1910년 ‘한일병합조약’ 체결강제의 역사적 진실규명과 국제법적 조명

This year marks the 100th anniversary of Japan’s forced annexation of Korea. Famously defined as a “constant dialogue between the present and the past,” by E. H. Carr—the representative historian of the 20th century—in his book What Is History?, history asks us what the fundamental meaning of the centenary would be for us. A string of treaties between Korea and Japan are prime examples of Japan’s continued attempts from the late 19th century to gain international legal grounds as a mechanism to glorify and justify its imperialistic aggression under the banner of “Out of Asia, Toward Europe.” The culmination of such moves, the 1910 Korea-Japan Annexation Treaty, is found to be null and void under International Law as it was made through coercion on the head of state and it involves formal and procedural flaws. On May 10, 2010, 214 intellectuals from Korea and Japan made their first joint declaration to cite “the 1910 Korea-Japan Annexation Treaty was null and void.” The declaration also pointed out, “The preamble and text of the Treaty were all false, and especially its procedures and format involved serious flaws.” As there was no response from the Japanese government, 1,118 intellectuals from both countries made another joint declaration on July 28 to reiterate the nullity and invalidity of the 1910 Treaty. Under such circumstances, Japanese Minister Kan Naoto made remarks on the 100th anniversary of the Korea-Japan Annexation Treaty on August 10. While some suggest his remarks represent one step forward in Japan’s historical stance, others criticize his remarks as he did not recognize the illegality and invalidity of the Annexation Treaty, which Korean and Japanese intellectuals have called for, and he did not mention any substantial measures to address the core issues of historical conflict between the two countries: Japan’s forcible drafting of Korean men into the military, and its exploitation of Korean women as “comfort women.” After all, Japan has maintained to date that its annexation of Korea in 1910 involved no flaws from the viewpoint of International Law or that the annexation itself was valid despite some potential ethical problems. Meanwhile, a recent joint survey held by Korean and Japanese media in the centenary of Japan’s forcible annexation of Korea shows that, when it comes to bilateral economic cooperation, a vast majority of citizens in both Korea and Japan agreed on the need for the conclusion of a Korea-Japan free trade agreement (Korea 66%, Japan 65%). As for historical rectification, on the other hand, significant differences were observed between Koreans and Japanese concerning the illegitimacy of Japan’s annexation of Korea (Korea 78.9%, Japan 20%). In this sense, reexamining this issue would be an imperative challenge ahead of us. The validity of Annexation-related “treaties” has been an important legal issue between Korea and Japan, undoubtedly because it has to do with the legitimacy of Japan’s 35-year rule over Korea under International Law. Korea views Japan’s rule over the country not as a so-called colonial rule but an unlawful “possession by force.” Therefore, the illegality of Japanese rule over Korea can be demonstrated by proving the 1910 Korea-Japan Annexation Treaty was null and void. The debate between Professor Yi Tae-jin of Korea and Professor Unno Fukuju of Japan—carried on in the Japanese journal Sekai since 1998—and the arguments from two Japanese scholars of International Law, Sakamoto Shigeki and Sasagawa Norigatsu, have provided important implications from the perspective of International Law concerning the formal and procedural validity/invalidity of treaties related to Japan’s annexation of Korea in 1910. The five diplomatic agreements that Japan coerced Korea into to take its sovereign rights can be outlined as follows: (a) the Korea-Japan Protocol (February 23, 1904; to gain rights to use the Korean territory); (b) the Korea-Japan Agreement (August 22, 1904; to seize Korea’s diplomatic rights); (c) the Korea-Japan Protectorate Treaty (November 17, 1905; to deprive Korea of its external sovereignty); (d) the New Korea-Japan Treaty (July 24, 1907; to take Korea’s authority over internal affairs); and (e) the Korea-Japan Annexation Treaty (August 22, 1910; to turn Korea into its colony). As for the formal and procedural invalidity of these five agreements concerning Japan’s forced annexation of Korea, Yi Tae-jin claimed that the first four agreements took simplified formats despite the importance of the issue and involved acts of deception in the preparation process. He also pointed out that the last agreement was made in the form of full-fledged treaty but lacked the signature of the Korean Emperor which constituted an instrument of ratification, implying the annexation between Korea and Japan was not successfully completed. In his book, however, the Japanese professor Unno suggests that Japan’s coercion on the Korean Emperor into the Korea-Japan Annexation Treaty was apparent but denies any flaw in its procedures and format, claiming the Treaty was legally valid. With this regard, “Emperor Sunjong’s last words,” and “August 23 1910, Japanese newspaper Tokyo Asahi Shimbun” demonstrate the historical truth of the coerced conclusion of the 1910 Korea-Japan Annexation Treaty. In “Reconsideration of the procedures of the Korea-Japan Annexation Treaty from the viewpoint of International Law,” I examined the Korea-Japan Annexation Treaty not just from the perspective of intertemporal law that Japan has suggested but also from the viewpoint of international law, including today’s law of treaties. The Treaty proved to be null and void from both perspectives. If the historical definition of justice is “rediscovery” through constant dialogue between the past and the present, the principles of International Law as a common norm for the international community should also highlight the mission of realizing justice and seek for further development. In this regard, the declarations of Korean and Japanese intellectuals that the 1910 Korea-Japan Annexation Treaty was already null and void may have minimal repercussions at this point of time but will eventually serve as a bridge for historical dialogue and education and trigger meaningful changes in the Japanese civil society. After all, the substantial and proactive moves of Japanese political leaders for the genuine peace and prosperity of two countries in the 21st century would be possible only on the basis of the mature historical awareness of Japanese civil society. The Japanese government should recognize that its denial of disgraceful history is a denial of historical justice and refusal of peace. With universal justice and conscience of humanity in mind, it should seek to address the fundamental causes of historical conflict and thereby reinvent itself into a responsible member of the international community in pursuit of peace. The 100th anniversary of the Korea-Japan Annexation Treaty, the year 2010 should be the starting point of “realizing historical justice” for historical reconciliation and peace in a genuine sense.