뉴스레터

Question:

Year 2010 is the 100th anniversary of the annexation of Korea by Japan. Japan argues unreasonably that there was no problem on both legal and ethical grounds. On the contrary, our claim is that the treaty was not valid according to the international law. What is the basis of our claim?

Answer:

Three Interpretations about the Annexation of Korea

In assessing the validity of the historical '1910 annexation of Korea' in reference to the international law, opinions are divided into three different lines based on the legal principles of legality and justice, terms from the philosophy of law.

First, the legality theory was the Japanese position at the time of annexation. According to this, annexation was for the peace of Asia and there was no ethical or legal problem in it. It insists that the annexation treaty was made in the appropriate legal procedure based on freedom and equality of both countries. Second, the valid but unfair theory is a view held by the majority of scholars and politicians in Japan today. It claims that the treaty of annexation was not prohibited by the then positive law. Lastly, the illegality theory is the view adopted by scholars of Korea and honest scholars of Japan. According to this, the treaty of annexation itself did not meet the conclusion and validity requirements because the treaty was coerced with the military forces and the emperor of Korea did not approve the treaty.

According to this, legality and justice should not be separated in the assessment of Japanese annexation of Korea. Justice 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. It is a significant problem with Japan that the majority people view that these two can be separated.

The 1910 treaty for annexation of Korea was not valid.

Next, with regard to the validity of '1910 Treaty for Annexation of Korea', it has problems as follows from the point of the international law.

First, Article 2 of the Treaty on the Basic Relations between Korea and Japan provides that "All treaties and agreements made between the Empire of Korea and the Empire of Japan are confirmed as 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 totally 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 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, no matter how many times Japan claims the legality of the treaty, the annexation was a crime of colonization, an international crime against peace and humanity from the viewpoint of 'lex ferenda.'