뉴스레터

The beginning of the Treaty between Korea and Japan in the modern period

The treaty and the relationship between Korea and Japan's Rights and Duties under international law began on February 27, 1876, from 「the Korea-Japan Treaty of Amity」(official name of the Ganghwa Treaty). Article 1 of 「the Korea-Japan Treaty of Amity in 1876」 stipulates that 'Joseon is an independent country and has equal rights with Japan'. As a result, all the treaties and regulations signed between Korea and Japan have been governed by international law. Among the treaties signed during the Japanese invasion of Korea, the most important treaties under international law are 「the Korea-Japan Protocol」 on February 23, 1904, 「the Eulsa Treaty」 on November 17, 1905, and 「the Treaty of Japan's Annexation of Korea」 in 1910. Controversy continues under international law as to the interpretation of the 1965 Treaty on the Basic Relations between Korea and Japan.

Professor Baek Chung-hyun of Seoul National University, a scholar who studies international law on the effectiveness of the old treaty concluded between Korea and Japan, said, including 「Eulsa-neukyak」 in 1905 and 「the Treatment of Japan's Annexation of Korea」 in 1910. “The contents of the five treaties that Japan phased out of Korea's sovereignty are directly related to the state's sovereignty restrictions. Therefore, full powers for signing the treaty, and the requirements of the ratification process, should be met.” And he insisted on the logic that ratification is necessary to mark the nation's consent to be bound by a treaty(Article 2 ① (c) of the Vienna Convention on the Law of Treatments」.

‘The Treaty of Japan's Annexation of Korea in 1910’ Based on ‘Eulsa-neukyak’

The relationship between 「the Korea-Japan Protocol」 in 1904, 「the Eulsa-neukyak」 in 1905, and 「the Treaty of Japan's Annexation of Korea」 in 1910 are as follows. Article 5 of 「the Korea-Japan Protocol」 in 1904 stipulates that the Korean Empire and the Japanese Empire will not enter into an agreement with a third country without mutual approval. Then, in 1905, Article 2 of the 「Eulsa-neukyak」 stipulated that "the Korean government(not the Korean Empire) promises each other not to make international treaties or promises without passing through the intermediary of the Japanese government." So Japan invaded the diplomatic rights of the Korean Empire, including the signing of the treaty. In 1907, despite the efforts of Emperor Gojong of the Korean Empire to invalidate the treaty, including dispatching a secret emissary to 'the second Hague Peace Conferences', Japan robbed all internal and external sovereignty of the Korean Empire by signing the 「the Treaty of Japan's Annexation of Korea」 in 1910.

The Japanese trick under the a good name of Western international law has already been revealed in the paper 『International Situation of the Korean Empire』 (1906) in the 「International Public Law Review」 by Francis Ley, a professor of law at the University of Paris, France. He asserted that ‘protection and independence are incompatible’ in the situation that was forced by the treaty. 「the Eulsa-neukyak」 in 1905 also has a fatal defect that is in conflict with 「the Korea-Japan Protocol」 in 1904.

In short, this was an illegal annexation of the Korean Empire by signing a treaty with Japan itself, a protectorate at the time. In an adjective law, the rules that the head of government is recognized as representing the state without full powers have been formed as a customary international law since 1938.

the requirement for effect and the requirement for establishment of the treaty

In 1969, 「Vienna Convention on the Law of Treaties」 did not establish the requirement for effect of the treaty. However, the 'requirement for effect' and 'requirement for stabilization' of the treaty are clearly distinguished. The legal effect that does not have the former requirement is 'not concluded the treaty' (nonexistent of the treaty), and the legal effect that does not have the latter requirement is 'nullification of the treaty'. The treaty signed by a representative who is not authorized through full powers, and the treaty not ratified by a person who has the ability to conclude a treaty under international law, is not legally effective because it does not have the requirement for establishment of the treaty. In the end, the claim that 「the Treaty of Japan's Annexation of Korea(1910」 is also valid, based on the validity of 「Eulsa-neukyak(1905)」, is a house built on the sand.

On July 31, 2010, ‘the joint declaration of the Korean-Japanese intellectuals’ is close to the official position of the current government. The declaration stipulated: “As the Japanese Empire was defeated after the war of aggression, Korea escaped from the harsh Japanese colonial ship in 1945. Article 2 of 「the Treaty on Basic Relations between the Republic of Korea and Japan」 concluded between the two countries stipulates that "all treaties and agreements concluded on August 22, 1910 and before that are already null and void." However, the interpretations of the two governments were different. The Japanese government interpreted that 「1910 Annexation Treaty」 was valid because both sides maintained an equal position and were formed according to free will, but it was invalid due to the establishment of the Republic of Korea in 1948. On the other hand, the Korean government interpreted that the unfair and unjust treaty that was made as a result of the aggressive policy of Japan was illegal and invalid from the beginning.

Now is the time to clarify the national manifestation of opinion

In 1910, 「the Treaty of Japan's Annexation of Korea」, unlike the international convention of ratification of the emperor, 

the name of the 2nd emperor of the Korean Empire, ‘Cheok’, is signed as a fake. 

And there's a Guk-sae(royal seal) stamp, not Eo-sae(great seal). 

New interpretations are needed regarding the effectiveness of the old treaties. Article 2 (a) of 「the Treaty of Peace with Japan」(Treaty of San Francisco) stipulates that ‘Japan recognizing the independence of Korea, renounces all right’ in 1952. Article 21 of the same treaty stipulates that ‘Korea to the Benefits of Articles 2’, but no provision in the same treaty does not prescribe 「the Treaty of Japan's Annexation of Korea in 1910」 as invalid. Also, the term ‘recognizing the independence of Korea’ means that Korea was not independent before this approval and that 「the Treaty of Japan's Annexation of Korea in 1910」 was valid.

Article 36 (1) of 「the Convention on Vienna Convention on the Law of Treaties」 shall be as follows. 'A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.' Korea has never expressed its intention to agree on 「the Treaty of Peace with Japan」. Therefore, it can be presumed that Korea has implicitly approved 「the Treaty of Japan's Annexation of Korea in 1910」 by the treatment of Peace with Japan Article 2 (a). Therefore, in order to exclude this legal effect, the following act is necessary. In any provision of the same treaty, an ‘interpretive declaration or interpretive reservation’ is required to say that 「the Treaty of Japan's Annexation of Korea in 1910」 is not interpreted as valid, or a national declaration is required to deny the provision of rights within the same treaty.