獨島 領有權門題의 國際法的 考察

Abstract

Dok-do is an island located 47.4 sea miles east of Ulleung-do and 85.2 miles west of Okisyoto of Japan, in 37°14'18"N and in 131°52'33"E

Dok-do has been owned as the territory of Shilla ever since A.D. 512 (the 13th year of the King Chi-jung of the Dynasty of Shilla) and has been ruled and administered virtually by Korea as a part of our territory through Goryeo(高麗) and Chosun (朝鮮) Dynasty without being disregarded or abandoned up the date

Samguksagi(三國史記) that was edited in 1145 is the material which supports this fact and we can confirm it in other many books, in other words, we can find it definitely that Korea had already ensured the sovereign right about Dok-do in many historical respects facts as followings.

First, Samguksagi says that Yi, Sa-bu(異斯夫) conquered Woosanguk(于山國) and subjected it to Shilla in AD 512. Mangiyoram(萬機要覽) which was edited in 1808 says about Woosanguk, "Ulleung-do and Woosan-do are the territory of Woosanguk and it is Woosan-do that Japan is Song-do(松島)". and also we can make sure that Woosan-do is present Dok-do in the books like Cheungbomunheonbigo(增補文獻備考), Se-jong Authentic record of geography(世宗實錄地理志), History of Goryeo(高麗史)

They say the "the distance of Woosan-so and Ulleung-do are not far from, so they can be seen the other side when it is fine"

Second, Tae-jong Authentic record(太宗實錄), Se-jong Authentic record(世宗實錄) goes as followings.

Kim, Lin-woo(金麟雨), got the position of Woosanmureung-choanmusa(于山武陵等處按撫使) form the Chosun Dynasty when they carried the Empty Island policy(空島政策) of making Ulleung-do uninhabited island. In the fact that mentioned above, We can confirm that Woosan-do was included into Ulleung-do, which had been ruled and managed together.

Besides, while Empty Island policy they sent Suto-kwan(搜討官) every 3 years to control the is islands.

All these historical facts show that Woosan-do has never been disregarded.

Third, on the old Korean map, the record involved in Woosan-do was written of the map or on the right of it as well as Woosan-do was marked next to Ulleung-do. It makes sure that Woosan-do is our territory

Fourth, on Oct. 25, 1900, in the document of subject territory, Article 41. it is written that the extent of jurisdiction of Ulleung-do, Juk-do, and Suk-do(=Dok-do) We can find out certainly this fact that Dok-do had been controled by Chosun Dynasty.

Based on this historical facts, we can surely know that Dok-do has had a firm sovereign right historically as an Korean territory

However, Japan insists that Dok-do is their own land, or Dok-do has been incorporated into Japan through Dokeun-hyun(島根縣) Notification No. 40 in 1905, 04 sometimes they take the incompleteness of the postwar documents after the 2nd World War.

The followings are the integrated opinions which criticize the fabrication of Japanese insistence like that.

Ist. Japan still insists that Dok-do is the land of Japan. But this is full of inconsistencies.

① Japanese myth describes that the territory of Japan consists of Honshu(本州), Kyushy(九州), Shikoku(四國) and Dangrodou(淡路島), so Dok-do and even some other parts of the present territory of Japan are not of Japan

② Japan called Dok-do the land which was belonged to nobody through Dokenu-hyun Notification and incorporated it into Japan. But this seems to acknowledge that Dok-do had not been the land of Japan.

③ The lst Japanese book Unjushichonghapki(隱州視聽合記) manifests that Dok-do belongs to the ancient Goryeo(高麗).

④ According to Japanese official documents which was written in 1869, Japanese Foreign Minister and Taejongkwan(太政官)said that Ulleung-do and Dok-do belonged to Goryeo. And in 1877 Taejongkwan ordered that Dok-do should be eliminated from Dokeun-hyun. And the officials of the ministry of Foreign Affairs didn't grand the right to develop Song-do in 1878 owing to the fact that Dok-do belongs to Ulleung-do.

⑤ According to the Japanese maps, Samkukjopyand Map(三國接壤地圖) drawn by Hayashi in 1785, and Chonghoi Map(總繪圖) which was drawn in 18C, Japan painted Dok-do the same color with Chosun.

More to the point, the map of Chosun Eastern Sea which was drawn by Japan ministry of Navy and Chosun Map drawn in 1852 and a number of Japan's ancient maps show that Dok-do is the territory of Chosun.

2nd, knowing that the theory Dok-do is the land of Japan is not in Japan's favor, Japan insists that Dok-do be the land of Japan through prior occupation theory using Dokeun-hyun Notification No.40. But the falsehood of Japan's prior occupation theory is as follows.

① Although the object of prior occupation had to be the land owned by nobody, Dok-do had its owner. In other words, Empty Island Policy was carried out from the 17th year of Tae-jong by Chosun Dynasty. What is more, Chosun dispatched officials every 3 year and ruled Dok-do. And Dok-do incorporated Dok-do into the administrative district through Royal Decree in 1900, it was 5 years earlier than that of Japan. All these historical facts manifest that Dok-do has had its owner.

② There are some points at issue in the process of her proclamation. The national decision on territory incorporation on must be published in the official Gazette, but it was reported in a newspaper of a local government, Dokeun-hyun, So according to the international law, this behavior can't be the expression of a nation and has no effect. Besides it's not reasonable that Japan called Dok-do the land of no owner and Japan incorporated it into the territory of Japan although shogunate of the Dokchogawa(德川幕府) and Maijie government(明治政府) acknowledged that Dok-do belonged to Chosun. As Japanese scholars acknowledge, it's very clear that her behaviors are expressions of imperialism. So according of the international law, her doctrine has no validity

3rd, Japan insists that the postwar documents, SCAPIN NO. 677, has an article Ulleung-do, Dok-do, Cheju-do should be excepted from Japan, and this article is political and administrative. Using the article of The Peace Treaty with Japan that acknowledges the independence of Korea including Ulleung-do, Dok-do, Cheju-do, Japan insists that Dok-do be the land of Japan. But as we discussed before, Japan's opinion is not accord with the international law.

Concluding this study,

① The Cairo Declaration, the Potsdam Declaration have binding force because Japan surrendered unconditionally. So the article "Japan will also be expelled from all other territories which she has taken by violence and greed" must be translated like this, all the other territories are the territories that Japan has taken since China-Japan War in 1895. And Dok-do was taken in 1905 and it gained its independence from the day Aug 15, 1945.

② SCAPIN No. 677 which was written by the General Headquarter of the Allied Forces insisted that Dok-do be the land of Korea, and then it was sent to the Japan government. And the document has a legal power.

③ These islands like Cheju-do, Keomun-do, and Ulleung-do which was mentioned in the Peace Treaty with Japan are only representatives of all the Korean islands. If Japan would restore Dok-do which was separated from Japan to the Peace Treaty with Japan, there should be an article that Dok-do belongs to Japan or a new article from the Allied Forces. It's clearly considered that Dok-do can never be separated from Korea without these active articles.

As mentioned above Japan has insisted on the theory of Japan, Japan's prior occupation theory and postwar documents of the Allied Forces as Japan's opinion that Dok-do is the land of Japan.

Therefore we can manifest that the assertion of Japan is unreasonable.