1910년 한․일강제 병탄조약의 불법성, 무효성의 고찰 (A Study on the Invalidity & Illegality of "the Treaty of Japan's Annexation of Korea in 1910")

서지정보

· 발행기관 : 한국외국어대학교 법학연구소
· 수록지 정보 : 외법논집 / 34권 / 4호 / 17 ~ 37페이지
· 저자명 : 이장희

초록

This article examines the invalidity and illegality of "the Treaty of Japan's Annexation of Korea in 1910" from the perspective of international treaty theories. The above 1910 treaty failed to fulfill the requirements for the validity of international treaties. The reason are as follows: coerced conclusion of the treaty under the demonstration of Japanese military power, threats up to the point of annexation, ommission of the Korean emperor's signature and seal on the original treaty document and non-existence of the ratification of the treaty.
However, controversies on the legal status and interpretation of the treaty still exist between Korea and Japan. There are two legal issues in this regard. One is about the validity of the 1910 treaty itself and the other is concerning the agreement of 1965 between Korea and Japan on the validity of the 1910 Treaty. The former involves whether the 1910 Treaty is effective or not based on historical facts and law and the latter deals with the agreement that was made between the two countries on the Treaty's validity.
In case of the former issue, scholarly opinions are divided depending on the application of intertemporal law. The customary international law at that time stipulated, "A treaty concluded with one contracting nation forcing its counterpart is effective, but a treaty concluded with one contracting nation forcing the leader of its counterpart is ineffective." However, it would be actually impossible to distinguish the treaty forcing its counterpart nation from the one forcing its leader. Furthermore, the support for the theory distinguishing the coercion of the state and coercion of a representative gradually weakened during the inter-war period (1918-1939). When it comes to the 1910 treaty, opinions on both sides are mixed. Therefore, the 1910 treaty is ineffective.
For the latter issue, the key matter is the starting point of the nullity of the 1910 treaty according to the agreement in 1965 between Korea and Japan. With regard to the effectiveness of the 1910 Treaty, Korea and Japan agreed in the Article 2 of the "1965 treaty on Basic relations between Korea and Japan that "it is confirmed that all treaties or agreements concluded between the Empire of Korea and the Empire of Japan on or before August 22, 1910 are already null and void."Yet there are two conflicting interpretations on this article. The Korean government asserts as follows: "in principle, the expression 'null and void' in itself means ineffective 'from the bottom up' unless otherwise provided, and the term 'already' stresses the phrase 'null and void.'" The foundation for this interpretation is that the treaty is "the result of the Japanese invasion in the past." On the other hand, Japanese Government has other interpretation on this article as follows: " 'Already null and void' is no more than a description of the fact that it had already become void by the present time. ... and The Annexation Treaty lost effect on August 15, 1948 when Korea became independent."In conclusion, regarding the invalidity of the 1910 Treaty according to the agreement of the Article 2 in the 1965 Basic Treaty, 1) the 1910 Treaty was null and void from the very beginning, 2) therefore, the Japanese colonial rule for 35 years was illegal.
Meanwhile, there has been a noticeable change in Japanese government's interpretation of the 1965 Basic Treaty since 1995. In the statement made by Prime Minister Murayama on the occasion of the 50th anniversary of the war’s end, the Japanese government expressed its "feelings of deep remorse" and stated its 'heartfelt apology" with regard to the 'irrefutable fact of history," that Japan, "through its colonial rule and aggression, caused tremendous damage and suffering to the people of many countries, particularly to those of the Asian nations."Nevertheless, there has been no fundamental change in the stance of Japan on the treaty. Japanese Government should remember the World Conference against Racism 2001 held in Durban, South Africa, which dealt with the legal obligation for colonial rule as an important agenda.

영어초록

This article examines the invalidity and illegality of "the Treaty of Japan's Annexation of Korea in 1910" from the perspective of international treaty theories. The above 1910 treaty failed to fulfill the requirements for the validity of international treaties. The reason are as follows: coerced conclusion of the treaty under the demonstration of Japanese military power, threats up to the point of annexation, ommission of the Korean emperor's signature and seal on the original treaty document and non-existence of the ratification of the treaty.
However, controversies on the legal status and interpretation of the treaty still exist between Korea and Japan. There are two legal issues in this regard. One is about the validity of the 1910 treaty itself and the other is concerning the agreement of 1965 between Korea and Japan on the validity of the 1910 Treaty. The former involves whether the 1910 Treaty is effective or not based on historical facts and law and the latter deals with the agreement that was made between the two countries on the Treaty's validity.
In case of the former issue, scholarly opinions are divided depending on the application of intertemporal law. The customary international law at that time stipulated, "A treaty concluded with one contracting nation forcing its counterpart is effective, but a treaty concluded with one contracting nation forcing the leader of its counterpart is ineffective." However, it would be actually impossible to distinguish the treaty forcing its counterpart nation from the one forcing its leader. Furthermore, the support for the theory distinguishing the coercion of the state and coercion of a representative gradually weakened during the inter-war period (1918-1939). When it comes to the 1910 treaty, opinions on both sides are mixed. Therefore, the 1910 treaty is ineffective.
For the latter issue, the key matter is the starting point of the nullity of the 1910 treaty according to the agreement in 1965 between Korea and Japan. With regard to the effectiveness of the 1910 Treaty, Korea and Japan agreed in the Article 2 of the "1965 treaty on Basic relations between Korea and Japan that "it is confirmed that all treaties or agreements concluded between the Empire of Korea and the Empire of Japan on or before August 22, 1910 are already null and void."Yet there are two conflicting interpretations on this article. The Korean government asserts as follows: "in principle, the expression 'null and void' in itself means ineffective 'from the bottom up' unless otherwise provided, and the term 'already' stresses the phrase 'null and void.'" The foundation for this interpretation is that the treaty is "the result of the Japanese invasion in the past." On the other hand, Japanese Government has other interpretation on this article as follows: " 'Already null and void' is no more than a description of the fact that it had already become void by the present time. ... and The Annexation Treaty lost effect on August 15, 1948 when Korea became independent."In conclusion, regarding the invalidity of the 1910 Treaty according to the agreement of the Article 2 in the 1965 Basic Treaty, 1) the 1910 Treaty was null and void from the very beginning, 2) therefore, the Japanese colonial rule for 35 years was illegal.
Meanwhile, there has been a noticeable change in Japanese government's interpretation of the 1965 Basic Treaty since 1995. In the statement made by Prime Minister Murayama on the occasion of the 50th anniversary of the war’s end, the Japanese government expressed its "feelings of deep remorse" and stated its 'heartfelt apology" with regard to the 'irrefutable fact of history," that Japan, "through its colonial rule and aggression, caused tremendous damage and suffering to the people of many countries, particularly to those of the Asian nations."Nevertheless, there has been no fundamental change in the stance of Japan on the treaty. Japanese Government should remember the World Conference against Racism 2001 held in Durban, South Africa, which dealt with the legal obligation for colonial rule as an important agenda.

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