1905 treaty and historical task

By Doh See-hwan

This year marks the 117th anniversary of the Japan-Korea Treaty of 1905, the substantial starting point of Japanese colonial rule, which was the essential cause of the historical conflict between Korea and Japan, and the attempted distortion of legalizing Japan's colonial rule under international law at the time.

In 2005, 100 years after the signing of the Japan-Korea Treaty of 1905, Japan declared "Takeshima Day" through Shimane Prefecture, commemorating the annexation of Korea's easternmost Dokdo islets in 1905.

It was not only an indication that efforts for historical reconciliation between Korea and Japan would drift apart in the future, but ironically, finding the essential causes of the historical conflict between Korea and Japan and looking for ways to overcome it became a historical task and a calling for justice.

Since the end of the 19th century, Japan has been striving to secure international legal grounds as a device to glorify and legalize its imperialist methods of annexation, which are the basis of Japanese colonial rule.

It was embodied in a series of treaties forced by Japan to gain sovereignty over Korea in the process of forced annexation, and it went through five steps: the Korea-Japan Protocol, the First Korea-Japan Agreement, the Second Korea-Japan Agreement (Japan-Korea Treaty of 1905), the Third Korea-Japan Agreement (Japan-Korea Treaty of 1907) and the Korea-Japan Annexation Treaty (Japan-Korea Treaty of 1910).

The reason why we discuss the international legal effect of the Japan-Korea Treaty of 1905 as an important legal issue lies in the Japanese government's denial of its responsibility for its illegal colonial rule on the premise that the 1910 forced Annexation Treaty was legal under international law based on the 1905 treaty.

Therefore, it is essential and important to prove the illegality and invalidity of the Japan-Korea Treaty of 1905 as the starting point for debunking the legitimacy of the forced annexation of Korea as claimed by the Japanese government.

It is worth noting that despite the fact that Ahn Jung-geun, a pioneer who preached peace in East Asia against Japanese militarism and imperialist aggression, pointed out that it was the most serious of the 15 crimes that prompted his 1909 assassination of Ito Hirobumi, the leader of Korea during Japan's colonial rule, that the trial by Japanese imperialists, which sentenced Ahn to death under the Japanese Penal Code in 1910, is based on Article 1 of the 1905 Treaty.

Moreover, in February 1992, the U.N. Human Rights Commission asked about the Japanese government's legal responsibility for forcibly mobilizing women on the Korean Peninsula into sex slavery, as victims of Japanese colonial rule caused by the Japan-Korea Treaty of 1905.

And the Japanese Territorial Sovereignty Exhibition Hall, which reopened in 2020, claims that both the annexation of Dokdo in 1905 and Japan-Korea Treaty of 1905 are legal under international law.

In other words, the deep-rooted invasion of Japanese colonialism on our sovereignty, human rights, and territory is still ongoing, and the Japan-Korea Treaty of 1905 is positioned as the common denominator and as a prerequisite for East Asian peace.

In addition to the deficiency of ratification as a requirement for the international legal establishment of the 1905 treaty and the deficiency of the validity requirements resulting from coercion of the national representative, the Japanese government argues that it was legal under international law at the time of the signing of the Japan-Korea Treaty of 1905.

However, even though it tried to establish international legal requirements in order to conceal the coercion on the national representative, the treaty that did not include the commission of full powers and the ratification of the head of state was invalid under international law at that time.

It is worth noting that the Japanese international law community, which is building the basis for the Japanese government's claim to "legalization of colonial rule," is silent about international legal norms based on "freedom of will of national representative" and "equality of sovereign state." This can be evaluated as nothing more than an illegal basis for the implementation of Japanese legal positivism as extreme nationalism associated with invasive state practice.

Moreover, regarding the representative case of the invalid treaty due to the coercion of the national representative of the draft of the Harvard Law School at the time of the League of Nations in 1935, which was reaffirmed in the process of legalization of the Treaty Law Convention of the United Nations International Law Commission in 1963, it should be noted that it presents three cases: the Treaty of Partition through the Siege of the Polish Parliament by the Russian Army in 1773, the Forced Protectorate Treaty in 1905 and the Protectorate Treaty through the Siege of Haiti by the U.S. Army in 1915.

Nevertheless, the Japanese government's historical distortion frame that puts international law at the fore under the policy stance of "breaking away from the post-war regime" for revising Japan's peace constitution and "historical revisionism" for the distortion of past history, which goes against the establishment of the foundation for a peace community in East Asia.

Thus, the claims made by the Japanese government, such as "the legitimate theory of 1910 colonization," "the completion theory of the 1965 Korea-Japan agreement" and "the incorporation theory of Dokdo of 1905" are nothing but the structured and repeated violence of Japanese colonialism based on the Korea-Japan Treaty of 1905.

Under such a premise, the Joint Statement of 1,139 Korean-Japanese intellectuals who declared the original invalidation of the Korea-Japan Annexation Treaty in 1910 was an East Asian version of the Durban Declaration of 2001, which contained the historical end of colonialism, and it was that we had to seek true historical reconciliation on the basis of correct history.

It is not a matter that is transferred to history unless it is realized by the implementation of international legal justice on the sovereignty, human rights and territory of Korea infringed by Japanese colonialism, but it is a task of the ongoing historical justice and peace community that continues.

Therefore, it should be a starting point for the implementation of positive peace that will realize a true East Asian peace community based on human dignity and oriented toward human co-prosperity starting from 2022, the 117th year of the Korea-Japan Treaty of 1905, in addition to the basic negative peace under international law that presupposes apology and compensation for Japanese colonial rule and war of aggression.

Dr. Doh See-hwan (drdoh@naver.com) is a senior research fellow at the Northeast Asian History Foundation.