1910년 ‘한·일병합조약’의 국제법적 재조명 (A Perspective on ‘the Treaty of Japan's Annexation of Korea in 1910’ in International Law)

서지정보

· 발행기관 : 한국외국어대학교 법학연구소
· 수록지 정보 : 외법논집 / 34권 / 1호 / 355 ~ 372페이지
· 저자명 : 도시환

초록

The year 2010 is marking the centennial of Japan's forced annexation of Korea. Japan has claimed that the Korea-Japan Annexation Treaty of 1910 was legally and morally valid. Or, it has made a far-fetched argument that the treaty was, at least, legal, even though it was seen as lacking in moral validity.
It is a task of historical importance as well as a call for justice to get a glimpse of the true nature of the ongoing conflict between Korea and Japan over the shameful modern history ahead of the 100th anniversary of the annexation treaty.
In the 21st century, the two countries need to work together to contribute to peace and prosperity in Northeast Asia through mutual understanding and cooperation. For this, they should first overcome the painful legacy of the 20th century and their dark history.
But the deep-rooted memories of aggression and the scars of plunder and exploitation still remain a barrier to a better future for co-existence and co-prosperity.
It goes without saying that Japan's coerced annexation of Korea is the root cause of the conflict over history. This conflict is the vestiges of Japan's imperialism and aggression that should be eliminated. The pending historical issue confronting the two countries stems from the annexation.
In judgment the effect of the Korea-Japan forcible annexation in 1910 as a historical event from the perspective of international law, we can divide it into the following three opinions based on reviews based on the relations between legality and legitimacy.
First, legality theory beors the position held by then Japan, which claims that the annexation was for the sake of Oriental peace without the pand legal problems, asserting the treaty was made under a due process based on free will and equalon heSecond, the vsiti but un but theory rocesview held by the majority of scholarocend polonicians in Japan todayheIt claims that the treaty of annexation was not prohibited by the then positive lawheLastly, Korean and conscientious Japanese scholarocessert the treaty failed to have legal requirementscondit was made in forcible means without permit from then emperor.
According to this, legality and legitimacy should not be separated in the assessment of Japan's annexation of Korea. Legitimacy is a basic prerequisite and a common value that should be met to fulfill the legality and therefore must be considered together when assessing an international act or event from the legal point of view. Nevertheless, what matters is that majority of Japanese relevant figures see this as separable.
First, Article 2 of the Treaty on the Basic Relations between Korea and Japan stipulates that “All treaties and agreements made between the Empire of Korea and the Empire of Japan are confirmed as null and void already.” With regard to the ‘void’ period, the government of Japan claims that old treaties and agreements were made in both legality and validity until the 15th of August in 1948. However, the article can be reasonably understood as to mean and confirm that the past annexation was retroactively invalid, because ‘void’ was used instead of ‘voidable’ when selecting the legal terms.
Second, the treaty failed to fulfill the requirements for the validity of an international treaty according to the international law for the following reasons: Japanese demonstration of its military power and threatening up to the point of annexation of Korea, coerced conclusion of a treaty, omission of Korean emperor’s signature and seal on the original treaty document and non-existence of the ratification of the treaty.
Third, an absolutely invalid treaty in its essence can not be changed in the status of its validity by the approval of a third party country. Therefore, approval of the annexation by a third party country can not create any legal effect at all.
Fourth, with regard to the ‘Intertemporales Recht’ which is claimed by Japan as a reference for legal judgment, it was commonly said even at that time that a treaty without a commission of full powers or ratification was invalid when we analyzed the forms and procedures for concluding a treaty explained in well-known introductory books on international law in 1910 such as L. Oppenheim and Ariga Nagao.
Fifth, even though Japan claims legality of the treaties, colonization through annexation is an international crime against peace and humanity, infringing the rights to live peacefully, from the viewpoint of ‘lex ferenda.’Now we are seeking to establish the right history and promote historical reconciliation as the centennial of Japan's forced annexation and colonization of Korea approaches. Japan's colonial rule in Korea was illegal because it was made possible due to the invalid annexation treaty.
As such, the conscription of young Koreans was illegal. Besides, the mobilization of comfort women was the violation of jus cogens, as a peremptory norm of general international law.
Japan should recognize that its denial of disgraced history is tantamount to a negation of justice and a refusal of peace. The Tokyo government ought to resolve the history conflict by respecting the universal values of justice and conscience. Only after that can Japan truly become a peace-loving member of the international community.

영어초록

The year 2010 is marking the centennial of Japan's forced annexation of Korea. Japan has claimed that the Korea-Japan Annexation Treaty of 1910 was legally and morally valid. Or, it has made a far-fetched argument that the treaty was, at least, legal, even though it was seen as lacking in moral validity.
It is a task of historical importance as well as a call for justice to get a glimpse of the true nature of the ongoing conflict between Korea and Japan over the shameful modern history ahead of the 100th anniversary of the annexation treaty.
In the 21st century, the two countries need to work together to contribute to peace and prosperity in Northeast Asia through mutual understanding and cooperation. For this, they should first overcome the painful legacy of the 20th century and their dark history.
But the deep-rooted memories of aggression and the scars of plunder and exploitation still remain a barrier to a better future for co-existence and co-prosperity.
It goes without saying that Japan's coerced annexation of Korea is the root cause of the conflict over history. This conflict is the vestiges of Japan's imperialism and aggression that should be eliminated. The pending historical issue confronting the two countries stems from the annexation.
In judgment the effect of the Korea-Japan forcible annexation in 1910 as a historical event from the perspective of international law, we can divide it into the following three opinions based on reviews based on the relations between legality and legitimacy.
First, legality theory beors the position held by then Japan, which claims that the annexation was for the sake of Oriental peace without the pand legal problems, asserting the treaty was made under a due process based on free will and equalon heSecond, the vsiti but un but theory rocesview held by the majority of scholarocend polonicians in Japan todayheIt claims that the treaty of annexation was not prohibited by the then positive lawheLastly, Korean and conscientious Japanese scholarocessert the treaty failed to have legal requirementscondit was made in forcible means without permit from then emperor.
According to this, legality and legitimacy should not be separated in the assessment of Japan's annexation of Korea. Legitimacy is a basic prerequisite and a common value that should be met to fulfill the legality and therefore must be considered together when assessing an international act or event from the legal point of view. Nevertheless, what matters is that majority of Japanese relevant figures see this as separable.
First, Article 2 of the Treaty on the Basic Relations between Korea and Japan stipulates that “All treaties and agreements made between the Empire of Korea and the Empire of Japan are confirmed as null and void already.” With regard to the ‘void’ period, the government of Japan claims that old treaties and agreements were made in both legality and validity until the 15th of August in 1948. However, the article can be reasonably understood as to mean and confirm that the past annexation was retroactively invalid, because ‘void’ was used instead of ‘voidable’ when selecting the legal terms.
Second, the treaty failed to fulfill the requirements for the validity of an international treaty according to the international law for the following reasons: Japanese demonstration of its military power and threatening up to the point of annexation of Korea, coerced conclusion of a treaty, omission of Korean emperor’s signature and seal on the original treaty document and non-existence of the ratification of the treaty.
Third, an absolutely invalid treaty in its essence can not be changed in the status of its validity by the approval of a third party country. Therefore, approval of the annexation by a third party country can not create any legal effect at all.
Fourth, with regard to the ‘Intertemporales Recht’ which is claimed by Japan as a reference for legal judgment, it was commonly said even at that time that a treaty without a commission of full powers or ratification was invalid when we analyzed the forms and procedures for concluding a treaty explained in well-known introductory books on international law in 1910 such as L. Oppenheim and Ariga Nagao.
Fifth, even though Japan claims legality of the treaties, colonization through annexation is an international crime against peace and humanity, infringing the rights to live peacefully, from the viewpoint of ‘lex ferenda.’Now we are seeking to establish the right history and promote historical reconciliation as the centennial of Japan's forced annexation and colonization of Korea approaches. Japan's colonial rule in Korea was illegal because it was made possible due to the invalid annexation treaty.
As such, the conscription of young Koreans was illegal. Besides, the mobilization of comfort women was the violation of jus cogens, as a peremptory norm of general international law.
Japan should recognize that its denial of disgraced history is tantamount to a negation of justice and a refusal of peace. The Tokyo government ought to resolve the history conflict by respecting the universal values of justice and conscience. Only after that can Japan truly become a peace-loving member of the international community.

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