독도 영토주권과 격지 무인도에 대한 상징적 병합·가상적 실효지배

Korea’s easternmost islet of Dokdo represents a living reminder of Japan’s persistent but patently ill-founded territorial ambitions spanning more than a century. This article purports, on the strength of a historico-legal analysis and relying on inference and analogy, to fill in an alleged ‘hiatus’ and to help bridge the alleged gap in the otherwise seamless evolution in the display of Korean state authority over Dokdo. An application of contemporary international jurisprudence to the Dokdo question from a diachronic perspective would provide a bird’s eye view of the historical development, evolution and consolidation of Korean territorial title to the remote, formerly uninhabited islets. Korea acquired original title in 512 A.D. when the Silla Kingdom(57 B.C.-935 A.D.) conquered and annexed the Usan Kingdom comprised of Ulleungdo and Dokdo. In the early Joseon Dynasty(1392-1910) the government-compiled National Geography annexed to the Annals of King Sejong(『世宗實錄』地理志: 1432) featured an eye-witness geographical account in the Section of ‘Uljinhyeon(縣)’(Uljin County), Samcheok Regional Military Command, Kangwon Province: “The two islands of Mureung and Usan are located due east of the (Uljin) Hyon in the midst of the East Sea. They are not so far away with each other and can be observed on a clear windy day...”. This premier record represents Joseon’s symbolic annexation of both islands whereby it proclaimed its will and intention to act as sovereign over both in 1432 when no other state staked out a claim. It would nowadays be tantamount to publishing its sovereignty in the Official Gazette. And the two islands have since combined to constitute one community to function as the de jure maritime frontier for generations. International jurisprudence, while establishing that effective control would trump an ancient or historical title, also recognized the need for relaxing the normal, rigorous requirement of the display of state powers in relation to a remote isle without a permanent population. Hence, “Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and space. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas.”[Island of Palmas Arbitration, 2 UNRIAA, 1949, p.840]. In 1425 King Sejong(1418-1450) appointed Gen. Kim In-wu the inspector of the two islands who, however, failed to discover Dokdo. This failure notwithstanding, one may well make out a case for virtual effectiveness. For Joseon had taken an actual possession of Ulleungdo, the most important island in the region from which state functions could easily extend to the adjacent islet of Dokdo located within its visible range[Von der Hyedte, 29 AJIL, 1935, p.463 & 468]. Mr Kim Ja-ju's visit to Dokdo in 1476 on King Seongjong's(1469-1494) instructions is also a tower of strength to these inference. These reasoning is substantiated by Judge Huber’s Palmas obiter dicta: “[A]s regards groups of islands, it is possible that a group may under certain circumstances be regarded as in law a unit and that the fate of the principal part may involve the rest.”[Ibid., p.855]. This is despite his own verdict: “The title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law.” and “[N]or is the principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead to arbitrary results.”[Ibid., p.869 & 855]. In any case virtual effectiveness over Dokdo was replaced by actual effectiveness in 1694 when Gen. Jang Han-sang accompanied by an entourage of about 150 men, inspected Ulleungdo and visited Dokdo under instruction from King Sukjong(1674-1720). It was followed by a regular inspection mission dispatched ever since on three-year intervals. Unmistakably and incontestably, these visits were intended to exercise and display state authority(effective control). And these acts were combined with the previous symbolic annexation to complete the effective occupation of Dokdo and to accomplish a definitive title, according to the Clipperton Arbitration reasoning[26 AJIL, 1932, p.394]. Finally, King Kojong(1863-1907) in the latter half of the Joseon Dynasty officially abrogated the ‘no-inhabitant’ policy to replace it with an active settlement one. Starting in 1883, hundreds of people from the mainland were relocated to Ulleungdo with a liberal supply of grains, livestock, carpenters, blacksmiths and even defensive weaponry. Joseon’s sovereignty over the two islands was once again confirmed in the Meiji government’s 1870 and 1877 documents. Furthermore, Emperor Kojong, as he then was called, proclaimed Royal Edict No.41 in 1900 to restructure the local administrative apparatus and set up the Uldo County(鬱島郡) consisting of Ulleungdo and Dokdo in a move to further consolidate effective control of the two islands.