국제법상 한국의 동일성 및 계속성에 대한 고찰

This article critically analyzes the question of identity and continuity of Korea which has recently become a highly controversial political issue in Korea from international legal perspective. Before embarking on the discussion of the Korean case, the author discusses how the question of identity and continuity of states is dealt with in general international law. He confirms that, despite a heightened degree of uncertainty and ambiguity surrounding the concept, the identity and continuity of the state has achieved solid positivity under international law. He goes on to ascertain the criteria to be utilized in deciding on the identity and continuity of states. He also examines the relationship between the two components of the concept, i.e., identity and continuity. According to him, the latter concept is often resorted to when a state is annexed by another state in an illegal manner, for instance, by use of force or conclusion of treaties under duress. In such cases, the annexed state would argue that despite the de facto occupation by the annexing state, the former state continued to exist de jure. Based on these discussions, the author then tackles the thorny question of identity and continuity of Korea. The question of whether Korea was lawfully annexed by Japan in 1910 has been an acute bone of contention between the two states since the normalization of their diplomatic relations in 1965. The dominant view in Korea (including the official position of the Korean Government which was put forth in a clear and articulate manner in 1986) is that the treaty of 1910 was null and void ab initio, meaning that the state of Korea continued to exist de jure notwithstanding the de facto occupation by Japan. One is confronted with a dilemma because this view appears to diverge substantially from the view held by international society that regards the establishment of a new Korean Government as the birth of a new nation. The author suggests that this normative dilemma falls into the realm of relationship between national and international law. Therefore, the divergence or conflict does not arise on the same normative plane. The question boils down to how to manage this divergence or gap in a most frictionless manner. Having ascertained that the Korean case falls under the category of continuity, the author goes on to raise the question of to what extent this continued state is identical with the Korea of 1910. It appears that Korea did not argue for a strong identity with the ‘old’ Korea, in particular, with respect to the internal legal order and the treaty relations. Therefore, the Korean case can be categorized as ‘continuity with partial identity’.