The Case of the Wrong Seal: Was Korea Legally Annexed by Japan?

by Julian Ku

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State Seal of South Korea

Just in time for the 100th anniversary of the Korea-Japan Annexation treaty, a Korean scholar has new evidence that the treaty was never properly ratified by the Korean king. Hence, according to the scholar, the 1910 annexation treaty was never legal and Japan’s annexation of Korea was illegal (or at least not authorized by a treaty). (The current state seal of South Korea is shown here).

Lee Tae-jin, professor emeritus at Seoul National University, released historical documents that show the century-old annexation pact was void because Korea’s proclamation of the treaty lacked the nation’s state seal.

According to Lee, the original copy of the Korean proclamation contained only King Sunjong’s private seal, which was used solely for administrative approval. The Korean edict lacked his signature and the required state seal

In contrast, the Japanese edict of the treaty had Japan’s state seal and the signature of Emperor Meiji, who signed it with his personal name Mutsuhito.

Even assuming the Korean scholar is right about the wrong seal, it is not obvious to me that the entire treaty is invalid. It sounds like from the article that the wrong seal is on the Korean proclamation of the treaty, but not on the treaty itself.  This makes it seem like the ratification of the treaty may have been separately done (and according to Wikipedia, it was done by the Korean Prime Minister under the authority of Korea’s king). Or maybe the proclamations were the ratification instruments?

And even if it the wrong seal was used on the ratification, I am not sure the treaty is invalid.  Of course I don’t know what the law of treaties was in 1910, but let’s assume the law is similar to what the Vienna Convention on the Law of Treaties is today.  Under the VCLT Art. 11, “The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.” A seal may or may not be required for consent, but it seems that it would depend on the treaty itself.  I know that the U.S. has always used seals on treaty ratifications, but I wonder if its absence would necessarily negate the treaty ratification if, say, the President signed the treaty himself.  But maybe someone who has actually seen treaties ratified (Duncan?) could enlighten me here.

In any event, it is far less obvious that the annexation of Korea by Japan was “illegal” even without the treaty.  Conquest was, I believe, perfectly legal in 1910.  Still, it is fascinating that even today, this rather obscure legal point remains a point of huge contention between Japan and Korea.

http://opiniojuris.org/2010/08/11/the-case-of-the-wrong-seal-was-korea-legally-annexed-by-japan/

3 Responses

  1. So, I’m supposed to be on vacation, but Julian (as usual) makes sure I can’t stay away.  The U.S. does regularly use an official seal in its treaty-making practice.  But, I’ve never thought that the failure to stamp the seal on an instrument of ratification would void that instrument.  On the contrary, I’d always understood (and now suggest to my students) that the failure to seal a treaty document is a paradigmatic example of a domestic rule that falls short of the manifest violation of a rule of fundamental importance necesary to invoke VCLT Art. 46.  That said, in 1910, formality was a bit (well, OK, a lot) more important.  So, I’m not sure what impact the use of an improper seal would have on this annexation treaty.  I’m interested to hear what others think. 

  2. As an avid reader/subscriber to OL, I would like to thank Professor Ku for his intriguing post, as always. I think Prof.Ku has a valid point in discussing what Prof.Lee Tae-jin said about the seal. This kind of discussion always makes us think harder about what it means to apply international law to the history. Anyways, let me make some incoherent and unorganized observations on some other aspects of this issue. (For a full disclosure, I am a Korean, and work for the Korean government, but this comment is entirely in my personal capacity, of course.) 

    First, Peof.Lee is a renowned historian in Korea, but he is not a lawyer, so when he says the seal problem made the 1910 treaty void, I think what he actully meant was to add one more evidence to the common-sensical statement that the forced annexation/occupation of Korea by Japan was simply wrong and unjustified – and messy – for so many reasons. I don’t think Prof.Lee was applying the law of treaty to explain his discovery. (And I see Prof.Ku perfectly understands this point). Those who are a little bit familiar with modern Korean history say that the 1910 treaty, along with many other treaties imposed by Japan on helpless, defenseless Koreans in early 20th century, was just a sly cover for what Japan actully did to Koreans in its pursuit of kind of imperialist ambitions with threat and violence in many parts of Asia – which I guess eventually resulted in the attack on Pearl Harbor. As we all know, focusing on certain technical aspect of a historical conduct – whether it is a treaty making, or annexation itself – may run the risk of losing (or being misunderstood to lose) the big picture that would enable sound, comprehensive legal assessment.

    Secondly, I think I heard that there is some convincing argument that the 1910 treaty was still legally null and void for some rules in effect even at that time – including a rule invalidiating a treaty the consent to which was procured by the coercion of representatives. I might be wrong here because I have never studied this area in depth myself, but anyways many historians say the 1910 treaty was the product of threat and manipulation against the officials of the then-Korean government. So, I think we should look at this and other related aspects as well to fully debate the validity vel non of this treaty and the annexaction. 

    By the way, let me share an interesting story (?) about this 1910 treaty: many people in Korea understandably destest this treaty so much that a high-level government official was actually seriously chastised a few years ago by the lawmakers and the media when, in one of the Congressional hearings, he called this treaty a “treaty (Jo-yak)”. Obviously, you were supposed to use some other “correct word” in Korean, which roughly translates into “an agreement forced against one’s will (Neuk-yak)”. I personally find this story quite fascinating because it may be one of those examples showing how international legal discourse could intersect – or interact – with political conceptions in certain societal and linguistic settings. I just wish I had some real insight to make this into a publishable law review article!! 

  3. Oops, typo – I meant I am an avid reader/subscriber to OJ. Sorry.

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