국제분쟁은 사법적 절차를 통해서 보다는 아직도 외교적 수단인 교섭과 협상 및 국제기구의 개입 등으로 더 많이 해결되고 있다. 그런데, 역설적일지도 모르지만, 이런 비사법적(非司法的) 분쟁해결에 있어서 가장 결정적인 요인은, 아주 투명하고 공정한 지금의 21세기 국제사회에서는, 당사국들의 법리적 주장의 완벽성에 달려있다. 그러므로 영토적 권원에관련된국제분쟁에서당사국들의법리적주장의완벽성을위한준비는, 이미 그 분쟁을 국제재판기관에 의뢰한다는 것을 전제로 하지 않는, 가장 우선적이며 긴급한 절대적 과제가 된다.
영유권 분쟁을 국제재판기관에 의뢰하여 사법적 해결을 구하려 하지 않는 한(한국은 결코 그렇게 해서는 안 되며, 그렇게 하지 않을 것이다), 논리적 주장과 역사적 기록과 증거들에 관해서 “비교적 우위(優位)”에 있는 것만으로는 이 분쟁 문제를 결코‘해결할 수 없다. ’오늘의 국제사회에서 교섭과 협상 등 비사법적 방식에 의해서 이 독도문제를 해결하기 위해서는 법리적 주장과 역사적 기록과 증거들에 관해서 “절대적 우위(優位)”에 서야만 한다.
그런데 독도 영유권에 관한 한국 측의 법리적 주장은 객관적으로 타당하며 완벽한가? 라는 질문에 우리는 아주 마음 편하게 ‘그렇다’고 대답할 수 없다. 그것은 ?1998년 신한일어업협정?에 내포된 법리적 입장의 일관성 결여가 한국의 독도에 관한 영유권 주장의 입지를 객관적으로 훼손하게 된다는 점과, ??1910년 한일병합조약??과 1965년 ?한일기본관계조약?의 문제가 있기 때문이다.
이런 기초적이며, 근본적인 숙제들 말고도 독도 영유권에 관한 한국 측의 법리적 주장을 객관적으로 타당하며 완벽한 것으로 만들기 위해서 더 중요한 문제는, 현재 우리가 주장하고 있는 법리적 주장 속에 우선 적어도 명백하고 기초적인 오류(誤謬)가 있어서는 안 된다는 점이다. 그 가장 대표적인 오류가 이른 바 ‘속도이론(屬島理論)’이라는 허구(虛構)이다. 이런 것들은 빨리 정리되어 극복되어야 한다고 생각된다.As for the sovereign title of the forlorn rock islets, Dokdo Island (Liancourt Rocks), Japan has established persistent, but not so persuasive, legal theories in asserting sovereign title to the islets with inadequate, insufficient historical records and evidences. In contrast, the Korean ability to refute each of the Japanese contentious points seems to be fairly well organized with clear legal reasoning, thus far.
Basically in international law, which is, usually not in the case of ‘municipal’ legal system, a state is expected (or ‘forced’) to show that its title to a territory is better than that of the state contending its sovereign title in a form of an overt dispute. So, an international sovereign dispute is a question of which party can show ‘the better case’. The assessment of the strength of the claim, which is naturally practiced as a relative comparison judgment, shall provide the fundamental basis of the settlement of the dispute, no matter whether it is in the case of a political decision or a judicial decision. Needless-to-say, the objective assessment of the legal claim to settle the case could be practiced most precisely (as a form of relative comparison judgment) in a judicial decision.
In a political decision, like negotiation, mediation or conciliation, the assessments of the legal claim, the logical integrity of the legal corollary may not have been the only decisive factor to conclude the settlement. Usually, other considerations like military, economic strength of the particular contending parties or factual influence of the political power exercised by the blog of states in which a certain party is belonged, have practically rolled as the more decisive factors.
But now, the situations have been changed.
The international societies in 21st century in which we are living now, have already become too transparent and fair to debase the sense of justice by compromising with the considerations like, military or economic strength of a contending party, factual influence of the political power exercised by the blog of states in which a certain party is belonged. Consequently, no matter it be in a political decision or in a judicial decision, the assessments of the legal claim have eventually become the only decisive factor to conclude the settlement. In the case of a political decision, particularly, an international sovereign dispute no longer is a question of which party can show ‘the better case’. Anyhow, in a political decision, a precise, accurate and authoritative assessment of the legal claim in a form of relative comparison judgment could not be available.
So, paradoxically enough, the more urgently when the case is not brought to a judicial tribunal, a contended party is required to give (or show) the more impeccable logical integrity of the legal corollary to prove the sovereign title to the disputed territory, good against all in the international society. So, as far as Korea do not have any intention to bring this Dokdo Island case against Japan, to any international judicial tribunal, the question has become the game only party who can show and prove the best and perfect legal theory , good against all in the international society, shall win.
So, now, we must ask ourselves a question.
Could the logical integrity of the legal corollary asserting the Korean sovereign title to the Dokdo Island be deemed as being assuredly maintained as an impeccable, undisputable legal contention?
Regrettably, the answer is still never affirmative. The stark fact is; we are far against any affirmative answer to this plain question.
(1) This matter of the Liancourt Rocks, the Dokdo Island dispute between Korea and Japan has a fatal connection with the profound and basic historical and legal comprehension. Japanese assertions of the sovereign title to the Liancourt Rocks, are based on the legal comprehension that the Japanese colonial control over to the Korean territories has valid legal justification, the 1910 Japan-Korea Annexation Treaty.
But the invalidity of the treaty could be legally proved with just a simple review of a few historical facts, in spite of the prevailing comprehension among the international society. Actually, the Japanese control upon the Korean territories during those 26 years (from the date of Jan 21st 1919 when the Korean Emperor Kojong was assassinated with the poisoned morning drink prepared by the Japanese controlled court ladies until the day of Japan’s surrender to the Allied Forces of the Pacific War in August 15th 1945) could only be precisely defined as a belligerent occupation. No sovereign title or any legally valid title had ever been entitled to Japan, by this belligerent occupation. So, any alleged Japanese sovereign title to the Liancourt Rocks, is obviously faked and groundless. Japan, however, not only with the encouragement of the prevailing comprehension among the international society, but also with the troubled provisions, like Article 2 of the Treaty on Basic Relations swiftly and wrongly concluded between Korea and Japan in 1965, maintains assertions of the sovereign title to the Liancourt Rocks, the Dokdo Island.
So, strictly speaking in view of the law of the treaty, unless this 1965 Treaty on Basic Relations between Korea and Japan be duly abrogated or revised, the legal corollary asserting the Korean sovereign title to the Dokdo Island should have a formidable obstacle to be deemed as impeccable or undisputable.
(2) Another formidable obstacle to Korean legal corollary asserting sovereign title to the Dokdo Island, is the 1998 Korea-Japan Fishery Pact.
This 1998 Fisheries Agreement between Korea and Japan, with a prominent legal construction that Korea and Japan mutually acquiesces each other’s assertion of sovereign title to Dokdo Island, enhances substantially the Japanese legal stance in asserting their sovereign title to Dokdo Island, as it is.
With all the questionable theory forwarded by Korean scholars from perhaps more sentiment than sound judgment, the Korean Government does not really seem to believe the Supreme Court’s “wise judgment” declaring that there is no reason to fear and avoid joint management as prescribed in this Treaty, in order to protect the exclusiveness of Korean control of Dokdo. The Korean Government seems eager to maintain an attitude of stubbornness, refusing to advance any further agreement to enforce the resource regulating measures in the arranged zone. Japan (the “self-assertive” contender against Korea, the “presumed” legitimate owner of Dokdo) seems prepared to accept the recalcitrant attitude of Korea, by refraining to invoke any due treaty obligations of the preliminary agreement to go into further agreement. For Japan, there is no need to force Korea to claim the invalidity of the whole agreement on whatever grounds. As such, this fisheries agreement looks set to remain ‘a preliminary agreement’, at least for the time being.
This worn-out, disguised treaty should be abrogated by the contracting parties not only for the sake of the law of the treaty and respect for the notion of pacta sunt servanda, but also out of a sense of dignity. As civilized and law-abiding countries, Korea and Japan should find more practical and straightforward arrangements to manage this peculiar situation in relation to the fisheries matter and maritime boundary delimitation between Korea and Japan.
(3) There still remains a pile of technical and business like questions to be scrutinized and completed further for the Korean legal corollary asserting sovereign title to the Dokdo Island, such as digging a new historical evidence easily convincing that “Suck-do(石島)” prescribed in 1900 the Kojong’s Imperial Ordinance 41, means nothing but the Liancourt Rocks, the Dokdo Island.
But prior to all those things mentioned above, the Korean legal corollary should not be logically deteriorated with some evident legal mistake.
Regrettably enough, the Korean legal corollary has already been logically deteriorated with some fatal mistake in making the legal corollary.
The typical case of such mistake is asserting so-called “accessory island theory”.
Some prominent Korean scholars insisted that Dokdo is an ‘accessory island’ attached to Ullung-do. They just wish to assert that Korean sovereign title to Dokdo is not to be ever disputed because Ullung-do and Dokdo could be regarded as in law a unit and the fate of principal Ullung-do (It is indisputably Korean territory.) may involve that of the accessory island, Dokdo. They tried to reinforce their contention by citing the particular clause from the 1928 Arbitral Award, for the Island of Palmas case.
In that well-known Award, Judge Max Huber had explained that a geographical contiguity could not be invoked as any grounds for asserting a sovereign title, meticulously using almost two full pages of his judgment. The particular clause cited by the Korean scholars from the judgment to reinforce their contention was a cautious clue provision placed at the end of his explanation. Obviously, it was a technical caution in proving the effective occupation in case of a group of islands scattered in a near vicinity. The geographical contiguity between the two islands could never be justified the exemption of the burden of proving the effective occupation in part of Dokdo, in any legal sense. As a matter of a fact, Korea has already had abundant proofs for the effective occupation of the Dokdo Island.
Why should Korea beg for such an arbitral, non-sense legal theory?