무주지 선점론에 대한 비판적 고찰

A Critical Take on Occupation: Focusing on the Late 19th-Century and Early 20th-Century International Law

The legal concept of occupation may need to be reconsidered if it is seen from a critical-historical approach. Previous studies of occupation seemed to have assumed the legality of occupation in the late 19th century. However, there are critical question that seems to be dealt with if the historicity of occupation is considered. When was occupation established as a legal rule? What about the standard of terra nullius? How was the concept of terra nullius accepted by the 19th-century international lawyers? What if the legal rule of occupation was influenced and contaminated by the civilization discourse? Unlike general presumption, the non-inhabitancy condition may not be a criterion for terra nullius for the 19th-century international lawyers. These issues compel us to consider the legal rule of the occupation itself critically. This paper does not attempt to settle the issue in concern with the final answer. Rather, it attempts to provide further research questions to delve into by considering the contextual complexity of the then international society and classical international law. This paper argues that it is difficult to uncritically accept the classical international legal rule of occupation. The paper demonstrated that the legal rule of occupation seems to have been somewhat established in the late imperial 19th century, even when it was introduced earlier by scholars. Moreover, it was pointed out that the concept of terra nullius presented by scholars such as Oppenheim, Lawrence, Hall, and Westlake is problematic: the legal status of the owner of the territory seemed to have mattered more without considering the inhabitancy of the territory. For Lawrence and Westlake, the question of civilization was the standard which permitted occupation. In other words, uncivilized nations were at risk in facing the possibility of being the object of occupation. However, it has been pointed out that such legal rule of occupation cannot be accepted without critical considerations. First, it is questionable whether or not the legal scholars agreed on the content of the rule of occupation especially in relation to the civilization in the late 19th century. It is difficult to argue that there was established rules of law to guide actions. Second, as noted by ICJ in Western Sahara, Advisory Opinion, the territorial acquisition was implemented by treaties rather than occupation when there were inhabitants in the particular territory. According to ICJ, the term occupation was used more as rhetoric. This paper demonstrates that there are critical questions that need to answered before accepting the classical international rule of occupation.