러스크 서한과 샌프란시스코조약에서의 독도 주권의 권원에 관한 연구

Abstract

In looking at the connection between the San Francisco Peace Treaty and the territorial issues over Dokdo (island), the views of many Japanese scholars including Kawakami Kenjo have something in common with the Rusk Letter. Japanese scholars including Kawakami argue that Dokdo should remain as Japan’s territory even after Korea’s liberation from Japanese colonial rule, because the island was incorporated as Japanese territory in 1905, which was before the Japan-Korea Annexation Treaty of 1910. The Rusk Letter reads that Dokdo was never treated as part of Korea, and since about 1905, has been under the jurisdiction of Japan. On this basis, Japan has no obligation to return the territorial right for this island to Korea. These two views considered Japan’s incorporation of Dokdo in 1905 to be legitimate. From this point of view, the territorial issue surrounding Dokdo leads to the question of the legality and justification of Japan’s incorporation of the island in 1905. In the same context, Ikeuchi Satoshi argues that the Rusk Letter is the only grounds on which to interpret the San Francisco Peace Treaty, saying, “if Japan’s claim of sovereignty over Dokdo in the San Francisco Peace Treaty is based on the Rusk Letter, it is essential to reaffirm the authenticity of what is stated about Dokdo in the Rusk Letter. This is essential to confirming the historical facts surrounding Dokdo around the year 1905.” This means that it is necessary to verify the historical facts mentioned in the Rusk Letter that justify the incorporation of Dokdo into Japan’s territory in 1905. In this regard, this study demonstrates historical proofs that the diplomatic agreement on the territorial dispute over Ulleungdo (1699) and the Dajokan Directive (1877) were still in force in 1905, which makes Japan’s incorporation of Dokdo null and void. In addition, in an attempt to justify the incorporation ex post facto Japan claims that their incorporation of Dokdo is legitimate by reason of the lack of protest by the government of Korea, but this study determined that Japan’s territorial title over Dokdo cannot be established in terms of acquisitive prescription. In other words, Japan’s incorporation of Dokdo and its effective dominance over the island was an act in defiance of the legal title of the Joseon Dynasty; the short period of Japan’s occupancy of Dokdo from 1905 until the Japanese annexation of Joseon in 1910 cannot establish the territorial title. Considering this, the statement made in the Rusk Letter does not coincide with the historical facts. Therefore, Japan’s sovereignty claim over Dokdo based on the Article 2 (a) of the San Francisco Peace Treaty is illegitimate. In examining the formation process of the San Francisco Peace Treaty, the question also arises of whether the Rusk Letter reflected the actual position of the US government regarding Dokdo at that time. It is confirmed that there was a significant discrepancy between the Rusk Letter, the position of the US government at the initial stage of the treaty and the Supreme Commander for the Allied Powers Instruction Notes (SCAPIN). This study found that the Rusk Letter does not accurately represent the position of the US government, but reflects a unilateral stance taken by Japan that took advantage of the confusing situation in East Asia. In this regard, the Rusk Letter cannot be the basis for an interpretation of Article 2 (a) of the San Francisco Peace Treaty.