독도 문제에 대한 대일평화조약의 침묵

The Silence of the Treaty of Peace with Japan on the Sovereignty over Dokdo: A Subject of Interpretation?

This paper ascertains whether the interpretation of the 1951 Treaty of Peace with Japan is useful for determining the legal status of Dokdo(Takeshima). The treaty, while delimiting the boundaries of Japanese territories in Article 2(a), contains no explicit provision concerning the attribution of Dokdo. In these circumstances, there have been various attempts to establish the status of these islands with reference to the context and travaux préparatoires of that treaty, which have constituted one of the major issues in the controversies between Korea and Japan about the sovereignty over Dokdo. Japan has insisted that, considering the deletion of Dokdo from the Article 2(a) enumerating the islands belonging to Korea, Dokdo remains a part of Japanese territory and that, considering the relevant diplomatic documents of the U.S. government, Dokdo should be regarded as intentionally excluded from the territories that Japan must renounce. According to Japan, as Article 2(a) of the treaty means that Japan recognized the separation and independence of Korea as annexed by Japan in 1910, Dokdo, which had been incorporated into Japanese territory through the cabinet decision of 1905 prior to the annexation, could not be regarded as a territory that Japan should return to Korea. This position has been refuted by Korea suggesting that Article 2(a) mentioning only three islands without referring to Dokdo could not be interpreted as excluding Dokdo from the territories Japan should renounce. Regarding the incorporation of Dokdo by Japan in 1905, Korean government asserts that this act was null and illegal inasmuch as these islands had been a part of Korean territory till then. Given the silence of the Peace Treaty with Japan on the attribution of Dokdo, it should be emphasized that the interpretation of the treaty is not so useful for resolving the problem. Surely the inquiries into the context and the process of the preparation of the treaty could be of a great importance in establishing the stream of the consciousness of the Allied Powers concerning the status of Dokdo and in understanding the details of how the mention of Dokdo was deleted in the final text. However, such an approach could not afford any answer to the question of the attribution of these islands. There has been no agreement among the Allies on the attribution of Dokdo, which made them adopt the Article 2(a) without mentioning these islands. As such the Parties to the treaty could be considered to have intended not to stipulate the attribution of Dokdo. Therefore, the interpretation of the Treaty of 1951 would not be adequate for determining the legal status of these islands. It would be unreasonable for Japan to assert that Dokdo(Takeshima) belongs to it by the 1951 Treaty of Peace in the same way that Korea can affirm its sovereignty over Dokdo without relying upon the interpretation of the treaty.