외국의 도서선점에 대한 일본의 승인과정과 그 논리－일본 외무성 편찬의 『國際法先例彙集(2)』을 중심으로－

Kokusaihosenreiishu(Collection of International Law Precedents, CILP) 2, published by the Bureau of Treaty, Japanese Ministry of Foreign Affairs, described the recognition and logic of Japanese government on 7 cases of occupation of islands in foreign countries. By looking into the recognition process and logic of Japanese government on these seven cases, this paper attempts to get clues for finding desirable solutions for Dokdo question. First, regarding dispute over Clipperton Island between France and Mexico, Japanese government reserved its recognition under the judgement that it would take a pretty long time for Mexico to finish the approval process, even though Mexico accepted in March 1909 the arbitration made by Italian Emperor that gave France the title of the island. And Japan understood that Mexico consented the arbitration court for the strategic purpose of reapplying the case to the title of Chamizal, on which Mexico is disputing with the United States. Second, though Japanese people were engaged in business in Midway Island and Wake Island, Japan renounced its territorial claims on those islands and strived to secure vested interests of Japanese people when the United States took a firm stand. This measure of Japanese government looks similar to Pratas Islands case, but contrasts with the cases of Diaoyudao Islands(Uotsurijima) and Dokdo. The mutual concession of the United States and Japan on these islands and Minamitorisima reveals the process of territorial expansion by imperialistic countries. Third, Japan attempted to incorporate Pratas Islands under the principle of occupation of terra nullius but failed due to strong opposition from China and tried to protect the property rights of Japanese people. This policy of ‘first economic activity, then territorial incorporation’ was the typical measure of terra nullius and applied to Diaoyudao Islands and Dokdo. The fact that CILP conceals and distorts the facts unfavorable to Japan reveals that the purpose of its publication was to justify the wrongful occupation of terra nullius. Fourth, Jan Mayen Island remained an uninhabited island after it was discovered by a Hollander. But Japan recognized Norwegian dominium on the island when Norway proclaimed dominium on the island, to which no country raised an objection. Compared with Dokdo, this case is similar in the sense that the principle of terra nullius preceded historical origin. The fundamental difference is that Japan justified its occupation one-sidedly under the pretext of no objection from foreign countries without officially notifying its dominium to related countries. Fifth, Japan used prudence and caution in recognizing Norwegian dominium on Bouvet Island, on which there was dispute between England and Norway. Later Japan knew that England decided to yield the island for the promotion of friendship. But Japan recognized 4 months after the notice of Norwegian dominium on this island. This England case can be an important example in settling the Dokdo case. Sixth, Japan looked into the ground of Norwegian claim of the dominium on PeterⅠIsland in details and recognized it with the final judgement that recognition would be benefitial to Japan. In making its final decision, Japan attached great importance to occupation of terra nullius, effective administration, and the recognition of other countries rather than the theory of inherent territory. Compared with Japan’s position on Dokdo, this case has both common and different points. Seventh, when Denmark claimed dominium on Greenland in May 1920, Japan looked into the views of other countires and reported its recognition conforming to the announcement of the United States. When Denmark entered a lawsuit against Norwegian claim of dominium at the International Court of Justice, Japan withheld its final response to any of the disputing countries under the pretext of a very ‘delicate’ matter. This means that Japan can reverse its prior position any time when circumstances change. Japan recognized Danish dominium after Norway announced that it would accept the decision of the International Court of Justice. The analysis of the above cases indicates that Japan responded to the occupation of islands in other countries differently in consideration of Japan’s direct or indirect interests. For the cases that are not relevant to Japan’s interest, Japan prudently expressed its recognition after investigation of the positions of relevant countries or the acceptance of the decisions of Arbitration Court or International Court of Justice. When Japan faced strong opposition to its attempt to incorporate uninhabited islands, it renounced territorial occupation and instead sought to maximize its interests.