국제법상 권원 법리에 대한 국제판례가 독도 주권 문제에 주는 함의

Abstract

To defend the territorial sovereignty in terms of bridging the gap between Dokdo in case it is referred to the international court when the advance preparation is require d. It means legal preparation through understanding and analysis of international cases for territorial disputes. Republic of Korea is advocating original title and effecti ve exercise of sovereignty on Dokdo, while Japan is insisting on preoccupying terra nullius in 1905 along with original title. If Dokdo has been referred to international court, each side will submit proofs on original acquisition of sovereignty, long-term effective sovereignty exercise evidence, preoccupying terra nullius. If you look at the common ground of the international cases on sovereignty judgment, most of them were recognized under the effective sovereignty exercise if the treaty and uti possidetis juris were not applied. There are cases in which historical titles are recognised, but the numbers are exceptionally small. Recent island dispute cases involving effective sovereignty have reviewed various evidence that is the true nature of the peaceful and continuing exercise of state authority over disputed islands and ruled in favor of those who present dominant evidence. As a result of reviewing international cases related disputes over the sovereignty of islands isolated without human residence have the following commonalities: ① The fact that remote islands are rarely defined in treaty documents. ② The fact that there is little room for the uti possidetis juris to be applied, ③ and that evidence such as literature and records is scarce, and even if there is, it is difficult to give evidence due to lack of objectivity. Consequently, the relative assessment of effective sovereignty can lead to the recognition of the recommendation. The ICJ applies treaty, uti posidetis Juris, and effective control in order when resolve territorial disputes. Analysis of San Francisco Peace Treaty with regard to Dokdo will be the first place, effective sovereignty exercise will be more likely to be determined in accordance with the island if decisions are not in accordance with the interpretation of treaty. Further consideration will also be needed given that both Korea and Japan claim historical titles.