조약법을 통해 본 1910년 병합조약의 무효 - 강제에 의한 조약의 효력을 중심으로 -

Whether the Treaty between Korea and Japan concluded on August 22 1910(the Annexation Treaty) was valid or not? The Korean Scholars emphasized the treaty was invalid, while the Japanese scholars alleged valid. Since there was no signature of Korean Emperor on the treaty, and the treaty was concluded by coercion. The former is relevant to Article 46 of the Vienna Convention on the Law of Treaty, and the latter was relevant to Article 51 and 52. However The Vienna Convention was conclude in 1969 after 50 years after the Annexation Treaty coerced to conclude. This research is confined to and focused on the latter issue with regard to invalidity of the Annexation Treaty. Japanese scholars maintained that the annexation was proceeded within the legitimate scope with lawful formality. Because coercive measures against state do not nullify the treaty at that time, whereas coercion against representative of state makes the treaty invalid. They wrote that it was lex lata rather than lex ferenda, which was inter-temporal law. Some scholars including few Korean scholars, admitted that this opinion has been of majority writers ot that times. Accordingly, this study analyzes and proves the theory admittable. Some scholars argued that coercion against state cannot be a reason to nullify the treaty since all peace treaties can be nullified if the assertion accepted. However, all treaties coercive against state will not be regarded as peace treaties. In addition to that, even the scholars accepting the valid theory admit the treaty is a kind of contract, as is mutual consent of free will. However, they do not clarify why the coercion treaty is different from a private contract and how the 'absence of free will' can make the treaty valid. Furthermore, certain publications in beginning of twentieth century show us that coercion against state cannot make the treaty valid. For example, German scholar Weinshel explained the coercion against whole state cannot be accomplished in case of all nationals were put into the jail. These arguments reveal that coercion against the state make the treaty valid is not accepted as a general rule of international law at the times. Corollary, the Annexation Treaty is invalid if a coercive measure against the state do nullify the treaty as some writers insisted. The fact that diplomatic power was deprived by Japanese Government in 1905 is another reason for the treaty being not valid, since a state without diplomatic power could not conclude treaty by itself.