독도문제에 대한 일본의 국제법적 연구－‘실효적 지배’를 중심으로－

In the discussion of Dokdo issues, Japanese academics in the area of international law emphasize the relative superiority of the effective control presented in the judgments of the Minquiers and Ecrehos case. In particular, they highlight Japan’s effective control over Dokdo after 1905. However, such a contention would be established not only when the legitimacy of Japan’s incorporation of Dokdo is proven, but also when it is proved that Japan’s effective control over the island thereafter was stable and continuous enough to establish a new title. In this study, based on Ahn Yong-bok's actions at the end of the 17th century, the agreement between Korea and Japan in the Diplomatic Agreement on the Territorial Dispute over Ulleungdo in 1699, and the Dajokan Directive of 1877 which Japan succeeded to as its modern domestic law, it was clarified that Japan's incorporation of Dokdo was not established, as Korea had the title to Dokdo before 1905 and Japan also recognized this. In addition, Japan’ effective control after 1905 was examined in terms of conflict of titles between Korea and Japan. It was also pointed out that Japan's effective control over the island for about four years after 1905 was not sufficient to establish a new title to the island. Furthermore, in terms of the theory of effective control, how should the weight between Japan's effective control over Dokdo after 1905 and Korea's effective control over Dokdo after 1945 be evaluated? It was also suggested that the special nature of modern Korea-Japan relations and the controversy over Japan’s annexation of Dokdo in 1905 should be regarded as “special circumstances” by citing the fact that the judgment of the Minquiers and Ecrehos case stated that, under special circumstances, actions after the decisive date should also be considered. It was further highlighted that there is a need to discuss whether there is any room for Korea's current effective control over Dokdo to be evaluated under international law.