한일기본관계조약의 국제법적 문제점에 관한 재검토

International Legal Problems of the Treaty on Basic Relations between the Republic of Korea and Japan, Revisited

"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.