한국 강제병합 과정에 대한 재조명 - 한일구조약의 불법ㆍ무효성에 관한 법학적 연구 -

This article reexamines the process of Japan’s Annexation of Korea focusing on illegality of the prewar treaties forced on Korea by Japan, in particular the 1905 and 1910 treaties. This author raises three points in arguing the illegality of the process of Japan’s attempt to have colonized Korea. Korea was a sovereign Empire in 1905. when Japan demanded that Korea should accept the Japanese proposal of a protectorate treaty. The Korean Empire, however, resisted the Imperial Japanese Government's demand. The treaty was signed by then Korean Foreign Minister, who was forced to do so by ITO, Hirobumi accampanied by the Japanese military forces. It was, however, not ratified by Emperor Kojong, who had the sovereign power to conclude treaties. First, this author found the report of the United Nations International Law Commission (1963, Part II, p. 197), which raised the case of the 1905 Protectorate Treaty of Korea by Japan as one of the four major examples of this kind in history where treaties did not take any effect because of coercion of representatives. His report on this was submitted as a written NGO statement by IFOR to the UN Commission on Human Rights in 1993 (E/CN.4/1993/NGO/36). Second, as this was not enough for the Japanese government to change its position that they considered the treaty had legal effect with no illegality, the author, by researching into the original treaty documents in Japan, tries to confirm the findings made by Prof. YI, Taijin, who, on the basis of his researches on the original treaty documents in Korea and insisted that the 1905 treaty was forged by the Japanese government. Third, the Japanese government has been insisting that the 1905 treaty did not require any ratification by Emperor Kojong. There were no substantial researches on this issue by the international law experts except for some scholars in history or international relations studies in Japan. Prof. PAIK, Choong Hyun, who taught international law at Seoul National University criticized the Japanese government’s position and wrote that ratification was necessary for the prewar five treaties forced on Korea by Japan including the 1905 and 1910 treaties that eroded the sovereignty of Korea. The author, responding to the researches made by late Prof. PAIK, looks into practices in Holland and the international law textbooks published before 1905 in Japan to find then standard views on need for ratification of treaties. Lastly, the author explores the reasons why the Japanese experts have kept silence for 100 years on these issues. He proposes two major tasks, which could make difference for peace and prosperity in the Northeast Asian Area in the next 100 years.