식민지 및 보호령 제도에 관한 프랑스 국제법 학자들의 견해: 19세기 후반부터 20세기 초반을 중심으로

During the late 19th century, Europe implemented policies concerning colonies and protectorates. During the period between the late 19th century and the early 20th century, French international law scholars conducted a series of research to show this tendency. In general, international law scholars at that time assumed the existence of the colonial system. They focused on dealing with problems that arose from the system. However, they did not question the colonial and protectorate system itself. They worked on setting up the obligations and rights of the colonizing state and the colony and the protector state and the protectorate in order to avoid clashes among the great powers in Europe. Their work served as values to support their national policies. In addition, although these international law scholars made a distinction between complete annexation and the protectorate, they too examined the protectorate from the perspective of national policy and extended their analysis to support the French colonial system. In other words, international law scholars at the time evaluated the protectorate system positively because it differed from the colonial system. The protectorate system was viewed as a way for less civilized nations to become a part of international society as sovereign states in a peaceful manner. However, as already known, the state practice went in a different direction than this early expectation. Most of the European countries that adopted the protectorate system did not improve the social and economic conditions of the non-European/uncivilized nations, but they pursued the policy of colonialization by taking these nations as their colonies. Nevertheless, the view of international scholars from the late 19th century to the beginning of the 20th century began to slowly change. They moved their focus from studying the conclusion of treaties between two countries which was the focal point of the protectorate system. Instead, they more intensely analyzed the circumstances surrounding the conclusion of treaties. It is meaningful that they discussed the problems and effects of protectorate treaties based upon this analysis. They posited that the European powers devised the protectorate system to reduce the cost of building colonies and to expand their colonial ambition. If we look at the results of colonial and protectorate policies, we can find that the people in the protectorates were under the authority of the head of their tribe, but in reality, they were under the control of the protectorate state. Therefore, the protectorate policy gradually changed the status of the people in the protectorate whereby they became more subordinated to the authority of the protecting state producing a similar result of expanding colonial rule. In reality, the colonial and protectorate policy was a way to disguise occupation and annexation. Therefore, for the colonial powers, the establishment of protectorates was one of the main programs of their colonial efforts. This disguised process of annexation was sometimes a continuous and lasting intervention into the sovereignty of other countries based on military occupation. Judging from the results of the research mentioned above, international law supported national policies for colonialization, but gradually it evolved in such a way to include a normative evaluation of the fundamental nature of colonial occupation. However, their analysis never reached a point where they concluded that the colonial policies or the protectorate system was unacceptable under international law. This fact has important policy implications in understanding the controversy between Korea and Japan over Dokdo. Korea’s territorial rights over Dokdo are based on two arguments. First, historically, Dokdo was a part of Korean territory, and secondly, Japan’s seizure of Dokdo in 1905 was invalid because it was in violation of international law. Because international judicial institutions will consider evidence based on historical facts that both countries will submit to prove their grounds for their claims, the central issue will be whether Korea can prove that Dokdo was its rightful territory at the time of Japan’s seizure in 1905. In light of this, Korea should emphasize that the taking of Dokdo in 1905 was part of the Japanese colonialization process that started in 1904. Korea is a good example of the disguised process of creating protectorates mentioned above. Japan’s establishment of a protectorate in Korea, based on the terms approved by the Western colonial powers, was disguised as a consensual treaty between Japan and Korea. However, this act is considered a violation of international law. Therefore, if a critical legal evaluation of Japanese colonialization, which started at the beginning of the Russo-Japanese War, is conducted, then a meaningful interpretation can be given to the historical and legal issues of the early 20th century that are critical to the Dokdo issue.