the ICJ might rule that Korea was negligent in keeping its rights to the islets, following the precedent of the Minquiers and Ecrehos Case. This is especially true if the Court cannot take into consideration the concept of imperialist aggression (i.e. the fact that the Japanese Empire took over the foreign affairs of Korea in 1906, thereby not allowing an effective Korean protest to the Japanese takeover of Dokdo).
The other case that may help us understand why Korea won´t go before the ICJ is that of the Preah Vihear Temple Case (1962) between Thailand and Cambodia. Thailand and French Indochina agreed to a demarcation of their common border, and the Preah Vihear Temple was to be on the Thai side of the border as stipulated by treaty. However, when the Thai King commissioned the French military to make a map to be attached to the treaty, the temple was shown on the Cambodian side of the border. The Thais considered the error a minor one and did not correct it, thinking that as the treaty clearly mentioned that the temple would be in Thai territory, the error would not be problematic. When brought before the ICJ, the case was decided in favor of Cambodia, since the Thais had not requested correction of the map and had themselves distributed copies of the map. Again, the ICJ´s view was that the country that did not speak up to correct something that they did not agree with was the one to be punished. This is particularly troubling since the Court put more importance on a map and not the treaty the two states had signed. One can also see how the ICJ again did not take into consideration the actions of an imperialist power.
Such precedents would not bode well for the Koreans if they decided to take the Dokdo issue before the ICJ. If Japan were in Korea´s position, if the shoe were on the other foot, nobody would expect that Japan would be willing to go to the ICJ considering the nature of that court. The Japanese Foreign Ministry is well aware of the nature of the court and of Japan´s potential advantage before the ICJ. The Koreans rightfully will not take the ICJ into consideration; instead they state that Dokdo is actually NOT a disputed island, since they are not the ones arguing over its sovereignty. The situation is just that of Japan wanting something that is not theirs.