Was the 1910 Annexation Treaty Between Korea and Japan Concluded Legally?

1. On 5 October 1995, Japanese Prime Minister Murayama stated that the Treaty of Annexation between the Empire of Japan and the Empire of Korea of 22 August 1910 was concluded "legally". The remark was merely a restatement of long-held official stance of the Japanese government. Yet, it attracted harsh criticism from the governments of the Republic of Korea (South Korea) and the Democratic People's Republic of Korea (North Korea), both of which hold the conviction that the 1910 treaty was concluded illegally. This article attempts to examine the arguments of both sides in regard to their legal validity. Hence, full historical analysis is not within the scope of this paper. However, to understand why the Korean governments reacted so strongly, it is necessary to view the dispute in historical context.

2. The fundamental objection of the Koreans to Japan is that it fails to face sincerely to its sins of the past. It is their conviction that Japan has continuously avoided admitting its military past and the atrocity associated with their colonial occupation. They voiced concerns each time when Japanese politicians and prominent persons made remarks which, in their view, had intentions to conceal, play down or justify the actions it committed while it ruled Korea. These remarks, according to Koreans, were evidences of Japanese people's denial of their history of oppression against their neighbours and their attempt to glorify their colonialistic past.[1]

3. Prime Minister Murayama's comment was yet another addition to this long list of controversial remarks made by Japanese politicians. The latest incident concerns the status of the 1910 Annexation Treaty. This treaty established the colonial rule of the Japanese Empire over the territory of Korea. Japan's official stance has been that the Treaty was concluded legally and it remained valid until the Japanese colonial rule was ended as a result of its defeat in the World War II. On the other hand, both of the Korean governments claim that the 1910 Treaty was concluded under the coercion of Japanese military power and therefore is illegal and void ab initio. The reason behind the Korean claim must be appraised here according to international law principles.

4. To claim that the 1910 Treaty is illegal and void, one must prove the existence of international law rules to that effect at the time of the conclusion of the Treaty. On the other hand, arguments opposing the existence of such a rule in 1910 claims that to argue so would be tantamount to rejecting the legitimacy of treaties of peace, such as the Potsdam Declaration of 26 July 1945, the acceptance of which by the Japanese government ended the World War II.[2]

5. Article 51 of the Vienna Convention on the Law of Treaties provides that: "The expression by a State of consent to be bound by a treaty which has been procured by the coercion of the representative of that State through acts or threats directed against him shall be without any legal effect."[3] This article is widely regarded as codifying the existing customary rule of international law.[4] However, scholarly opinions are divided on the status of Article 52, which states the rule applying the case of coercion to a State itself, rather than the representative of a State, as in a military conflict situation. Article 52 states that:"A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations."

6. It is understood that, by inserting this clause, the contracting parties intended to make the provision applicable against treaties concluded before the adoption of the Charter of the United Nations.[5] The provision particularly relevant in this case can be found in Article 1 (1), where it reads:

   "[The purposes of the United Nations are:] To maintain international peace and security, and to that end: to take effective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; ..."[6]

7. This clause clearly indicates that 'acts of aggression and other breaches of the peace' are forbidden. In this sense, the Annexation Treaty would have been clearly in breach of the principles embodied in the Charter. However, the principle's retroactive effect must be argued with caution. While international courts have upheld a provision of a treaty that is clearly intended to have a retrospective effect[7], the provision of the Vienna Convention lacks the specificity to be applicable to the present case. Therefore, the principle of intertemporal law should prevail in this situation.[8]

8. The principle of intertemporal law demands that the validity of legal rights must be determined by the law in effect when the right is created. This means that a treaty concluded legally in the light of international law in effect at the time of its conclusion is legal. The philosophy of de-legitimisation of war, which is the basis of the 'principles of international law' mentioned in the quoted provision of the Vienna Convention, does not go back long enough in history to make Annexation Treaty which was signed in 1910 illegal.

9. In the nineteenth century, states' right to resort to war was regarded as inalienable part of their sovereignty. The only international legal regulation was concentrated on determining what is admissible behaviour in the act of war (jus in bello). Very early attempts to check the States' right to resort to war can be seen in the Hague Peace conferences of 1899 and 1907, in which the Convention for the Pacific Settlement of International Disputes was signed. This Convention established the Permanent Court of Arbitration, where States with disputes were encouraged to submit their case instead of resorting to war.

10. Other important legal documents on legal restriction of war include the Covenant of the League of Nations of 28 June 1919 and the so-called Briand-Kellogg Pact of 1928. The Covenant of League of Nations provides that Member States were obliged to take their disputes to the Permanent Court of International Justice, established by the Covenant, or the Council of the League of Nations.[9] In the Briand-Kellogg Pact, contracting States agreed to renounce generally recourse to war for the solution of international controversies, and as an instrument of national policy.[10]

11. While these documents witness important philosophical background to the principle of peace and non-aggression proclaimed in the United Nations Charter, they alone do not create legal obligation on States to refrain from exercising military pressure. In the League of Nations system, States were permitted to recourse to war when the council failed to reach a unanimous recommendation on the resolution of conflict between them. The general prohibition of war provided by the Briand-Kellogg Pact is solely concerned with war stricto sensu, and cannot be interpreted as to prohibit an act of oppression using threat of war.[11] Therefore, there is no evidence in international legal documents that, in 1910, an act of aggression, as the Japanese imposition of annexation on Korea was, did not possess the legal effect of making a treaty concluded under such situation illegal and void under contemporary international law principles.

12. Having thus rejected the existence of general international law principles, we must now turn to the question whether there is a special circumstance or agreement that supports Korean allegation of nullity of the Annexation Treaty. Article 2 of the Treaty of Basic Relations between Japan and the Republic of Korea of 22 June 1965 reads:

    "It is confirmed that all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void".[12]

13. This article was included by the strong insistence of the Korean delegation and reflects its official stance that the Annexation Treaty was void before the conclusion of the Basic Relations Treaty. There is a slight difference of nuance between the Japanese and Korean texts of this article. While the Korean text is true to the above mentioned stance of its government, the Japanese text employs the expression that permits the interpretation that the Annexation Treaty was 'no longer valid' at the time of conclusion of the Basic Relations Treaty.[13] However, the end paragraph of the Treaty provides that, in case of conflict of interpretation between Japanese and Korean texts, the interpretation of the English text, which is of the same authenticity as the other two, shall prevail. Therefore, the stance of the Korean government shall be upheld on the question of interpretation of this article: the 1910 Annexation Treaty was null and void at least sometime before the conclusion of the 1965 Treaty. The official stance of Japan on this issue is that the Annexation Treaty was legally concluded and remained in effect until Korea's independence from Japan.[14] This position is not inconsistent with the interpretation of Article 2 of the Basic Relations Treaty discussed above. However, another difficult question arises from this stance. The date of independence of the Republic of Korea is 15 August 1948 and that of the Democratic People's Republic of Korea is 9 September 1948. Japan maintains that, in relation to South Korea, the Annexation Treaty became void on 15 August 1948; and in relation to North Korea, on 9 September 1948. However, the Basic Relations Treaty, citing the United Nations General Assembly resolution 195(III), recognised that the government of the Republic of Korea is 'the only lawful Government in Korea'. Therefore, Japan's stance that the Annexation Treaty remained valid until 15 August 1948 in the South and until 9 September 1948 in the North is questionable.[15]

14. The provision of Article 2 of the Basic Relations Treaty does not witness the existence of agreement between the parties that the 1910 Annexation Treaty was null and void ab initio. However, as the above discussion reveals, there is no ground to uphold the Japanese government's interpretation either. The matter is left for the governments concerned to sort out. In the meantime, the danger of occasional controversy like the recent one will persist.

    Notes

    [1] Kim, "East Wind - West Wind", Korea Herald (19 October 1995).

    [2] M. Tabata, Kokusaiho Kougi [Lectures on International Law], vol. 1, (revised ed. 1982) at 312. Compare S. Yamamoto, Kokusaiho [International Law] (1985) at 526. (Effectiveness of Potsdam Declaration is explainable from Art. 75 of the Vienna Convention.)

    [3] The Vienna convention on the Law of Treaties, adopted on 23 May 1969 (Hereinafter referred to as the "Vienna Convention").

    [4] Tabata, op. cit., at 312.

    [5] Ibid, at 313.

    [6] Charter of the United Nations, adopted on 26 June 1945, Art 1, para. 1.

    [7] Mavrommatis Palestine Concessions case, [1924] PCIJ, serie A, no. 2.

    [8] In general, see Elias, "Doctrine of Intertemporal Law", 74 Am. J. Int'l L. 285.

    [9] Covenant of the League of Nations, adopted on 28 June 1919, Arts. 12-15.

    [10] Treaty for the Renunciation of War as an Instrument of National Policy, adopted on 27 August 1928, Art. 1.

    [11] See, J. G. Starke, Introduction to International Law, (Tenth edition, 1989) at 535.

    [12] Official English Text, reproduced in 4 I.L.M. 924, 925.

    [13] Sasagawa, "Sekinin towa Nanika" [What is Responsibility?] in Shinto no Tomo (August 1995) 18, 20.

    [14] Ibid., at 21.

    [15] For Japanese delegation, the reference to the UN General Assembly Resolution 195 (III) was crucial. In paragraph 2 of the resolution, the General Assembly declares that there has been established a lawful government having effective control and jurisdiction over that part of Korea [south of 38 parallel] ... (Emphasis added) Japan stresses that this resolution recognises that the jurisdiction of the government of the Republic of Korea is limited to the part of Korea, now called South Korea. Following this interpretation, Japanese government maintains that unrecognised government of the Democratic People's Republic of Korea holds de facto jurisdiction over the part of Korean peninsula north of 38 parallel. The government of the Republic of Korea disputes this interpretation. See, Osato, "The Problem of Two Koreas", 18 Japanese Ann. Int'l L. 51, 58 (1974).