대일강화조약 제2조가 한국에 미치는 효력

This thesis focuses on whether Article 2 (a) of the Peace Treaty with Japan has legally binding effect on Korea which has not been a party to the Treaty on the grounds of international laws relating to stipulations favourable to a third State and treaties having the effect of erga omnes. respectively. Although Article 2 itself does not have legal effect on Korea, Article 21 provides Korea with a legal right to have the benefits of Article 2. Therefore in the case that Article 2 (a) of the Treaty is construed to recognize Dokdo as a Korean territory, Korea shall be entitled to claim the title of the island to Japan, whereas even if the Treaty is interpreted as recognizing Dokdo as Japanese territory, Korea is not bound by the Treaty, because Korea is not a party to the Treaty. The Peace Treaty with Japan cannot be regarded as a treaty which creates an objective regime, because countries, such as Korea, China, and Russia, which had vested interests in disposing former Japanese territories did not accede to the Treaty. According to the reasoning of the award of arbitration over the case of the Red Sea Islands, Article 2 of the Treaty could have the effect of erga omnes only when it is proved that Japan originally had acquired the title to Dokdo before the Treaty was concluded. As a consequence, in addressing the issues of sovereignty over the island, what is most critical is not the Treaty itself, but the circumstances prior to the conclusion of the Treaty.