국제법상 주도와 속도의 법이론에 근거한 울릉도의 속도인 독도의 법적 지위에 관한 연구

Abstract

It is possible that a group of islands, a natural unity, or an unit as a whole may under certain circumstances be regarded an entity in law, and that the legal status of the principal island extends to the rest, namely, the sovereignty over the entity in law as a whole, may be deemed, in the absence of any evidence to the contrary to extends to the all parts of the entity that is a principle of international law named as "principle of same identical legal status of all parts of the entity". The principle mentioned-above is generally recognized by scholars views and judicial precedents. The views and the precedents are recognized as a subsidiary means for the determin ation of rules of law by the provision of Para. 1(d) of Art. 38 of Statute of the Internatio nal Court of Justice. The results of the application of the principle to the some problems concerning territorial sovereignty over Dokdo are as follows. First, The Surrender of Usankook to Shilla It must be made clear whether Usankook consisted of only Ulneungdo or also included near by Dokdo. The Japanese Government asserts Usankook consisted of only Ulneungdo, but contrary to the Japanese Government's assertion the Korean Government asserts Usankook consisted of not only Ulneungdo but also Dokdo.However, making an attempt to apply the principle to Usankook, on account of Dokdo as a attached island to Ulneungdo, Usankook should be consisted Ulneungd o and Dokdo. Second, Imperial Ordinance No.41 On October 25, 1900, Kojong promulgated the Imperial Ordinance No. 41. Art. 2 of the Ordinance stipulates that Uldo County shall have under its jurisdiction the whole island of Ulneungdo, Chukdo and Sokdo. Sokdo stipulated in the Art. is Dokdo. but the Japanese Government asserts Sokdo is no Dokdo. However, even if Sokdo is not Dokdo as the Japanese Government's assertion, making an attempt to apply the principle to Uldo County, on account of Dokdo as a attached island to Uldo(Ulneungdo), the County should have under its jurisdicti on Dokdo. Third, The Peace Treaty with Japan On September 8, 1951, the Peace Treaty with Japan was signed by 48 allied powers on one hand and Japan on the other. Art. 2 of the treaty provides : "Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet., But there is no provision in the Art. Dokdo as being Korean territory or Japanese territory. Therefore, The Japan ese Government asserts Dokdo was not separated. However, as a result of the application of the principle to the Art. Dokdo as a attached island of Dagelet(Ulneungdo) was separated from Japan by the treaty.