국제법원의 판결기준에 따른 독도문제 해결방안

Abstract

A Study on the Solutions of Dokdo Problem based on the Criteria for the Decision of International Court

by Young Min Youn

Major in Maritime Law and Policy

Department of Maritime Traffic Information

The Graduate School of Korea Maritime University

Abstract

There are several criteria for deciding the sovereignty of disputed territory. For example, the principle of effective possession, historical title, geographical situations, diplomatic documents and special circumstances would be the criteria for the decision. Among these, the most significant criterion in territorial disputes is the principle of effective possession. The evidences of effective possession can be found in historical archives and intergovernmental documents. This principle of effective possession has been repeatedly adopted in several cases. For example, the international courts adopted the principle in the Palmas Island case and in the Minquiers - Ecrehos case. These courts required that the effective possession of the disputed areas should be peaceful, actual and continuous. The main reason why this writer has chosen the Island of Palmas case, the Minquiers - Ecrehos case, Hawar Case, Ligitan and Sipadan Case and Pedra Branca Case is because these arguments from the cases can be applied to the settlement of the territorial dispute over Dokdo between South Korea and Japan. The issues from these cases would be the key to solve the Dokdo problem between South Korea and Japan.

In relation to the Dokdo problem, South Korea and Japan claim both their original and historic title to Dokdo on the basis of effective possession over the islands. South Korea claims that Dokdo has been an integral part of Korean territory since AD512 when the ancient Korean Kingdom Silla (57BC ？ 935AD) annexed Usanguk, a small country consisting of Ulleung-do (Ulleung Island) and its surrounding islands, including Dokdo. They claim Dokdo has been part of Ulleung-do and they have always maintained it and never surrendered it. On the other hand, Japan claims that Dokdo as an inherent part of their territory, and they deny Korean history since AD512. The Japanese government claims that they used Dokdo as a stopover port en route to Ulleung-do and as a fishing ground since mid 17th century. They also insist that they incorporated Dokdo into Shimane Prefecture in 1905. However, their claim about the incorporation is unreasonable. According to their claim, Dokdo was incorporated into Shimane Prefecture by the Shimane Prefectural Notice No. 40 in 22nd February 1905, and they notified to the governor of Ulleung-do, Sim Heung-taek in the following year, 28th February 1906. At that time, Korea could not protest against the Japanese notice effectively, because Japan had already claimed the diplomatic sovereignty of Korea via the Eulsa Treaty in 17th November 1905. This is also known as the Eulsa Protectorate Treaty or the Second Japan-Korea Agreement, and it was influenced by the result of the Russo？Japanese War (1904-1905). The war prompted by Japanese imperialistic invasion scheme toward Northeast Asia. The ratification of the Eulsa treaty was compelled by Japan, with signatures given by neither the King nor the Prime Minister of Korea. Therefore, the annexation of Dokdo by Japan was no legal validity under international law.

On 3rd January 2009, a Korean lawyer, Choi Bong-tae found that in the Japanese government document Japan excluded Dokdo from their territory. Japanese Prime Ministerial Ordinance No. 24 issued on 6th June 1951 stated that the Japanese territory was Honshu, Hokkaido, Kyushu, Shikoku and nearby islands and excluded Jeju-do, Ulleung-do and Dokdo. The ordinance shows that Japan did not have the authority to exercise property right over Dokdo because it recognised it belonged to Korea. This is the conclusive proof of the possession of Korea over the Dokdo.

The two issues, the Shimane Prefectural Notice No. 40 and Japanese Prime Ministerial Ordinance No. 24, are good examples of probative evidence relating to the sovereignty of island. In the Minquiers - Ecrehos case, the International Court of Justice stressed the importance of the direct evidence of effective possession rather than the indirect presumptions deduced from events in the Middle Ages. As stated above, the principle of effective possession is the most important criterion concerning the solution of territorial disputes. For this reason, South Korea and Japan claim their title based upon the principle of effective possession. However, this should not be applied to all territorial disputes without distinguishing different situations. It is a dangerous attitude to adopt a certain international legal theory to particular cases without considering the specific situations of the disputed area. Hence, the writer will analyse common and differing features between above cases and the Dokdo problem. In addition, consideration will be given to which arguments from above cases can be applied to the Dokdo problem. There are many differing features between above cases and the Dokdo problem such as geographical, historical and political situations. Consequently, this thesis will confirm the importance of the criteria for the decision of International Court as a standard for the settlement of maritime territorial disputes between countries.