근대 국제법상 무력사용과 병합에 관한 재검토 (Use of Force and Annexation under Modern International Law Revisited)

서지정보

· 발행기관 : 국제법평론회
· 수록지 정보 : 국제법평론 / 59호 / 1 ~ 34페이지
· 저자명 : 이서희

초록

The UN Charter of 1945 clearly banned the use of force and annexation. Recently, scholars of international law (hereafter “IL”) have questioned whether IL permitted the use of force before 1945. Reflecting such academic discussions and recognizing the differences between modern and current IL, this study reviewed the concepts of the use of force and annexation, aiming to determine whether modern IL allowed such practices. First, before the creation of the League of Nations (hereafter “LN”) in 1919, the absence of international organizations and judicial agencies made the views of IL scholars important sources of IL. In addition, IL governed European countries at the time, so it focused on the state practices and discussions of those countries. Second, after the establishment of the LN, member states intensively analyzed provisions related to the aggression in the Covenant of the LN and discussed applicable cases. Unlike current IL, which simply applies to all countries in the international community, members of the LN were able to participate in the law-making process at the time.
This study found that before the LN, there was general consensus that use of force that led to invasions of other countries' territories should be banned. During the 19th century, the practice of requiring nations to give just cause for starting wars was maintained, and IL scholars agreed that armed intervention should be prohibited. This is because national sovereignty began to be emphasized in the 18th and 19th centuries when only European countries were subject to IL, and they had no choice but to respect each other's sovereignty. Also, whether a state was allowed to invade another one affected the issue of annexation related to territorial acquisition. When war broke out during this period, the first step was aggression, followed by occupation and conquest, and culminating with the victorious states annexing the territories or colonies of the defeated nations through the conclusion of peace treaties.
Meanwhile, this study found that treaties in the 20th century did not support annexation of invaded, occupied, or conquered territories by European countries. This non-annexation consensus resulted in the creation of a mandate system after World War I. After aggression, occupation, and conquest, the victorious nations decided to assign the territories to mandatories designated by the Paris Peace Conference, instead of annexing the defeated countries’ territories or colonies through peace treaties. Articles 10–16 in the Covenant of the LN established controls for aggression. The problem was that because these articles did not explicitly stipulate an “aggression prohibition,” they gave rise to controversy regarding whether to ban aggression. However, the fact that the LN regarded aggression as an international crime suggests that aggression for annexation was also illegal. This is evident in the case of annexation caused by the aggression of the LN Members. Japan invaded China intending to annex Manchuria and founded Manchukuo. However, the LN criticized the creation of Manchukuo and likewise condemned Italy's aggression toward and annexation of Ethiopia. It issued sanctions against Italy for this aggression, but these measures proved unsuccessful; ultimately, Japan and Italy left the LN and, along with Germany, started the Second World War.
Before the LN, European countries and IL scholars agreed that the use of force against another country's territory should be prohibited. Subsequently, the members of the LN, who had mainly participated in developing IL, recognized that aggression and aggression-based annexation should be prohibited. In conclusion, this research found that pre-1945 rules and discussions sought to prevent aggression and aggression-based annexation.

영어초록

The UN Charter of 1945 clearly banned the use of force and annexation. Recently, scholars of international law (hereafter “IL”) have questioned whether IL permitted the use of force before 1945. Reflecting such academic discussions and recognizing the differences between modern and current IL, this study reviewed the concepts of the use of force and annexation, aiming to determine whether modern IL allowed such practices. First, before the creation of the League of Nations (hereafter “LN”) in 1919, the absence of international organizations and judicial agencies made the views of IL scholars important sources of IL. In addition, IL governed European countries at the time, so it focused on the state practices and discussions of those countries. Second, after the establishment of the LN, member states intensively analyzed provisions related to the aggression in the Covenant of the LN and discussed applicable cases. Unlike current IL, which simply applies to all countries in the international community, members of the LN were able to participate in the law-making process at the time.
This study found that before the LN, there was general consensus that use of force that led to invasions of other countries' territories should be banned. During the 19th century, the practice of requiring nations to give just cause for starting wars was maintained, and IL scholars agreed that armed intervention should be prohibited. This is because national sovereignty began to be emphasized in the 18th and 19th centuries when only European countries were subject to IL, and they had no choice but to respect each other's sovereignty. Also, whether a state was allowed to invade another one affected the issue of annexation related to territorial acquisition. When war broke out during this period, the first step was aggression, followed by occupation and conquest, and culminating with the victorious states annexing the territories or colonies of the defeated nations through the conclusion of peace treaties.
Meanwhile, this study found that treaties in the 20th century did not support annexation of invaded, occupied, or conquered territories by European countries. This non-annexation consensus resulted in the creation of a mandate system after World War I. After aggression, occupation, and conquest, the victorious nations decided to assign the territories to mandatories designated by the Paris Peace Conference, instead of annexing the defeated countries’ territories or colonies through peace treaties. Articles 10–16 in the Covenant of the LN established controls for aggression. The problem was that because these articles did not explicitly stipulate an “aggression prohibition,” they gave rise to controversy regarding whether to ban aggression. However, the fact that the LN regarded aggression as an international crime suggests that aggression for annexation was also illegal. This is evident in the case of annexation caused by the aggression of the LN Members. Japan invaded China intending to annex Manchuria and founded Manchukuo. However, the LN criticized the creation of Manchukuo and likewise condemned Italy's aggression toward and annexation of Ethiopia. It issued sanctions against Italy for this aggression, but these measures proved unsuccessful; ultimately, Japan and Italy left the LN and, along with Germany, started the Second World War.
Before the LN, European countries and IL scholars agreed that the use of force against another country's territory should be prohibited. Subsequently, the members of the LN, who had mainly participated in developing IL, recognized that aggression and aggression-based annexation should be prohibited. In conclusion, this research found that pre-1945 rules and discussions sought to prevent aggression and aggression-based annexation.

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