제2차 세계대전 후 미국의 군사점령 논리와 냉전–에른스트 프랑켈의 국제법적 분석을 중심으로–

In August and September 1945, two significant historical events occurred in Korea. The first was the liberation that immediately followed the collapse of the Japanese Empire. The second was the division at the 38th Parallel leading to occupation by international superpowers. Accordingly, these structural events resulted in the establishment of separate governments in South Korea and North Korea in 1948, and the outbreak of the Korean War in 1950. It is certain that the events of “liberation” and “occupation” both settled in 1945 were the critical moments that decided the flow of contemporary Korean history afterwards. Military occupation on Korea by U. S. and Soviet Unions rapidly transferred from liberation to re -occupation. America’s occupation on Korea had a different character from such as defeated Germany and Japan had. This paper aims to elaborate how the United States military rationalized the occupation of South Korea in 1945, and what was the justification under international law, relying upon Ernst Fraenkel’s text as a legal adviser during that period. Fraenkel, who had studied labor law in Germany, fled to the United States and there published Dual State under an accusation of Nazism. For a time, he worked in the Office of Strategic Services(OSS) in 1944, and subsequently studied the French Rhineland military occupation in World War I. When World War II ended, he proceeded further as an international law specialist working in the American military judiciary. In early 1948, he completed a report entitled Structure of the United Army Military Government in Korea to present before the United Nations Temporary Commission of Korea(UNTCOK). In the report, Fraenkel set out a logic that the American military’s taking over South Korea is like “an occupation of a territory which appears to be no man’s land, in accordance with international law.” This was a mere justification taking advantage of the absence of sovereignty. This was an old, general law demonstrated by European colonialism from the nineteenth century until the early twentieth century, which claimed the territory where none had sovereignty was defined to be “Nobody’s territory: Terra nullius ,” and thus the first mover takes preoccupancy. Justification of military occupation, that is, the theory of Terra nullius, was another name for merciless violence toward colonial victims. In 1951, Fraenkel amended the theory of Terra nullius , but the American occupation of South Korea was irreversibly returning to the earlier theory of Terra nullius , which symbolized colonialism, and the weakening of the ideological pursuit of World War II, just for pursuing America’s own interests. However, the Joseon Dynasty, which continued into the early twentieth century in Korea, was not a “no man’s land” as the United States Army Military Government in Korea claimed. In fact, the rule of the United States Army Military Government in Korea made South Korea fall to a nation lacking sovereignty. After Japanese colonialism collapsed, there were positive independent activities to establish a nation inside South Korea carried out by The Preparatory Commit tee for National Construction(建國準備委員會) and the People’s Committees(人 民委員會). But their activities were consistently restricted by the United States Army Military Government. The American military occupation thus occurred in Korea in the “no man’s land” and not the other way around. As for the authority and power in Korea at that time, the Commander of the United States Armed Forces in Korea was much stronger in South Korea than that of the Governor-General of Joseon. In short, the United States Army Military Government was an absolute authority. The renewal of a world New Order is a revolutionary movement, especially at the period when everything had to be settled in new positions after the world war. The American military occupation meant the “State of Exception”(Ausnahmezustand ), in which the power of authority created the legal standards. As a result, a well-known New Order after World War II, the so-called “Cold War,” is in a causal relationship with an absolute authority created through military occupation.