동북아역사재단 2023년 02월호 뉴스레터
- Lee Seok-woo, professor at Inha Law School, Inha University
Japan–Korea Treaty in relation to the interests of imperialist states
The second Japan–Korea Treaty (also known as the Eulsa Treaty) in relation to the deprivation of diplomatic sovereignty of Korea led to Korea losing power of representation. Consequently, despite the fact that the Korean Empire was a sovereign state, Japan exercised the power to open or close the existing treaties of Korea. Other Western powers also made similar treaties in similar periods with Joseon. However, instead of fulfilling the treaties until the end, they approved, yielded, and compromised with mutual interests, allowing Japan to take control of Korea.
The formats of the treaties were documents created upon agreement, but the actual content dealt with physical conquest. It was not unusual for an imperialist country to cooperate with interested parties to secure its own interests when establishing new colonies elsewhere. The Western powers, China, and Japan pressured Joseon through a series of treaties. Joseon (or the Korean Empire) was restricted from exercising sovereignty over its internal affairs, diplomacy, and customs until it lost its authority after being forced to enter into the Japan–Korea Annexation Treaty in 1910. The terms “semi-sovereignty and vassal state” were used to explain the situation of Joseon keeping hold of its sovereignty but having limitations on exercising sovereign rights.
Imperialist state determines the mode of territorial acquisition
During the time of Russian imperialism when it grew national powers and expanded territories, imperialist Western powers claimed preoccupancy, cession, and conquest as the modes of international law applicable to territory issues. How an imperialist state will expand territories was fully up to the situation of the relevant state. However, the circumstances of a territory that imperialist states desired to take over or colonize greatly influenced their situational decision and functioned as a critical variable. In the end, we can say that the situations of the imperialist state and the territory targeted for colonization determine the mode of territorial acquisition.
The Spanish Empire conquered Latin America by force. Britain ignored the residency of prominent tribes in North America and occupied the land based on the concept of terra nullius (a Latin expression meaning “nobody’s land”), and later ceded North American countries through treaties. India conquered emirates through both wars and treaty-based cession. Africa back then had political communities of ethnic groups and tribes, rather than nations. Such circumstances raised disputes on the appropriateness of parties for treaties according to international law. European imperialism made treaties with tribe leaders of such political communities whose qualifications were skeptical to expand territories. These cases show that international law of the time was applied by combining the situation of imperialist states and territories targeted for colonization. The following reasons were primarily used to obtain cession through treaties.
First, the necessity of continuous utilization of systems of colonies above a certain level.
Second, the necessity of preemptive response by relevant imperialist states to overlapping multinational interests in the relevant territory.
Third, the necessity to secure the interests of colonial territories of imperialist states played a role.
To put it another way, the circumstances of imperialist states and territories of targeted colonies, as well as mutual interests—when there are multiple interested parties—functioned as a third variable that determined the mode of territorial acquisition of the relevant imperialist state.
The essence of the classification of overseas territories of imperialist states
The sovereignty of a country and the extent of restriction of sovereign rights vary according to regions and period. For two centuries before World War I, Western nations pursued to expand colonies by indiscriminately colonizing most territories of Asia, Africa, and South America. Spain, Portugal, the Netherlands, Britain, Belgium, France, Italy, Japan, and the U.S. strove to realize national benefit by expanding colonies beyond borders for a significant period of time. The colonial expansion by Western powers later gave rise to a critical issue in terms of territorial disputes under modern international law after World War I and II. That is, the majority of post-war reconstruction projects headed by victorious countries brought up the question of how to deal with former colonies of defeated countries. This issue of disposition was the core of reconstruction projects.
The reason it is taking so long in international law to legally clarify the concept of “colony” is because there are insufficient common factors. Dependency on European powers was frequently observed in problematic territories; the existence of variations of foreign domination, however, made it difficult to establish a single concept of justice in relation to legal status. The broad “colonial” territory obtained also expanded the scope of legal position as defined by colonial powers. Each “conqueror” exquisitely put in place certain colonial laws. The term “colony” itself had various significance according to the regulations of different countries.
Reconciliation, disposition, and administrative management of former colonies of defeated countries became complicated by the fact that a significant number of empires, including allies and the Axis powers, did not, in fact, maintain stable relationships with such colonies. For instance, Britain controlled its colonies according to different relational theories that applied the overall law system, including colonial law and sovereign dominion laws, in all colonies of the world in a different manner. Therefore, the way that Britain treated its overseas territories varied depending on their status as a dependent state, colony, settlement, vassal state, protectorate, or sovereign dominion. Early 20th-century British Empire law distinguished overseas regions in over 40 categories, and three departments—colonial affairs, India, and foreign affairs—were in charge of their administration. Almost all colonial states were ruled under this nature. Spain, Portugal, the Netherlands, Belgium, France, Italy, Japan, and the U.S. used their own concepts and particular terms that they have adopted to classify colonies. Because of the significant chaos this fact caused, universal concepts were useless in territories that were dominated by colonial states. The classification of certain territories mostly did not fit the actual situation, adding more issues. As a result, some began to raise issues on the significance of territory classifications for overseas colonies of colonial states. In the end, the issue of colony classification became evident after the first and second World Wars. The classification sometimes caused disputes on sovereignty over certain regions by powerful states.
Directions for comparative colonial studies
Then, what significance does it have to separate colonial management by empires by generation, understand the legal characteristics of relevant regions, and apply what corresponds with the colonization process of Joseon? What is the basis for comparing the style of colonial rule of a certain imperialist country in a certain area and for a certain period of time to the relationship between Japan and Joseon (or the Korean Empire)?
In relation to the direction of comparative colonial studies, it is favorable to categorize legal characteristics of colonies as simply as possible. In other words, we can use some common categorization criteria for overseas territories of colonial countries that are categorized in extremely various standards. That is, the most critical criterion for how these various categorizations are made is the extent to which colonial states have used their power (sovereignty and sovereign rights) over colonial territories. Some important sovereign rights according to this criterion include rights to customs, diplomacy, taxation, and police. The archetype of a colony is the expansion of the colonial rule through the typical stages of most-favored-nation treatment, efficient trade monopoly, securing of taxation rights and diplomatic rights, military domination, comprehensive legal regulations, and stable securing of a bureaucratic administration. This is directly related to the degree of discretion colonial states allowed over their territories when exercising sovereign rights. To clearly identify the fundamental characteristics of colonial rule, it necessitates more research in the following areas.
First, the degree, process, and result of resistance and struggles in the process of colonization.
Second, the degree, process, and result of independence movements after colonization and the progress that led to independence.
Third, status of local laws that have been enacted or amended after making treaties with imperialist countries and how they are operated.
While previous research focused on how imperialist countries expanded colonial territories, further studies must examine how colonial territories fought against imperialist powers. There must be actual achievements through this kind of research in order to find answers to the reality and implications of the essentiality related to the territorial expansion of imperialist countries under international law from a Korean point of view. Any researcher can point out problems of the modern application of “imperialism under international law” that is conceptually incomplete, but conceptualizing the identified issues, substantiating the concepts, and applying the substance still remain as important tasks.
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