서강대학교

초록/요약

There has been a taboo in Korea: Do not talk about taking the Dokdo issue before the International Court of Justice (ICJ) since the issue is not a legal dispute therefore is not subject to the jurisdiction of any international courts or tribunals. This attitude is also reflected in the Ministry of Foreign Affairs of Korea’s consistent reply to Japanese proposals to resolve the issue in the ICJ. Although denying the existence of any legal dispute over a disputed maritime feature is a common strategy for any country currently occupying the feature, international courts and tribunals have constantly found that “mere denial of the existence of a dispute does not prove its non-existence.” As such, a claim of no legal dispute concerning the conflicting sovereignty issue over Dokdo between Korea and Japan would not likely be accepted by any international courts and tribunals. Moreover, as seen in 2006 when Korean patrol ships barely avoided a clash with Japanese coast guard which tried to enter waters controlled by Korea off the sea of Dokdo, the issue is a tinderbox that could ignite with any spark. Now with Abe administration’s rightward shift to militarism which seeks to revise its pacifist constitution by 2020, there is no guarantee how long the status quo concerning Dokdo would continue. If a military conflict occurs between Japan and Korea, two biggest allies of the United States (US) in the region, this could draw international (or US) attention which would, in turn, lead the United Nations Security Council (UNSC) to adopt a resolution recommending to refer the issue to the ICJ in accordance with Article 36(3) of the UN Charter. The Corfu Channel case was referred to the ICJ upon the UNSC’s adoption of resolution in 1947 despite Albania’s objection to the court’s jurisdiction. Moreover, a recent arbitral award concerning a dispute between China and Philippines in the South China Sea has stirred up anxiety in Korea that Korea might be dragged into the compulsory dispute settlement procedures of the United Nations Convention on the Law of the Sea (UNCLOS). Concerning Dokdo, Korea acquired a complete title over it in 517 A.D. and has maintained the title with effective possession as required by the relevant international law except for the period of Japanese colonization. Around that time Japan attempted to acquire a title over the islands in spite of its knowledge that they already belonged to Korea, but failed to meet the requirements of the relevant international law. Korea’s independence and territorial integrity was affirmed by the international community in the 1951 San Francisco Peace Treaty which mandated Japan to“renounce all rights, titles and claims to Korea”and Korea resumed physical possession of the islands by delineating the 1952 Rhee Line which included the islands within its jurisdiction. From this time forward, Japan issues phatic diplomatic protests and proposals to take the issue to the ICJ in vain attempts to interrupt Korea’s title based on wrongful assumption that Korea’s title is rooted in the prescription. Although Korea has declared not to subject its territorial sovereignty to a third party intervention in accordance with the relevant procedures of the international treaties and conventions, the UNSC has an authority to recommend the states to refer any dispute to the ICJ in case it determines the continuance of the dispute is likely to endanger the international peace and security under Article 36 of the UN Charter. Therefore, no matter how low the possibility might be, reason dictates that we prepare for the worst. This paper aims to scrutinize the Japanese assertions with a view to provide coherent counter-arguments that can be employed in both the preliminary objection and merits proceedings stages in the relevant international courts and tribunals. To that end, it analyzes relevant international law and jurisprudence which would shed light on effective articulation of arguments and strategies