주제어 : 독도; 시마네현 고시 제40호; 영토편입; 무주지 선점; SCAPIN 제677호; 샌프란시스코 대일평화조약; Key Words : Dokdo; Shimane Prefecture Decree No. 40; Territorial Incorporation; Occupation of terra nullius; SCAPIN No. 677; San Francisco Peace Treaty with Japan
영남법학, no.30, pp.473 - 494
Japanese Government claims that the occupation of Takeshima (i.e.
Dokdo) by Korea is an illegal occupation undertaken on absolutely no basis of international law, and no measure taken by Korea during the illegal occupation with regard to Takeshima has any legal justification.
But Japanese assertion is groundless. Japan's incorporation of Dokdo in 1905 was illegal under international law because the island was not terra nullius at the time when the measure was taken. The territorial sovereignty of Korea over Dokdo had been fully established with a new administrative division given to the island via the Korean Imperial Order No. 41 (1900)which is clear evidence that Korea had effective control over Dokdo. The Korean Empire made a clear statement that Seokdo (i.e. Dokdo) is under the jurisdiction of Ulleung-gun, or Ulleung County.
The General Headquarters of the Allied Powers, during its occupation of Japan, applied Directive SCAPIN-677 without issuing any other specific orders. The Directive SCAPIN-677 provides that Dokdo along with Ulleungdo, belongs to the area which is excluded from Japan’s governmental or administrative authority.
The Allied Forces’ decision to exclude Dokdo from Japan’s territory,between World War II and the conclusion of the San Francisco Peace Treaty, was part of postwar measures to implement the results from the Cairo Declaration (1943) and the Potsdam Declaration (1945).
This article proves Japanese assertion is groundless by analyzing the theory of effective occupation and examining historical documents.