19세기 말 20세기 전반기 ‘한국’의 국가적 지위에 관한 국제법적 고찰

Abstract

It is generally assumed that the two Koreas in the Korean Peninsula were established in the year of 1948. It is commented that the Republic of Korea (ROK) separated in 1948 from Japan and that the Democratic People’s Republic of Korea separated from ROK through the Korean War. In ROK, there is a deep divide as to the correct date of ROK’s foundation. The preamble of the First Constitution of ROK, adopted on 17 July 1948, provides that the people of ROK then reestablish an independent democratic state in succession to the great spirit of independence proclaimed through the March First Movement in 1919 which established ROK. The current Tenth Constitution of ROK adopted in 1987 provides in its preamble that ROK inherits the legal identity of the Provisional Government of ROK established in 1919. The historical facts around the year of 1910 are thorny issues in the relations between Korea and Japan. The Empire of Japan started her control over the Korean Peninsula through the Treaty of Annexation of 1910. For the present, Japan’s main position is that there were no war situations between Korea and Japan at around the year of 1910. When the Japanese Imperial army crossed over the Korean strait into the Empire of Korea in 1904, the Imperial Government of Japan insisted that they were protecting Korea from the potential Russian invasion. When the Empire of Japan entered into the Convention between Japan and Corea of 1905, they coerced Korean plenipotentiaries into agreeing with terms and conditions of the Convention. The Empire of Japan closely followed suit of the practices of European powers making treaties of protectorates in West Africa. It is not clear that one state was legally allowed to use force to subjugate another state in peace time in the early 20th century when it was not prohibited clearly under the contemporary international law. It is also not clear that the Treaty of Annexation of 1910 was duly made under the international law applicable at that time. In terms of legal status, ROK was identical with the Empire of Korea whose sovereignty was oppressed by the force of the Empire of Japan for almost 40 years. ROK’s lineage does not start from 1948 but from 1910.