국제법상 ‘결정적 기일(critical date)’ 이론의 신전개(新展開)와 독도 영유권 문제

Abstract

The theory of ‘critical date’, notwithstanding their status as the principle of law or legal rule, has long been quoted in the majority of the international courtrooms and accumulated much precedents dealing with the territorial dispute case. This demonstrates a usefulness of the theory and its conceptual analysis. The court, in principle, is not obligated to apply that theory to the cases at hand. This is because the normative power of ‘critical date’ is highly dependent on the court's discretion. However, once the court sets a ‘critical date’, the existence as well as time of the justiceable territorial dispute is clearly defined objectively and the parties' status is determined on that critical date. And the date is conclusively frozen or crystallized. Therefore the facts present or acts occurred before the ‘critical date’ could only be admissible as evidence, but the parties' conduct made subsequent to that critical date is nothing but to be considered ineffective in resolving a dispute. For our case of Dokdo, a conflict between Japan and Korea over the territorial sovereignty, the theory of ‘critical date’, as afore stated, is not absolute to exercise a plenary power in legal terms, but the need to study that theory in more comprehensive way is critically important from the academic and strategic viewpoints. This is because it practically dominates over many cases of international dispute. From this background, the paper intends to overview a ‘critical date’ theory and to discuss the way to understand in view of our practical use for the Dokdo case. Therefore, the paper will analyze the theories and trend of relevant international precedents pertinent to our constructive understanding of Dokdo case. Particularly important is this effort of scholarly work since the possibilities of judicial solution for the territorial dispute of Dokdo may increase depending on the change of international politics. Thus, I will hopefully draw some useful points from the current theory of “critical date” that could possibly reinforce our position in Dokdo dispute. In conclusion, I like to suggest that the solution for the creation of critical date regarding a territorial sovereignty of Dokdo should not be from a unilinear approach, rather from a systemic and strategic way considering the new trend of international precedents.