Proving Korea's Claim of Sovereignty over Dokdo: The Evidentiary Relevance of Imperial Ordinance No. 41 of 27 October 1900

Abstract

Korea's claim of ownership and possession over Dokdo is based on original title and the continuous exercise of sovereignty from earlier Korean kingdoms up until and through the modern period. Japan argues that Dokdo was terra nullius, belonging to no country, when it incorporated Dokdo into Japan in 1905 as part of Shimane Prefecture. A critical piece of evidence contradicting this Japanese argument is Imperial Ordinance enacted on 27 October 1900 by the Empire of Korea, which purports to indicate that the Empire of Korea understood that Dokdo was an inherent part of Korea. This paper is an attempt to highlight this imperial ordinance in the context of Korea's claim of sovereignty and argues for its relevance and veracity using principles of evidence taken from US law. As a piece of evidence, the Empire of Korea's Imperial Ordinance No. 41 of 27 October 1900 supports two major contentions of the Korean government in its sovereignty claim to Dokdo in contradiction to Japan's assertions of sovereignty. First, it serves to prove Korea's position that pursuant to international law, Korea had sovereignty over Dokdo at the turn of the 20th century and second, it undermines the Japanese claim that Dokdo belonged to no state in 1905 given Korea's ownership, which would invalidate the terra nullius rationale of Japan's annexation of Dokdo. Assuming Korea's position on the content of Imperial Ordinance No. 41 to be true, it is quite evident that it would be deemed to be relevant in demonstrating Korea's case for sovereignty over Dokdo. Nevertheless, an objection would certainly be raised by Japan as to the relevance of the imperial ordinance given the different designation of Dokdo (Seokdo) in the document. In such an instance, the question of relevance comes down to the reason and experience of the judge along with the supporting evidence that has been given.