독도의 영유권분쟁 해결을 위한 compromis에 관한 연구

This study does not intend to make an overture that the dispute on territorial sovereignty over Dokdo between Korea and Japan should be submitted to the ICJ for the settlement, but intends to make suggestion that on account of the international circumstance the Korean Government should take into consideration to conclude a compromis inevitably. The Japanes Government regarded the issue of the territorial sovereignty over Dokdo, as a legal dispute, and on September 25, 1954, proposed that the dispute be submitted to the ICJ for a decision. The Korean Government rejected the Japanese Government’s proposal on October 28, 1954. Unlike the municipal court, the international court requires both parties. to agree to a trial in order for a case to de heard. In other words the international court has no jurisdiction over a unilateral suit to settle a case. This is based on the theory that no state is subject to an international trial against its will. There is no arbitration treaty and contromoissory clause detween Korea and Japan, and Korean Declaration of accepting optional clause. Thus the ICJ has no jurisdiction over the dispute of Dokdo without the consent of the Korean Government and the rejection of the Korean Government on October 28, 1954, was lawful in international law. Compromis is a apreement between two or more States with a view to submitting an existing dispute to the jurisdiction of an international court in the absence of a general compulsory jurisdiction and since so many States have failed to accept the jurisdiction of the ICJ, the settlement of international disputes still of great importance today. It is anticipated to the Dokdo dispute that (ⅰ) the Japanese Government refers the Dakdo dispute to the Security Council of the UN in accordance with the provisions of Article 35 and 37 of the Charter of the UN, (ⅱ) the Security Council recomends the dispute to be refered to the ICJ by the parties in accordance with the provision of Article 38 of the Charter, (ⅲ) the Japanese Government declares to accept the recommend of the Security Council, and (ⅳ) on account of the influence of such an international circumstance, the Korean Government might be placed in the situation to conclude the compromis inevitably. The necessarly contents of a compromis are determined by the porties. Therefore, in the compromis to be concluded between the Korean Government and the Japanese Government, it is necessary to stipulate (ⅰ) a provision concerning the critical date to be determinded as the day of the conclusion of the compromis in order to maintain the legal effect of the effective control over Dokdo by the Korean Government and (ⅱ) a provision concerning the exclusion of the invoking Article 9 of the Agreement on Fisheries between Korea and Japan of 1999 in order to exclude the legal effect of the effective control over Dokdo by the Japanese Government in accordance with the provision of Article 9 of the Agreement. To sum up, if above-mentioned conditions are not accepted. by the Japanese Government, the Korean Government should take into consideration that the Korean Government should not conclude the compromis ; and the preparation measures for froming of draft compromis including above-mentioned conditions are required.