韓國倂合關聯'條約\ 有無效論의 意義와 限界

박배근(Park Pae-Keun) 부산대학교 법학연구소 2003 법학연구 Vol.44 No.1

Concerning the validity of the treaties related to the annexation of Korea by Japan and concluded in the beginning of the 20th century, there is wide difference of opinion not only between Korean government and Japanese government but also among many Korean and Japanese scholars. Japanese government and many Japanese scholars maintain that those treaties, although unjust, were concluded lawfully according to the international law at the time and as result remained valid throughout so called Japanese 'colonial rule' of Korea. Korean government and almost all Korean scholars argue that they were unjust and also had no validity at all ab initio. When we examine the debates and arguments with regards to the validity of the treaties, it comes to mind that there are serious problems in their form and premises. First, they are proceeded in the form of legal syllogism and takes so called 'positive' international law of the time as the major premise. In accordance with this logic, the contents of the 'positive' international law are tried to be evidenced through the many statements of the authors of international law at that time. However, it is highly doubtful whether at that time there really had existed 'positive' international law which can be recognized and evidenced 'objectively'. All submitted evidences of the existence of certain rules concerning the validity of treaties are taken from books of many international lawyers of the 19th century. Nevertheless, what the authors say in their books is not always the statement of 'positive' international law. They may be only the result of the authors' speculation or some expression of desirable rules in their opinions. Moreover, there are discrepancies between the authors concerning the rules. This kind of evidencing 'positive' international law also distorts the original meaning of the 'statement' in the text by disregarding its context. Secondly, the debates and arguments do not reflect on the nature and legitimacy of the 19th century 'international law'. The rules of international law written down in the books in this period of time are very speculative one and imperialistic and euro-centric in its nature. This connivance plays the role of hiding the unjust characteristics of the 'traditional' international law. Arguments regarding to the treaties may not be proved right or wrong. They could only have the more persuasiveness or the less. The last resolution of all the problems occurring from the 'validity' or 'invalidity' of the treaties might be arrived through the will and determination of the governments alone.

시제법적 관점에서 본 한국병합관련 ‘조약’의 효력

박배근(Park Pae Keun) 대한국제법학회 2009 國際法學會論叢 Vol.54 No.2

1998년에서 2000년에 걸쳐 일본의 『세카이』지를 무대로 하여 한일 양국 학자들 사이에 이른바 한국병합관련‘조약’의 효력을 둘러싼 치열한 논쟁이 전개된 바 있다. 논쟁은 크게 두 가지 논점을 축으로 하여 전개되었다. 첫째는 이들 ‘조약’이 강박에 의하여 체결되었기 때문에 무효인가하는 문제였다. 둘째는 이들 ‘조약’을 체결하는 형식과 절차에 하자가 있었기 때문에 무효인가하는 문제였다. 후자의 문제를 둘러싼 논쟁의 주체는 이태진 교수와 운노 교수였다. 이태진 교수는, 한국병합관련‘조약’, 그 중에서도 특히 1905년 ‘조약’과 1910년의 병합 ‘조약’과 같은 중요한 조약이 이른바 정식조약이 아닌 약식조약으로 체결된 점, 다시 말해 전권위임장이 부여되지 않았거나 비준이 이루어지지 못하였다는 점, 이를 ‘조약’에 ‘treaty’라는 명칭이 붙어 있지 않고 ‘agreement’, ‘convention’ 등의 명칭이 붙어 있다는 점 등을 근거로 ‘조약’의 무효, 나아가서는 ‘조약’의 불성립을 주장했다. 이에 대하여 운노 교수는, 조약의 체결 형식 여하에 따라 조약의 효력이 달라지는 것은 아니라는 점, 조약은 전권위임장의 부여 없이, 또 비준 없이 체결되고 발효되는 것이 있다는 점, 중요한 정치사안에도 ‘convention’이라는 명칭의 조약이 체결된다는 점을 들어 반론하였다. 어느 쪽의 주장이 시제법적 관점에서, 다시 말해 한국병합관련‘조약’이 체결되던 당시의 실정국제법에 비추어 타당한지를 판단하기 위하여 당시의 대표적인 서양 국제법학자들 및 일본 국제법학자들의 저술들을 살펴볼 필요가 있다. 이들 저술들 속의 관련 서술들을 검토해 보면 다음과 같은 결론을 얻을 수 있다. 첫째로, 조약의 명칭 여하를 기준으로 한국병합관련‘조약’의 성립 여부 또는 유무효를 논할 수는 없다. 둘째로, 한국병합관련‘조약’이 체결되던 시기에 일정한 직책에 있는 사람은 전권위임장 없이 조약을 체결할 수 있다는 것이 인정되었다. 그러나 외무장관이나 외교사절이 아닌 사람에게는 전권위임장이 반드시 요구되고 있었으므로, 일정한 직책에 있지 않은 사람이 전권위임장 없이 체결한 조약이 무효라고 하는 것은 당시의 법에 비추어 타당한 주장이라고 볼 수 있다. 셋째로, 특별한 사정이 없는 한 당시에 조약은 비준에 의하여 발효하는 것으로 인식되고 있었다. 조약은 비준되는 것이 원칙이었으며, 비준 없이 조약이 발효하는 것은 예외에 속하였다. 그런 점에서 한국병합관련‘조약’과 관련하여 비준서의 결여나 비준과 관련된 하자를 논거로 하는 무효론은 당시의 국제법이 비추어 상당한 설득력이 있다. 넷째, 당시의 조약 체결관행을 보면 모든 조약은 이태진 교수가 말하는 이른바 ‘정식조약’으로 체결되는 것이 원칙이었다. 이태진 교수의 주장은 역사학자가 국제법적 문제를 다루는데서 오는 일부 오류가 있으나 그 가장 중요한 논지, 즉 국권 이양과 같은 중대 사안을 전권위임장이나 비준 없이 체결된 조약으로 처리할 수 없으므로 한국병합관련‘조약’은 무효라는 주장은 시제법적인 관점에서 충분한 타당성이 있는 것이다. From the year 1998 to the year 2000, the Sekai, a widely read Japanese Journal of which the title means 'the World', had become a forum for hot debates concerning validity or invalidity of the so-called 'treaties' related to the Japanese annexation of Korea. In the debates, two points were the basic subjects of controversy. One was the problem whether those 'treaties' were invalid because they were concluded by coercion. The other was the problem whether they were invalid because there were grave defects in the forms and procedure by and through which they were concluded. The second point was the subject of debate between professor Tae-Jin Lee of Seoul National University and professor Fukuju Unno of Meiji University. Professor Lee maintained that treaties such as the 1905 treaty which made Korea a protected state, and the 1910 treaty which annexed Korea into Japan were invalid ab initio, and in fact never concluded as they were concluded by representatives who lacked full powers and were not duly ratified. 'The fact that those 'treaties' lacked title or had the title of 'agreement' or 'convention' instead of 'treaty' is another basis on which he argued that they did not have any validity. Professor Unno objected to professor Lee as follows: validity of a treaty was not influenced by the forms of conclusion of treaties and their titles; at the time when the treaties related to Korean Annexation were concluded there were many examples of treaties which were recognized as valid though they were concluded without full powers and ratification; at the time there were treaties titled' convention' which regulated politically important matters such as the transfer of important state authorities. In order to judge whose assertion is more persuasive and said to be correct from the perspective of inter-temporal law, the texts of the most representative western and Japanese international law scholars at the time such as Wheaton, Bluntschli, Woolsey, Hall, Oppenheim, Akiyama, Kurachi, Ariga and Tachi were reviewed. The conclusions from the review are as follows: Firstly, title of a treaty cannot be a criterion to decide whether a treaty can be recognized as valid or not. Secondly, at the time. in order for a representative of a State who was not a minister of foreign affairs or a diplomatic agent to the other party of the treaty to conclude a valid treaty, presentation of full powers was essential. Therefore, it can be said that a treaty concluded by a representative who was not a minister of foreign affairs or a diplomatic agent and did not have full powers was invalid from the perspective of inter-temporal law. Thirdly, it was generally admitted at the time that, if there were no special circumstances, all treaties were to be ratified should it enter into effect. In principle all treaties were required to be ratified to have effect and a treaty entering into effect without ratification was exceptional. This supports the persuasiveness of professor Lee's maintenance. In the professor Lee's assertions and explanations which we can read in the manuscripts published in the Sekai, some inaccurate understandings of international law are found. That may be accounted by the fact that he is a historian who dealt with international legal problems through the texts. However, the most basic and important point of his assertions that essential State authorities and powers could not be transferred by means of treaties concluded by representatives without full powers and never duly ratified, and therefore the treaties related to Korean annexation never entered into force and were not valid an initio should be said to be true from the perspective of inter-temporal law.

Introduction of Western International Law into East Asia - Mergence or Conflict and Substitution

PARK, Pae Keun(박배근) 대한국제법학회 2011 國際法學會論叢 Vol.56 No.4

서양에서 기원한 국제법이 동아시아에 들어왔을 당시 국제법적 질서는 이미 동아시아에 존재하고 있었던 중화질서와 조화되기보다는 충돌되었다. 당시의 조선의 입장에서 이러한 충돌은 국제법상의 조선의 법적 지위라고 하는 문제를 야기시켰다. 왜냐하면 조선은 중화질서 아래에서는 중국에 대한 조공국이었으며 이는 새로운 국제법질서 하에서는 종속국으로 이해될 수 있는 것이었기 때문이다. 조선의 지위를 새로운 국제법의 틀안에서 다시 인식하는 문제는 매우 현실적인 중요성을 가지고 있었다. 왜냐하면 이 문제에 대한 대답에 따라 조선의 조약체결능력이나 사절의 접수 파견 능력, 국제법상의 책임 능력 등이 달라질 수 있기 때문이다. 유길준의 양절체제론은 이 문제에 대한 조선 지식인의 대답이었다. 서유견문 제3편 ‘邦國의 權利’에 등장하는 이 이론은 조선과 중국이 모두 두개의 서로 다른 규범체계 하에 속하고 있다고 주장한다. 그 중 중화질서라고 하는 규범체계에 따르면 조선은 중국의 속국, 중국에 대한 조공국이다. 그러나 이러한 사실은 국제법 질서 하에서의 조선의 주권독립국으로서의 지위에 아무런 영향을 미치지 못한다. 그러므로 조선은 국제법이 국가에 부여한 모든 권리를 가지며, 이것이 바로 유길준이 양절체제라고 하는 개념으로써 서유견문에서 논증하려고 하였던 바이다. 양절체제라고 하는 개념은 서로 경합 충돌하는 중화질서와 국제법질서 하에서의 한중관계의 특별성을 개념화하고 있다는 점에서는 이론적인 개념이다. 그러나 동시에 한국의 주권 독립적 지위를 논증하기 위하여 창안된 개념이라는 점에서는 매우 실제적인 개념이다. 또 조선이 청에게 조공을 하고 있다는 사실을 말한다는 점에서 그것은 記述的(descriptive)인 개념이다. 그러나 그러한 사실이 조선의 종속국적 지위로 해석되어서는 안 된다고 주장하는 점에서는 그것은 규범적 (prescriptive)인 개념이다. 그런 의미에서 그 개념 자체가 양절적이라고도 할 수 있는 다의적인 개념이다. When international law of Western origin was introduced into East Asia, conflict with the Sinocentric order, which already existed there, was a more conspicuous feature than mergence. For Korea, this conflict raised the problem of her legal status under international law, as Korea had been a tributary state to China under the Sinocentric order and this fact might have been reflected to the eyes of international law as vassalage. This problem of re-comprehension of the status of Korea in the framework of international law had a very practical significance, because Korea might or might not conclude treaties with Western states, send and receive diplomatic missions to the Western states and owe responsibility for the legal problems that occurred between Korea and Western states according to the answer to this question. YU Kil-chun’s theory of the ‘Yangjul System’ (Twice Folded System) was a response by a Korean intellectual to this problem. The theory, suggested in Chapter 3 of ‘Seoyugyenmun’ (Observations on Travels in the West), argues that both Korea and China were under two different normative systems. According to one system, the Sinocentric System, Korea was a tributary state to China. However, this could not affect the sovereign and independent status of Korea under another system, the system of international law. Therefore, Korea was a state with full fledged rights bestowed by international law. This was what YU tried to demonstrate in his book using the concept of ‘Yangjul’, a concept which is called a intuition of genius. This concept is a theoretical concept as it conceptualizes the unique state of the relationship between Korea and China under the two competing and conflicting orders of Sinocentrism and international law. At the same time, it is a practical concept as it is a concept invented to contribute to demonstrating Korean sovereignty and independence. It is a descriptive concept as it states that the relation between Chosun and Qing was an unequal one as the former had paid tribute to the latter. However it is also a concept of prescription as it asserts that the legal status of Chosun under international law should not be misunderstood as vassalage. It is both a theoretical and a practical concept and both a descriptive and a prescriptive concept. In this sense it in itself is a twice folded concept.

국내법의 국제법 합치해석에 관한 일고

박배근(Park Pae Keun) 국제법평론회 2017 국제법평론 Vol.0 No.46

Interpreting domestic law consistently with international law is functions as technique to implement international law in a domestic legal system. The obstacles caused by the lack of direct applicability or self-executing character of a treaty may be circumvented by consistent interpretation of domestic law with international law or standard. This is the reason why much interest and attention is given to it. Especially scholars and practitioners enthusiastic in protection of human rights through international human rights instruments emphasize the usefulness and importance of the consistent interpretation of domestic law according to international norms, calling it as ‘indirect incorporation’. In this article, the concept of the consistent interpretation, its history and significance, its formal and substantive basis, conditions and limits put upon it are reviewed. The author tried to clarify that interpreting domestic law in line with international law should not be done when there is manifest intent to derogate international law on the side of the legislature. In addition, it is pointed out that the judiciary should not encroach the constitutional division of powers by expanded and arbitrary use of skill of consistent interpretation. The author argues that Korean courts are under the legal obligation to perform consistent interpretation. The legal basis suggested for such obligation is paragraph 1, article 6 of the Korean Constitution which provides the principle of respect for international law. Even if this legal obligation is not recognized, courts may do consistent interpretation on the basis of their own discretionary power with regard to interpretation of law. Finally, it is strongly recommended that Korean courts, which are told not to be international law friendly, take consistent interpretation more aggressively as their tools in both maintaining the unity of Korean legal system and implementing international law in Korean legal system.

국제법학방법의 서설적 고찰

박배근(Park Pae Keun) 국제법평론회 2014 국제법평론 Vol.0 No.40

Method is problematic in two ways to scholars of international law. First, a scholar of international law needs a method to systemize knowledge of international law. Second, to understand the meaning of texts in which some statements about a method of international law are included, an international law scholar must have some knowledge about the method. For example, if an international law scholar does not have any knowledge about 'Policy Oriented Theory of International Law', he / she cannot understand such proposition as "McDougal's theory will be helpful in explaining the differences of the States' position with regard to a delimitation of maritime boundaries." Therefore, it is inevitable for a student of international law to have basic understanding and knowledge of methods adopted by scholars of international law. Because there are so various kinds of methods of international law, we need a framework through which we can grasp the contents and characteristics of certain method of international law. As such framework, this review suggest that methods of international law must be understood according to the order of their appearance and in relation with general methods of jurisprudence. Moreover, this review emphasizes that methods of international law are necessary to be examined under the perspective on the object of international law which a scholar adopting certain method of international law pursues. To expose the differences among methods of international law, asking questions about most problematic issues of international law would be very useful method. Such issues may include the source of validity of international law, elements of formation of customary international law, state practice constituting an element of customary international law, existence and significance of 'soft-law', peremptory norms of international law, principles of treaty interpretation, legal character of the right of self-determination, function of international judiciary organs in international law, humanitarian intervention, imperialist character of international law, etc.

국제법학방법으로서의 ‘국제법에 대한 제3세계의 접근'

박배근(Park, Pae Keun) 국제법평론회 2015 국제법평론 Vol.0 No.42

As a keynote speech an Academic Conference held under the subject of "Three World and International Law", this essay tries to make an expository description of the TWAIL(Third World Approaches to International Law) postulating it as a method of international law. The first matter to be made clear for such a description is "what the third world is". The words "third world" are used in different meaning in different contexts. However, for the TWAIL as a method of international law, what is important is not the "existence of unproblematic monolithic category" but the "existence of a group of states and populations" which deem themselves as third world, as professor Okafor emphasizes. According to the time when it appeared, TWAIL is classified as TWAIL I and TWAIL II. TWAIL I appeared in the circumstances of decolonization. In that sense, the Bandung Conference in 1955 is called as the birth place of the TWAIL I. TWAIL II is said to have originated from meeting of graduate students at the Harvard Law School in 1996. Therefore, TWAIL II is 40 years later than TWAIL I. At that time, European colonialism seem to have disappeared from international society. Nonetheless, as a matter of fact, it maintained its life as neo-colonialism. The TWAIL II wanted to expose and criticize this (neo-)colonialism deeply rooted in international law. In the next part of the expository description, main assertions of the TWAIL I and TWAIL II are introduced. TWAIL's relation with other methods of international law and methods of law is reviewed also. It is explained that among many methods of international law TWAIL especially criticizes and objects to the 19th century legal positivism and its successors. The fact that the TWAIL borrows much from methods of law such as history of law, Marxist theory of law, and economic analysis of law is mentioned. The influence of structuralism and post modernism on the TWAIL and the commonality among the TWAIL and Critical Legal Studies, New Approaches to International Law, Critical Race Theory and LatCrit(Latina and Latino Critical Legal Theory) are also pointed out.

한국병합관련조약의 효력과 국가 대표의 매수

박배근(Pae Keun Park) 서울국제법연구원 2010 서울국제법연구 Vol.17 No.2

As is well known, the Treaties related to the Annexation of Korea has been argued as null and void ab initio on the basis that these treaties were concluded under coercion of the representative of Korea or they have grave defects in the forms and procedure of their conclusions. In addition to these reasons, recently another question was raised concerning the validity of these treaties. It came to be known that Japan provided considerable sums of money to the Korean Emperor, Royal family members, ministers and other persons who were related to the conclusion of these treaties. To international law scholars, a historian raised a question whether this provision of money by Japan can influence the validity of the treaties. In 1969 Vienna Convention on the Law of Treaties, there is an article which can be applied to the Japanese government`s acts of affording money to Koreans in relation with the conclusion of the treaties: article 50 regulating Corruption of a representative of a State. However, this Convention was concluded on 1969 and the Japanese government`s acts were done around on 1905. Therefore, according to the principle of inter-temporal law, article 50 of the 1969 Vienna Convention per se can not applied to the Japanese acts. The discussions surrounding this article during the meetings of the International Law Commission and United Nations Conference on the Law of Treaties show that it was not an article codifying pre-existing customary international law. At the same time, there were many arguments that corruption is subsumed by the article concerning fraud (Article 49) as an reason for invalidation of a treaty. To know the positive international legal rule of the time concerning the corruption or fraud as an element impeding the freedom of consent, most influential texts of international law published at 19th century were reviewed. Almost all of these texts enumerated fraud as an element invalidating treaty whereas no reference on the corruption can be found. In addition, corruption was suggested as a form of fraud in no works. In the light of this facts, it seems to be difficult to say that the Japanese offering of money invalidated the Treaties related to the Annexation of Korea.

동아시아 국제법 수용기의 조선의 국제법적 지위에 관한 일고

박배근(Pae Keun Park) 서울국제법연구원 2004 서울국제법연구 Vol.11 No.1

대한민국임시정부의 국제법적 지위와 대한민국의 국가적 동일성(하)

박배근 ( Pae Keun Park ) 연세대학교 법학연구원 2004 法學硏究 Vol.14 No.1

한일기본관계조약의 국제법적 문제점에 관한 재검토

박배근(PARK Pae-Keun) 국제법평론회 2011 국제법평론 Vol.0 No.34

"Treaty on Basic Relations between the Republic of Korea and Japan", concluded on June 22, 1965 between Korea and Japan is a treaty with very small number of articles. However, it is very important treaty as it regulates the ‘basic’ relations between the two States. The unfortunate aspect of this treaty is that it did not resolve clearly the most fundamental problems between them, namely the problems arose from Japanese occupation and rule of Korea from 1910 to 1945. Therefore, this treaty itself has been the subject of many controversies between Korea and Japan. Korea interprets article 2 of the treaty as providing that "all treaties or agreements concluded between the Empire of Korea and the Empire of Japan on or before August 22, 1910" were without any legal validity ab initio. Japan interprets the same article as meaning that they were validly concluded and now it lost its validity and legal effects. With regard to the article 3 of the treaty, there were interpretative differences between Korea and Japan about whether "the Government of the Republic of Korea is the only lawful Government" in the entire Korean peninsular or only in the southern part of it. Now, as Korea does not oppose the establishment of diplomatic relation between North Korea and Japan, this difference became already dissolved. After almost 50 years from its conclusion, it would be necessary to estimate and think about many matters about the treaty. First, it has serious defect as a ‘basic’ relations treaty because it does not include any clause showing explicit common awareness of past history between Korea and Japan, principles to be followed in achieving historical liquidation and the direction of future aimed at by both States. Secondly, article 2 cannot have any significance as a treaty provision as long as interpretive differences about it continue between the two States. To my opinion, it is the attitude of the Japanese government not reflecting and regretting Japanese domination over Korea for 35 years th at caused the conclusion of the treaty without settling those interpretive differences concerning the article 2. Without the change of this attitude, the really friendly and cooperative relation between Korea and Japan would be very hard to be realized. Nonetheless, when we go out of the framework of the treaty and strictly legal perspective, we can see apology by Japanese peoples and reconciliation between the peoples of both States. For this out-of-legal reconciliation, spread of cognizance of real historical facts is important and changes in education in Japan may be expected to play important role.