국제법상 영역권원으로서 실효적 점유와 독도에 관한 연구

This paper aims to evaluate whether South Korea’s policy on Dokdo is appropriate under international law, particularly in light of Japan’s strengthened claims to sovereignty over Dokdo. The paper focuses on the theory of effective occupation as a legal basis for South Korea’s policy. Effective occupation is a crucial element in establishing territorial sovereignty under international law, especially in cases of unoccupied territory, where it is essential for transforming an immature claim into a mature and definitive right. The paper analyzes three major international precedents related to effective occupation. In the Palmas Island Case (1928), the court held that the establishment of sovereignty requires not merely discovery but the continuous and peaceful exercise of state authority. In the Clipperton Island Case (1931), it demonstrated that effective occupation could be recognized based solely on the declaration of sovereignty, depending on the territorial environment. In the East Greenland case (1933), the two elements of effective occupation were identified as “the intention and will to act as sovereign” and “the manifestation or actual exercise of state power.” Through this analysis of precedents, the requirements for effective occupation under international law were derived as two elements. These are the objective element of “substantial, continuous, and peaceful manifestations of state functions” and the subjective element of “the intention to act as a sovereign.” Applying these requirements to Dokdo, Korea has discovered and managed Dokdo since the Silla period in 512, and has continuously exercised state functions such as stationing police there since 1954. Since Korea exercised its state functions in a substantial, continuous, and peaceful manner over Dokdo until 1905, Korea’s claim to Dokdo can be interpreted as having matured into a definitive claim through prior occupation and effective control. However, Japan’s claims to sovereignty over Dokdo and the patrol activities of the Japan Coast Guard since 1905 have posed challenges to the peaceful maintenance of Korea’s effective control over Dokdo. Therefore, to strengthen the definitive rights over Dokdo that Korea has already secured, it must systematically organize legislative, administrative, and judicial measures regarding the effective control of Dokdo in conjunction with decisive deadlines, and effectively respond to Japan’s territorial claims.