<학위논문 소개>근대 국제법상 문명론에 대한비판적 고찰

The term “civilization” cannot be easily found in the current international legal system. Perhaps, paragraph 1 (c) of the Article 38 of Statute of International Court of Justice (ICJ) is one of the representative examples. It stipulates “the general principles of the law recognized by civilized nations” as one of the sources of international law. However, the term “civilized nations” here is anachronistic. As a separate opinion of judge Ammoun in North Sea Continental Shelf case indicates, the adjective “civilized” could be omitted in the United Nations era. Nonetheless, the concept of civilization cannot be entirely excluded in the present-day international conflict. When the context of the issue in concern is related to the 19th-century international society, it is not possible to remove the entire trace of the international law and its related jurisprudence of the particular time period. In Land and Maritime Boundary between Cameroon and Nigeria, ICJ affirms that the treaties concluded at that time are still effective today. However, the majority stance of the ICJ is based on an unexamined assumption: The 19th-century international law is valid within the standard of its time and therefore can be accepted without further assessment. Is this a sound assumption? The time-scope of the study is from the Vienna Concert (1815) to the time period before the establishment of the League of Nations. The expansion and the reorientation of the international society are two important characteristics of the time period. Regretfully, however, international law seemed to have served imperial motives of many colonial powers as well. Still, one of the distinguishing characters of the European imperialism was that Europe’s colonial activities can be justified in moral and legal terms. This idea of moral and legal justification compels us to revisit the concept of civilization once again. By citing Milano, Judge Bennouna pointed out that “Much of the international law of those times was based on the idea of the standard of civilization, by which an entity could enter into the realm of international society.” A quandary with the standard of civilization established by the international lawyers was that it delimits the boundary of the application of international law to the civilized nations. In other words, international law is not applied at all or is not applied in the same level to uncivilized nations. Accordingly, the so-called “uncivilized” nations cannot be protected by the international law and may not invoke rights enshrined thereof. Thus, even when there were serious procedural defects and unlawful duress during the conclusion of the colonial protectorate treaty, the standard of civilization justifies the treaty as valid and effective. However, there seems to be a theoretical issue with the claim of the limitation based on civilization. How could a treaty be valid according to the then-international law while international law is not applied between the civilized and uncivilized nations? Logically speaking, a treaty can only be valid when it is assessed according to international law. In other words, the application should be assumed when one claims the validity of the treaty. This question forces us to delve into a critical analysis of the distinction between civilized and uncivilized nations in the classical international legal system. The study argues that the distinction is theoretically contradictory, and it does not correspond with the state practice especially when it comes to limiting the application of the then-international law. Moreover, there were so-called “semi-periphery” states which have claimed for doctrines of non-intervention and other principles based on sovereign equality. This manifests the complexity as well as the complication of the then-international society. Korea had also argued international claims based on sovereign equality. King Kojong, for example, claimed the invalidity of the protectorate treaty that was concluded between Korea and Japan. He sent official complaints to the nations that made treaties with Korea based on serious procedural defects and unlawful duress. The implication of this study is counter-intuitively vast and large. The study argues that the discourse of civilization distinguishing the application of international law is legally contradictory when it comes to treaty conclusion. Therefore, the colonial treaties cannot be easily accepted as valid without further examination. This study is not concerned with the current Korea-Japan relation. The study is primarily concerned with the subject matter of “civilization” in the classical international legal system. This study provides a foundation to the international legal scholars in general and also to the ICJ that the 19th and early 20th century international law and colonial treaties cannot be taken without critical review.