일본의 독도에 대한 완강한 영토권 주장의 직접적인 근거는 다름 아닌 바로 이 ‘ 1910년 한일병합조약’이다. 이 조약 무효 원인 이분 론(二分論)과 조약법상 강박의 개념에 관련된 법리들에 관한 한국 학자들의 법적 논의가 하루 빨리 정확하고 정연한 법적 정론(正論) 으로 확립되지 않는 한 한 · 일 간의 독도문제는 영구 미제(永久未濟)의 영유권 분쟁으로 남아있게 될 것이다.
좀 더 종합적인 관점에서 말한다면， ‘ 1910년 한일병합조약’의 ‘부폰재’가 한 · 일 간에 더 이상 다툼이 없는 법적인 명제로 수 용되지 않는다면， 한 · 일간 과거사 인식 문제는 해결되지 않을 것 이며 따라서 양국 간의 정상적인 협력과 화해는 근원적으로 불가 능하게 될 것이다.
1965년 ‘한일기본관계조약’을 당장 폐기하고 대등한 한 • 일관계 를 정립할 수 있는 새로운 조약을 ‘명확한 합의로써’ 다시 제정하 라는 필자의 결론은 부담스럽고 반갑지 않은 ‘편협한 소수 의견’ 으로 i렴하되고 말지도 모른다.

In spite of the prevailing comprehension that the 1910 JapanKorea Annexation Treaty was validly made and entered into force, actually the invalidity of the treaty could be legally proved with just a simple review of a few historical facts. At the cabinet meeting in the afternoon, of November 17th 1905, convened to discuss the Protectorate Treaty (so-called the Second Korea-Japan Agreement), the prevailing opinions among the Korean cabinet members presented in the meeting had naturally formed in the direction to oppose this treaty. Mr. Ito Hirobumi who was informed of the negative atmosphere in the meeting from Ambassador Hayashi Gonsuke, intervened the meeting right away, accompanying with the garrison commanding general and the military police leader to frighten them. He threatened the members of the Korean Cabinet one by one, and had eventually won them over to accept the treaty. Among the seven members of the Korean Cabinet, only two, the Prime Minister, Han Kyou-Sul, and the Minister of Treasury, Min Y oung-Kee maintained the opposing opinions. These two members had been expelled from the meeting place and kept in custody by the Japanese military police. The other five Korean cabinet members were so frightened that they had resigned to express any opinion neither of affirmative nor negative. Mr. Ito regarded the silence as the agreement. Even for the final ratifying signature. Mr. Ito had a Japanese soldier to seize the seal of the Minister of Foreign Affairs by breaking through the Minister ’ s office without the owner ’ sprior approval, and had Mr. Park Jae-Soon, the Minister of Foreign Affairs forcibly to sign on the document. By that time Seoul had already been occupied by a Japanese cavalry unit, an artillery battalion and a military police unit. ln such a manner, on November 17th 1905, Mr. Ito Hirobumi pressed the Korean government to sign the draft treaty designed to isolate the Korean government by severing its foreign relations completely. Diplomacy was then taken from Korean control and placed under the control of the Japanese Foreign Office. The treaty also established the Office of the Resident-General in Korea to enforce colonial rule. Reviewing from the view of the law of the treaty, there had been the coercion of a state and the coercion of the representatives, simultaneously. ln 1905, the coercion of a state did not necessarily make a treaty unlawful. But the coercion of the representatives, especially such uncivilized, brutal manner of use of force exercised upon the representatives of a contracting party, shall hinder this treaty to be legally valid. Emperor Kojong, (of the Korean Empire) sent the secret envoy to the Hague Peace Conference in 1907, to declare the invalidity of the Second Korea-Japan Agreement. The secret emissaries of the Emperor Kojong arrived at the Hague on July 14th , 1907. One of them, Ambassador Yi Chun (李}佳) killed himself in the Hague in an anger at not being able to attend to the Peace Conference and the failure in appealing the Emperor ’ s Declaration of Denial of the Second Korea-Japan Agreement to the participating powers. Eventually, Emperor Kojong had been deprived off his throne by the Japan, because he sent the secret envoy to the Hague Peace Conference. On August 27th 1907, the Japan had made the Korean Prince by force, to receive the throne to be a new Emperor. The faked coronation had been proceed, employing two eunuchs, one acting as Emperor Kojong abdicating the throne, the other acting as Emperor Sunjong receiving the abdicated imperial throne, in place of the two stubbornly boycotting real actors. Reviewing from the view of the rule of customary public international law of the throne factorial at that time, the Emperor ’ s crown and his sovereign power cannot, without his consent, be transferred to another; he cannot forfeit it. So, the Emperor Sunjong nominated and crowned by the brutal force of Japanese Empire was nothing but a puppet Emperor, and should be naturally denied as a valid crown of the Korean Empire. Consequently, the 1910 Japan-Korea Annexation Treaty concluded between Japanese Emperor and the Emperor Sunjong, was nothing but a fake pactum agreed only by the Japanese Empire, by herself. So even without scrutinizing those detailed faults of the treaty in view of the law of treaty, such as lack of the Korean Emperor ’ s signature on the instrument of ratification, or some procedural defects in issuing the full powers, this annexation treaty cannot be deemed as has ever been concluded and existent as an international legal agreement. As a matter of a historical fact, however, the Japanese Empire had controlled and ruled the Korean peninsula as her colonial territories for about 26 years, from the date of Jan 21st 1919 when the Korean Emperor Kojong was assassinated with the poisoned morning drink prepared by the Japanese controlled court ladies until the day of Japan ’ s surrender to the Allied Forces of the Pacific War in August 15th 1945. 1n view of the rule of international law, the Japanese control upon the Korean territories during these 26 years could only been precisely defined as a belligerent occupation. No sovereign title or any legally valid title had ever been entitled to Japan, by this belligerent occupation. So, when the subjection by the Japanese warlords ended, the liberated Korea had immediately resumed the national liberty and the proud cultural heritage. Any vestiges of Japanese control over to the Korean territories should have been eliminated completely, and at once. Removing Japanese warlords from the Korean territory was the only condition for the attainment of national control over to the entire territories, in the part of Korean nation. Any denouncements of the Japanese titles to the Korean territories were never ever necessary for the liberation of the free and independent nation, Korea, because any such titles were legally never been formed. Contrary to the obvious historical facts and the plain international legal corollary, Japan has insisted that the 1910 Japan-Korea Annexation Treaty was validly made and entered into force. Utilizing this false logic as a basic legal ground, Japan has further asserted that every concrete denouncement of the Japanese title to the Korean territories is necessary for Koreans to resume its sovereign titles. Such false legal corollary and the ambiguous prescriptions of Article 2 in the 1951 San Francisco Peace Treaty, a notoriously distorted peace treaty, have been logical basis for Japanese assertions of the sovereign title to the Liancourt Rocks, the Dokdo Island. As a matter of a fact, Korea has maintained an impeccable effective occupation upon the Liancourt Rocks, the Dokdo Island ever since General MacArthur, the Supreme Commander of the Allied Forces, ordered to expel the Japanese seizure of the Island, right after the Instrument of the Japanese Unconditional Surrender had been signed, on September 2nd 1945. The overwhelming comprehension prevailing among international society that the 1910 Japan-Korea Annexation Treaty was validly made and entered into force, could eventually be resumed to a straightforward position, only if Korea develops sincere and candid explanation. To do this, however, above all, a clear and manifest legal corollary should be established by the Korean circle of international lawyers among themselves, explaining in legal terms the invalidity of the 1910 Japan-Korea Annexation Treaty, which is, as far as this writer ’ s concerned scrutinizing has concluded, not accomplished yet. More over, some troubled provisions, like Article 2 of the 1965 Treaty on Basic Relations between Korea-Japan, soon or later, could be a formidable obstacle to do this. 1n conclusion, this matter of the Liancourt Rocks, the Dokdo 1sland dispute between Korea and Japan has a fatal connection with the profound and basic historical and legal comprehension; how much do you see the Japanese colonial control over to the Korean territories has some legal justifications, in the passed centuries.

1. 왜 독도 영유권 문제의 해결을 위해 한 • 일간 과거사에 관한
법적 인식을 논의해야 하는가?
2. 한· 일간 과거사에 관한 일본 측 법적 인식의 변화 추의의 경
과와현황
3. ‘ 1910년 한일병합조약’의 효력에 관한 법적 논의의 문제점
(1) 한 · 일간 과거사에 관한 법적 정론을 세워야 한다.
(2) ‘ 1910년 한일병합조약’의 효력에 관한 법적 논의의 문제점
1) ‘ 1910년 한일병합조약’의 효력에 관한 한국 학자들의 주장
2) 조약 체결 과정에서 행사된 강박 행위가 조약에 미치는 효력에
관한 ‘이분법적 볍리’
3) 한국 학자들의 법적 견해에 대한 평가
(3) ‘ 1910년 한일병합조약’의 효력에 관한 한국 측 법적 혼돈의 현황
1) ‘ 1965년 한일기본관계조약’상의 문제
2) 대한민국의 국가적 계속성에 관한 혼돈
3) 일본 측이 인용하고 있는 한국 측의 허점
4. 결론

• 김영구(麗海冊究所所長)