大韓民國臨時政府의 國際法的 地位와 大韓民國의 國家的 同一性 (下)

[continued from the article with the same title (I)] The Provisional Government of the Republic of Korea, established in Shanghai on 1919, had made its diplomatic efforts with regard to Europe, Soviet Union, China and United States. In Europe, it tried to make the problem of Korean independence be adopted as an agenda for various international conferences without any successful results. From the former Soveit Union, it succeeded in receiving substantial financial support for the activities to acquire Korean independence. However, its diplomacy with the former Soviet Union was carried out by communist activists, and also was a secret one. As results, it was accompanied by many limitations. The Provisional Governments diplomatic relationship with China was the most intimate one. However, its every effort to receive governmental recognition from China ended in failure. The United States had shown the cold shoulder to the Provisional Government as it did not want to give damage on its relationship with Japan. Though, the Provisional Government succeed in arousing sympathetic public opinion and concern for the problem of the independence of Korea in the United State. The conclusion concerning the international legal status of the Provisional Government of the Republic of Korea reached at after the review on its substances of activities as a government is that it had not been effective enough in its governmental function to be recognized as an "effective government" which is a necessary element of State under international law. The corollary of this conclusion will be that there is no legal continuity among the Korean Empire, the Republic of Korea established at Shanghai on 1919 and the present Republic of Korea. If one holds that legal identity of States and legal continuity of States are the same concept, then this above said conclusion will also mean that there is no legal identity between the Korean Empire and the present Republic of Korea. On the contrary, if one takes the position which regards the legal identity of States and legal continuity of States as the different concepts, even though it is thought that there is no legal continuity between the Korean Empire and the present Republic of Korea, there may be legal identity between these two political entities. The theory of "re-established State" or "resurrected State" is to explain this kind of legal phenomenon. When it comes to the practices by the government of the Republic of Korea and international society concerning the legal identity between the Korean Empire and the Republic of Korea, Korean government has been arguing consistently that there is legal identity between the two States. At the same time, international organization as the Universal Postal Union and some depository States of certain multilateral treaties also treated the Korean Empire and the Republic of Korea as legally identical State. Three Baltic States, after their independence from the former Soviet Union on 1991, also maintains that they are legally identical with the those States which were annexed by the former Soviet Union on 1940. This argumentation by the Baltic States are now being generally accepted by international society without any substantial objection. When we take this fact into consideration, it seems that the best way of explaining the practices concerning the legal identity between the Empire of Korea and the Republic of Korea coherently in the framework of theories of the identity of States under international law and the positive international legal rules is to recognize the Republic of Korea as a resurrected State of the Korean Empire.