17세기 말 울릉도쟁계 관련 한·일 ‘교환공문’의 증명력: 거리관습에 따른 조약상 울릉·독도 권원 확립·해상국경 묵시 합의

The Korean-Japanese Insular and Maritime Frontier Skirmish of the late 17th century was touched off by the kidnapping of Mr Ahn Yong-bok and other Korean fishermen in the waters off Ulleungdo in spring 1693 by the Japanese fishermen having sailed from Yonago, Houki, Tottori Prefecture. The diplomatic skirmish, referred to as Ulleungdo Jaenggye(鬱陵島爭界: 1693-1699) in Korean official historical records, suffered twists and turns because of the territorial ambitions of Tsushima Island‘s governor acting as the agent of the Shogunate in Tokyo. Mr Ahn and others were taken to the Oki Islands and thence to Houki on the mainland for further questioning. During his “custody” in Japan, Mr Ahn challenged the Tottori Prefecture's permission allowing its fishermen to navigate to Ulleungdo and Dokdo and demanded its prohibition. Mr Ahn was given a letter from the Shogunate confirming Korean title to Ulleungdo, but was, on his way back home via Nagasaki, deprived of it by the Tsushima governor harboring ambitions on Ulleungdo. Japan repatriated Mr Ahn via Busan(Dongrae) in September the same year. Negotiations failed to progress smoothly due to Tsushima's own ulterior motives distinct from those of Edo(Tokyo). Tsushima attempted to beguile Joseon into believing that there existed ‘Takeshima’ distinct from Ulleungdo. The Joseon Court dispatched a revised letter via Tsushima in August 1694, rebutting the latter's ploy and stating bluntly that Ulleungdo was in fact identical with ‘Takeshimka’ and that it constituted part of Joseon's territory. In spring 1696, apparently disappointed with the stalled diplomatic negotiation process, Mr Ahn went out to the sea to encounter Japanese fishermen again near Ulleungdo. He shouted, “Do you (Japanese fishermen) not know Ulleungdo and Jasando(Dokdo) were within the Korean frontier?” to chase and drive them out of the area. Mr Ahn and others then sailed along to Houki again, this time of his own volition. Mr Ahn's second campaign helped bring the deadlocked diplomatic parleys to a belated settlement in February 1697 when in its reply the Shogunate, accepting Joseon's demands, notified her of its decision reaffirming Korean title to Ulleungdo and acquiescing in the Korean dominium of Dokdo. There followed Joseon's 1698 acknowledgement and the Shogunate's 1699 confirmation letter. In arriving at agreement, both the Joseon Court and the Shogunate demonstrated their common legal conviction on the distance criteria as a special custom binding upon both parties. A bilateral treaty was thus concluded in simplified form through the Exchange of Letters, i.e. Joseon's August 1694 letter and the Shogunate's February 1697 reply. The international agreement has thus replaced Joseon's original, historical title with the treaty-based definitive title. The primacy of a special custom or particular practice over general custom has been given its legal expression in the ICJ's Right of Passage over Indian Territory case: “Where therefore the Court finds a practice clearly established between two States which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that practice for the purpose of determining their specific rights and obligations. Such a particular practice must prevail over any general rules”(Merits, 1960, p.44, italics added). In determining the ownership of Ulleungdo in Tokyo in 1696, the Shogunate's chief executive officer(執政) was quoted as saying that “It was not a good policy to compromise good neighborly relations for “the useless small island””. A fortiori, it is reasonably presumed, the Shogunate must not have allowed even a smaller island such as Dokdo to prejudice bilateral relations. This fact and inference unequivocally evidence the Japanese lack of animus occupandi and her relinquishment of any claim. Express objection or reservation should have been tabled and communicated to Joseon in the Exchange of Letters, if Japan should ever be entitled to a claim, if any. "The absence of reaction may well amount to acquiescence. The concept of acquiescence is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent."[The ICJ's Gulf of Maine case, 1984, para.130 & Malaysia/Singapore case, 2008, para.121]. Japan invokes the Shogunate-issued licence for navigating to Ulleungdo and even to Dokdo as the evidence of a title or right. International jurisprudence, however, has consistently declined to recognize such water-related licensing activities as proof of manifestations of state authority[Eritrea/Yemen Arbitral Award, 1998, paras.263 & 334; Nicaragua/Honduras case, 2007, para.195]. And illegal navigation or navigation without licence may not be adduced as the ground for a valid claim, territorial or otherwise. And the Shogunate's 1696 revocation of the licence for sailing up to Ulleungdo and its prohibition of navigation to Dokdo attest to the Shogunate's tacit consent to the maritime boundary down below Dokdo. Relying on the Shogunate's Exchange of Letter of February 1697 and its tacit recognition of Joseon's title to Dokdo, the Joseon Court decided to dispatch to both islands the public inspection official accompanied by his entourage every three years. This practice was manifested regularly until 1900 when Emperor Kojong proclaimed an Edict instituting the Uldo County comprised of Ulleungdo and Dokdo. The actual, peaceful and continuous display of state authority testifies the Joseon government's unswerving intention and will to act as the sovereign over Dokdo. The Japanese acquiescence in Korean title to both islands was confirmed again in the Meiji government's 1870 and 1877 official documents, appended with an Ulleungdo-Dokdo sketch map and compiled, after a meticulous field study and in-depth research, by the Foreign Ministry and the Prime Minister's Office, respectively. Indeed, Japan had recognized Dokdo as appurtenant to and dependent upon Ulleungdo for more than 200 years up to 1905. The ICJ in the 2007 Nicaragua/Honduras case noted Nicaraguan failure to elicit any protest against Honduran activities qualifying as effectivité despite the former's knowledge that could be fairly assumed(para.208) to accord a legally binding effect on the reticence. In a similar vein, the ICJ held in the 1992 El Salvador/Honduras case that Honduran protest against El Salvador's long history of acts of sovereignty came too late to affect the presumption of acquiescence, admission, recognition or tacit consent to the situation(para.364). And in the 1962 Temple of Preah Vihear case, the ICJ had this to say: “…when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality”[p.34]. “It is a well established principle of the law of nations that the state of things which actually exists and has existed for a long time should be changed as little as possible” [Grisbadarna case, Norway/Sweden, PCA, 1909, p.6]. Indeed, the treaty regime agreed upon in the Korean-Japanese Exchange of Letters of the late 17th century was meant to terminate, and did, de facto and de jure, terminate the diplomatic dispute over any territorial sovereignty and the maritime frontier in the East Sea once and for all. It is all too clear by now from relevant Japanese historical records that Imperial Japan allegedly "incorporated" Dokdo in 1905 during the Russo-Japanese War and just before depriving Joseon of her diplomatic power, knowing that it was not terra nullius. Japan's beleaguered argument of “inherent territory” or of the alleged “incorporation” is thus neither well founded on historical facts and geographical grounds, nor validly established in international law.