강박에 의하여 체결된 을사보호조약의 국제법적 효력

Whereas Article 51 of the Vienna Convention of the Law of Treaties (hereinafter, “VCLT”) applies to acts of threats or coercion directed against the State’s individual representative in his or her personal capacity, Art 52 of the VCLT covers exclusively the force addressed to a State organ (for example, the government) or the State’s representative in his or her official capacity (for example, the head of State, foreign minister). While there was general agreement amongst writers that coercion of the representative rendered the represented State’s consent to be bound by the treaty voidable or void, it became generally recognized that military force employed against the State itself invalidated consent to be bound by a treaty after the entry into force of the UN Charter. The two forms of coercion provided for in the VCLT coincided in the 1905 Japan-Korea Protectorate Treaty, which was signed in the presence of armed Japanese soldiers by the Korean government. In other words, coercive acts or threat against Korea were tailored in such a manner as to specifically induce the representative’s fear for his personal life or well-being. The 1905 Japan-Korea Protectorate Treaty procured by coercion against Korea prior to the emergence of the rule codified in Article 52 would not, under the inter-temporal law be deprived of its validity by the operation of the provision’s customary equivalent. However, the rationale of personal coercion of the representatives as a ground for vitiating consent would still hold.