Dokdo: The San Francisco Peace Treaty, International Law on Territorial Disputes, and Historical Criticism

The San Francisco Peace Treaty is constitutive, and some of its provisions have an effect erga omnes (rights or obligations toward all). But its territorial clause does not purport to define Korea’s boundaries in any detail and does not mention Dokdo, a group of some ninety islets in the East Sea, or Sea of Japan, that are contested by Korea and Japan. In determining what course of action should be taken in light of this development, a study of the status and connotation of these words in modern international law must be rooted in an approach to the Korean territorial dispute in contrast to an approach based on a formalistic reading of the peace treaty. The term “historical criticismapproach,” which appeared in a recent judgment of the International Court of Justice, is an encouraging indicator. International lawyers should be inspired to employ this approachwhen dealing with territorial issues that involve Korea.