첨각(尖閣)/조어도(釣魚島) 문제에 대한 국제법적 검토 ― 독도 문제에의 함의를 중심으로 ―

This article aims at a comparative analysis of the respective positions of China and Japan on the territorial sovereignty over Senkaku/Diaoyu islands that has recently caused an unprecedented diplomatic tension and conflict between the two states. Despite its close interface with the Dokdo issue, in Korea there have been few in-depth discussions of the Senkaku/Diaoyu question from international law perspective. This article begins with a detailed inquiry into the official positions of China and Japan respectively. The Chinese position is mainly anchored on its historic title over the islands. According to China, the islands over which China had established indisputable territorial rights were "stolen" by Japan during the Sino-Japanese War. Japan also puts forth an argument based on historic title. Japan further argues that its territorial sovereignty is proven by, among others, Japan's incorporation of these islands in 1895, the relevant provisions of the 1951 San Francisco Peace Treaty, China's acquiescence/recognition until 1971 and the United States' support of Japan's position. A comparison of the respective positions of China and Japan shows that while China enjoys an overwhelming advantage concerning historic claims, her "Achilles' heel" lies in the fact that it did not raise any objection to the measures taken by Japan and the United States until late 1971. Given the high likelihood that China will be at a stark disadvantage in international adjudication or arbitration, it will use the issue at hand as a political or diplomatic card while refraining from referring the question to third-party binding settlement. Japan is taking a self-contradictory position concerning the existence or otherwise of an international dispute over Dokdo and Senkaku/Diaoyu questions. While it argues strongly for the existence of a dispute regarding the former, it takes a negative attitude towards the latter. It is to be noted that there have recently appeared some indications for change in a more positive direction, implying a willingness on the Japanese part to refer the Senkaku/Diaoyu issue to the International Court of Justice. This highlights the need for Korea to manage the Dokdo issue more wisely.