戰後 領土處理와 國際法上의 獨島 領有權

Abstract

In the memorandum “SCAPIN No. 677” forwarded to the Japanese government by the Supreme Commander for the Allied Powers on January 29, 1946, outlying areas of Japan were classified into those belonging to Japan. And Dokdo, together with Ullungdo and Chejudo, was included in the portion separated from Japan. Therefore, separation of Dokdo from Japan is to become an established fact unless the Allied Powers make another decision in the future that Dokdo belongs to Japan. In reality, the Allied Powers concluded a “Treaty of Peace with Japan” without making an adverse decision in San Francisco in September 8, 1951. Therefore, the separation of Dokdo from Japan has become so clear as to leave no room for any more pros and cons. Japan, in the meantime, had contended that the secession of Dokdo from Japan in the Memorandum is not a final decision but a temporary measure taken for the sake of convenience on the ground that Paragraph 6 of SCAPIN No. 677 stipulates that “Nothing in this directive shall be construed to indicate that policy of the Allied Powers concerning the final decision on the small islands as referred to in Article 8 of the Potsdam Declaration.” But the purport of this provision is merely to imply that the Memorandum does not preclude the possibility that a different decision be made in the future. Thereafter, unless it is positively stipulated in the San Francisco Peace Treaty of 1951 that Dokdo is changed to Japan's territory, the legal status of the Dokdo islets which were already separated from Japan as part of the Korean territory in September 2, 1945 and identified by the Korean independence in August 15, 1948, shall never change. No referrence to Dokdo in Article 2 Paragraph (a) in the San Francisco Peace Treaty should be interpreted in accordance with such an established or consolidated fact(fait accompli). Proving territorial sovereignty over Dokdo is one of the major practical tasks for the Korean international legal scholars. We must find logical inconsistencies in the Japanese literatures or declarations on territorial claim over Dokdo. Further, we should upgrade studies on Dokdo, synthesize and systematize the drawn results from raw materials in order to intensify Korean territorial claim over the island. Finally, It is very important to make public the Korean legal ownership of Dokdo, far and wide, on domestic and international level as well.