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Since 2008, controversies have continued to arise over exactly when the Republic of Korea was founded, including the most recent one sparked because of the state-issued history textbook. Lying underneath such controversies is a complex combination of diverse legal and historical interpretations about whether the Korea-Japan Annexation Treaty of 1910 can be regarded as the dissolution of the Empire of Korea, whether the Korean Provisional Government formed in 1919 was formally recognized, and what the establishment of the Republic of Korea’s government in 1948 means. In order to discover the “creation of state in international law” in the case of Korea, this article considers the theory and practice of general international law on “recognition of state” and “recognition of government,” and attempts to determine the international legal meaning of the Republic of Korea’s foundation. The term “legal legitimacy” in this article refers to "identity of state," and “legitimacy” refers to "legitimacy of government" in this article.

Recognition of State and Government for the Republic of Korea

Recognition in international law can be categorized into recognition of state, recognition of government, recognition of belligerency, and recognition of insurgency. Recognition of state refers to existing states recognizing a new state as an entity with rights and duties according to international law. Recognition of government refers to recognizing the legal or illegal change of a recognized state’s government. The first time recognition of state was mentioned in history was in the late eighteenth century when France recognized America as a state independent from Britain. It continued to be discussed in the early nineteenth century when America and Britain recognized Latin and South American states as independent from Spain. Such precedents allowed the recognition of state to morph into an international convention of sorts although there is no uniform law pertaining to it in international society.

The criteria for statehood includes (i) a permanent population, (ii) a defined territory, (iii) a government that exercises effective control over the population and territory, and (iv) the intent and capacity to abide by international law. Recognizing an entity that does not satisfy this criteria as a state is considered a premature recognition, which is against international law. There are two theories on recognizing statehood involving the constitutive and declaratory effect, but neither is self-sufficient. Recognition of state is more of a political act than a legal judgement in reality, so the two theories are selectively adopted. For instance, the constitutive theory is adopted in cases where a state is created from separation and independence achieved through armed struggle, whereas the declaratory theory is adopted in cases of consensual separation and independence, division or merger. Meanwhile, when a state replaces its capitalist regime with a socialist regime, such replacement is referred to as "creating a new state." The matter of recognizing a newly socialized state is one that falls under recognition of state, not recognition of government.

Should the collective recognition of an international organization be simply regarded as an aggregation of individual recognitions, joining the United Nations is merely collective recognition by member states that approved of a recognition. The state practice of commencing bilateral diplomatic relations is a mutual act based on consent from both states, which separately requires individual states to recognize one another as a state. This is why although the two Koreas were each recognized as a state by the United Nations when they simultaneously joined the organization in 1991, inter-Korean relations is not between two states, but between a state and a belligerent community according to general international law. (Kim Myung-ki)

Korean Provisional Government's International Legal Status and Legitimacy

From its establishment in 1919 up to Korea's liberation in 1945, the Korean Provisional Government represented the Republic of Korea, engaged in armed resistance against Japan, and secured its effectiveness by being recognized both as a government in exile and a legitimate government that inherited the Empire of Korea's legal legitimacy. More than anything, it continued to function overseas as the legitimate government of Korea for 27 years due to Japan's illegal occupation of Korea and received recognition of government by some states. The Korean Provisional Government also obtained the status of a government in exile allowed to independently use armed force. It was unique for being established in exile as the Empire of Korea became annexed by Japan, but only from a theoretical standpoint. Only a state that recognizes a government in exile, or the state where a government in exile is based is capable of exercising its sovereignty to evaluate the prerequisites for or claim new rights on recognizing a government-in-exile's status according to international law and all that the status entails.

Considering the fact that the Republic of Korea's government reconfirmed in 1987 the effectiveness of the three multilateral treaties succeeded after their conclusion by the Empire of Korea implicitly recognizes the illegality and invalidity of the Korea-Japan Annexation Treaty that mainly caused the Empire of Korea's dissolution. The Hague Convention on Hospital Ships, the Convention with respect to the Laws and Customs of War on Land, and the Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864 were all signed by the Empire of Korea and remains in force for the Republic of Korea, not North Korea. Because according to a principle prescribed by international law, changing the name or form of a state or government alone cannot in any way affect identity and continuity of state. This means identity of state has been maintained for the Republic of Korea since the establishment of its government was based on change in the name or form of a state or government, not on the Empire of Korea's dissolution. Multilateral treaties signed by the Empire of Korea therefore remains in force for the Republic of Korea unless it withdraws from them due to a fundamental change of circumstances. The operation of such treaties was only suspended while the Empire of Korea's capacity to act in international society had been practically restrained (August 29, 1910 - August 15, 1948) and the effectiveness of those treaties was obviously restored once the Republic of Korea's government regained its capacity to act.

Views of Korean Scholars of History and International Law

The following offers an outline of the views and positions Korean scholars of history and international law have on the legal legitimacy of the Republic of Korea's government with regard to the so-called "national foundation day controversy." Arguments on the origin of the Republic of Korea now being discussed among Korean historians involve the "origin of the Empire of Korea" (Yi Tae-jin), the "(origin of the) Shanghai Provisional Government's foundation" (Han Si-jun, Han Hong-gu), the "1948 foundation of the Republic of Korea" (Lee Young-hoon, Yang Seung-tae), and the "deconstruction of national history and its origin in the history of civilization" (Lim Jie-hyun). These arguments can largely be grouped into two in terms of the so-called national foundation day controversy, those that advocate the Korean Provisional Government's 1919 establishment and those that advocate the 1948 establishment of the Republic of Korea.

The grounds are as follows for supporting the Korean Provisional Government's 1919 establishment of state. "Ignoring the provisional government and newly founding a state sounds concerning because it renders foreign powers instead of our own capability as responsible for the foundation." "The state identity today's New Right or ruling forces is crying out for is... but the identity from the 1949 national security law." (Han Hong-gu) "Facts should not be overturned or distorted based on their political advantages and disadvantages. Citing international law or whether the state had been recognized by other powers in order to argue that the Republic of Korea was not founded in 1919 is but to view the matter through the eyes of an imperialist state that seized colonies. It is wrong to simply judge colonial history, which most of the world experienced, from the perspective of an aggressive imperialist state." (Kim Hee-gon) "The argument for the 1948 foundation of state suggests that the Republic of Korea's identity lies in an anti-communist, anti-North Korea, free market economy. ... This leads to the argument of colonial modernity, which glorifies the crime of aggression Japanese imperialism committed against Korea. ... Those against the 1948 foundation of state are wary about the fact that the argument is tied to the New Right view of history and state." (Jeong Young-hun)

As an advocate of the 1948 establishment of the Republic of Korea, Professor Lee Young-hoon said, "Liberation was not achieved on our own, but because Japan clashed with and was undermined by the United States while attempting to bite more than it can chew to expand its empire. And even upon becoming liberated, we were not prepared to found a modern state." He also mentioned that "Acknowledging the Shanghai Provisional Government as the origin of the Republic of Korea signifies its detachment from the Empire of Korea." Professor Yang Seung-tae considers August 15, 1948 as national foundation day and argues that "defining the provisional government's establishment as the foundation of our state makes the period between 1910 and 1919 a time of separation and nullity, which deprives us of grounds to hold Japan accountable for all the immoral and criminal acts it committed during its colonial rule."

Then, there is the general view held by Korean scholars of international law. The United Nations general assembly held on December 12, 1948 passed the following resolution that recognized the government of the Republic of Korea as the only legitimate government on the Korean peninsula. "The General Assembly declares that there has been established a lawful government (the Government of the Republic of Korea) having effective control and jurisdiction over that part of Korea where the Temporary Commission was able to observe and consult and in which the great majority of the people of all Korea reside; that this Government is based on elections which were a valid expression of the free will of the electorate of that part of Korea and which were observed by the Temporary Commission; and that this is the only such Government in Korea."

Whether a global international organization like the United Nations can be considered a main agent capable of recognition of state or government depends on precedent, theory, and the practice of the United Nations. What matters is whether a general assembly resolution that has no binding force on United Nations member states can be considered recognition of state or recognition of government. The general assembly resolution passed on November 14, 1947 that established the United Nations Temporary Commission on Korea (UNTCOK) refers to the establishment of a new government. The aforementioned 1948 resolution also deals with the recognition of a legitimate government, which is recognition of government, not of state. The resolution therefore verifies that the Republic of Korea's government inherited old Korea's legal legitimacy, which in turn is a passive admission of the North Korean regime's illegitimacy. North and South Korea have never recognized one another as a state, so there is only the implicit, pragmatic recognition between a state and a belligerent community according to international law.

In the 1965 Treaty on Basic Relations between Korea and Japan, article 2 confirms that "all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void." Article 3 of the treaty stipulates that "it is confirmed that the Government of the Republic of Korea is the only lawful Government in Korea as specified in the Resolution 195 (III) of the United Nations General Assembly." These articles acknowledge that the so-called Korea-Japan Annexation Treaty of 1910 is basically void and reconfirm the United Nations general assembly resolutions. In short, there seems to be no Korean scholars of international law arguing that a state was founded in 1948 according to international law.

Legal Legitimacy as a Prerequisite for a Unified Korea

From a legal standpoint, there are many regrettable aspects to the controversy in Korea surrounding a state-issued history textbook. Korea's first constitution of 1948 clearly mentions "establishing the Republic of Korea through the March First Independence Movement of 1919, and hereby reestablishing a democratic independent country by upholding that great independent spirit declared to the world." The current constitution amended in 1987 also specifies that the Republic of Korea "upholds the cause of the Provisional Government." The idea of establishing a day to commemorate the Korean state's foundation was inspired by Independence Day in the United States, which carries a completely different notion, and what the idea embodies certainly cannot be communicated through expressions such as "Regain Independence Day," "Day of Creation of State," or "National Foundation Day."

"Korea" is a country name that has been used since the Empire of Korea was founded in 1897. Defining the Republic of Korea as a newly independent state instead of an existing state by denying the international legal status and legitimacy of the Korean Provisional Government does not coincide with the current Korean constitutional article on national territory nor with the Korean nationality act (Kim Chang-rok). The treaties of friendship, navigation, and commerce (FNC) either the Joseon dynasty or the Korean Empire concluded with nine different Eastern and Western nations remained in effect even after Korea became a protectorate of Japan and continues to remain in force for the Republic of Korea.

In conclusion, the 1919 establishment of the Korean Provisional Government is a matter of acknowledging the legitimacy of a government in exile. Recognition of the Republic of Korea as a state has never been raised as an issue in the 1948 United Nations general assembly resolution on establishing the Republic of Korea's government, the 1965 Treaty on Basic Relations between Korea and Japan, or in the 1991 Inter-Korean Basic Agreement. The argument for "foundation of state" fails to take into account the foreign relations the Republic of Korea has internationally maintained and destroys not only the legal relations in civil matters that have been built so far between the two Koreas through judicial decisions (by applying quasi-private international law and conducting internal trade), but the justification and rationale for unification as well. The history of international law does not seek to harm peace or national interests.