독도주권과 일본의 본원적 권원 주장에 대한 국제법적 검토

• 영문명: A review on Dokdo sovereignty and Japan's claim of original title from the Perspective of International Law
• 발행기관: 영남대학교 독도연구소
• 저자명: 도시환(Doh See-Hwan)
• 간행물 정보: 『독도연구』제31호, 203~248쪽, 전체 46쪽
• 주제분류: 인문학 > 역사학
• 파일형태: PDF
• 발행일자: 2021.12.30

영문 초록

It cannot but be noted that the Japanese Territorial Sovereignty Exhibition Hall, which reopened in 2020, has emphasized Japan's legal control over Dokdo and Korea's illegal occupation since 1905. This is because not only is the history of Japan's continued invasion of Dokdo's sovereignty based on Japanese colonialism, which is the basis of the Japanese imperialist invasion route, still ongoing, but also disproves that Japan's attempt to invade Dokdo Island is resuming in 1905. In the process of tracing and examining legal problems of the genealogy the research on the legal principle of titles of Japanese Society of international law, which is establishing the policy basis for Japan's claim to Dokdo based on Japanese colonialism, the genealogy of Japan's claim to Dokdo is the 'theory of historical title' by Takeshi Minagawa,'the theory of original title' by Toshio Ueda, 'the theory of subsitutional title' by Kanae Daijudo, and 'the theory of common occupancy' by Gentaro Cerita. After the ‘the theory of effective territorial title’ based on 'the view of history on international law by Yoshio Hirose, which is the peak of the genealogy of the title of Dokdo sovereignty, international legal scholar such as Takashi Tsukamoto and Tetsuya Nakano, who appear as mainstream researchers, are cannot but be noted that all classified as genealogy of 'the theory of original title on terra nullis' and are in line with the claims of the Territorial Sovereignty Exhibition Hall. In particular, Tsukamoto argues that it is necessary for Japan to reinforce uncertain primitive title under modern international law through an territorial acquisition process based on effective possession such as occupation of territory with historical title in the 17th century. On that premise, it is analyzed that the issue of Korea's Dokdo name is used as the basis for terra nullis theory when examining Tsukamoto's historical perception related to the Dajokan Directive of State in 1877, Korean Empire Edict No. 41 in 1900, and Dokdo incorporation in 1905. However, Japan is also facing limitations, such as diluting the problem of calling Ulleungdo Island to Takeshima in the the Dajokan Directive of State into confusion caused by the influx of Western maps due to its opening. On the other hand, unlike Takashi Tsukamoto, Tetsuya Nakano raises the preemption theory based on the international law relationship after the Treaty of Ganghwa Island in 1876, on the premise of some insulation from the historical title, but since the 1904 Korea-Japan Protocol, it ignores the illegal problems of Japan's claim to Dokdo as a separate concept. His claim is clearly expressed in the issue of notification as a preemption requirement, and it is interpreted that there is no international law principle that it is an absolute requirement for the acquisition of a territorial power, while acknowledging the general protocol of the Berlin Conference in 1885 and the obligation of the International Law Society in 1888. In other words, Nakano criticized that there is no international case of reaffirming its own territory in order to confirm its territory in the modern international legal system based on the principle of sovereignty equality, but it is noteworthy that it violates the principle of sovereignty equality since the 1904 Protocol and claims that Japan's invasion of Dokdo and other invasions are based on legal rights under international law. To sum up, Takashi Tsukamoto has limitations in that it follows the legal problems inherent in 'the theory of subsitutional title' by Kanae Daijudo and distorts Japan's confusion with the name of Dokdo. While Tetsuya Nakano insisting on the modern international legal system based on the principle of equality of sovereignty, it exposes the limitations of legalizing Japanese colonialism in issues such as the invasion of Dokdo sovereignty and notification issues.

목차

1. 머리말

2. 한일 국제법학자 간 무주지 선점 논쟁의 개관

3. 일본 국제법학계의 무주지 선점 권원 연구의 검토

4. 무주지 선점 권원 법리 관련 국제판례의 검토

5. 맺음말

키워드

독도주권 국제법적 권원 본원적 권원 무주지 선점 편입 실효적 지배 국가권능의 발현 통고 일제식민주의 평화공동체 Dokdo's sovereignty International legal titles original title terra nullis occupation incorporation effective control exercise of state authority notification Japanese colonialism Peaceful community