The Eulsa Treaty (第二次日韓協約)

The Eulsa Treaty (Dai-niji Nikkan Kyoyaku [Second Japan-Korean Treaty]) is an agreement concluded between the Empire of Japan and the Korean Empire on November 17, 1905, after the Russo-Japanese War ended. This treaty allowed the Empire of Japan to deprive the Korean Empire of its diplomatic right, making Korea in effect Japan's protect state. It is also referred to Isshi Hogo Joyaku (the Eulsa Protective Treaty) or Kankoku Hogo Joyaku (the Convention for the Protection of Korea).

The Japanese representative was Gonsuke HAYASHI, the Envoy Extraordinary; and the Korean representative Che-Soon PARK, the Foreign Minister.

Details

Although Japan was in the position to take part in Korean finance and diplomacy due to the conclusion of the First Japan-Korea Treaty in 1904 during the Russo-Japanese War, she decided to conclude this treaty in order to required the Korean Empire, who had lost trust from Japan, to take more reliable actions, because Japan had been approved of the priority rights over Korea by Russia due to the Treaty of Portsmouth (September 5, 1905), the peace treaty of the Russo-Japanese War, and also because it became a problem that Gao Zong (King of Korea) had sent a secret agent to other countries to show his discontent with the First Japan-Korea Treaty.

In 1907, after the conclusion of the treaty, the dispatch of the secret agent who carried a personal letter of Gao Zong (King of Korea) that insisted on invalidity of the treaty was exposed (the Hague Secret Emissary Affair). The personal letter in the affair is an official written document which insisted on invalidity of the treaty. After all, the dispatch of the secret agent became a problem and Gao Zong, blamed by Wan-yong LEE and others, had to give Sunjong his position as the emperor, which led to signing of the Japan-Korea Annexation Treaty (Third Japan-Korea Treaty).

Full text

The Governments of Japan and Corea, desiring to strengthen the principle of solidarity which unites the two Empires, have with that object in view agreed upon and concluded the following stipulations to serve until the moment arrives when it is recognized that Corea has attained national strength: -

ARTICLE I. The Government of Japan, through the Department of Foreign Affairs at Tokyo, will hereafter have control and direction of the external relations and affairs of Corea, and the diplomatic and consular representatives of Japan will have the charge of the subjects and interests of Corea in foreign countries.

ARTICLE II. The Government of Japan undertake to see to the execution of the treaties actually existing between Corea and other Powers, and the Government of Corea engage not to conclude hereafter any act or engagement having an international character except through the medium of the Government of Japan.

ARTICLE III. The government of Japan shall be represented at the Court of His Majesty the Emperor of Corea by a Resident General, who shall reside at Seoul, primarily for the purpose of taking charge of and directing matters relating to diplomatic affairs; He shall have the right of private and personal audience of His Majesty the Emperor of Corea; The Japanese Government shall also have the right to station Residents at the several open ports and such other places in Corea as they may deem necessary; Such Residents shall, under the direction of the Resident General, exercise the powers and functions hitherto appertaining to Japanese Consuls in Corea and shall perform such duties as may be necessary in order to carry into full effect the provisions of this Agreement.

ARTICLE IV. The stipulations of all Treaties and Agreements existing between Japan and Corea, not inconsistent with the provisions of this Agreement, shall continue in force.

ARTICLE V. The Government of Japan undertake to maintain the welfare and dignity of the Imperial House of Corea.

In faith whereof, the Undersigned duly authorized by their Governments have signed this Agreement and affixed their seals.

HAYASHI GONSUKE, Envoy Extraordinary and Minister Plenipotentiary, the 17th day of the 11th month of the 38th year of Meiji.

PAK CHE-SOON, Minister of State for Foreign Affairs, the 17th day of the 11th month of the 9th year of Kwang-Mu.

Contents

ARTICLE I: The Government of Japan, through the Department of Foreign Affairs, will hereafter have control and direction of the external relations and affairs of Korea, and the diplomatic and consular representatives of Japan will have the charge of the subjects and interests of Korea in foreign countries.

ARTICLE II: The Government of Japan undertake to see to the execution of the treaties actually existing between Korea and other Powers, and the Government of Korea engage not to conclude hereafter any act or engagement except through the medium of the Government of Japan.

ARTICLE III: The government of Japan shall be represented at the Court of His Majesty the Emperor of Korea by a Resident General. He shall reside at Seoul, primarily for the purpose of taking charge of and directing matters relating to diplomatic affairs, and have the right of private and personal audience of His Majesty the Emperor of Korea. The Japanese Government shall also have the right to station Residents at the several open ports and such other places in Korea. Such Residents shall, under the direction of the Resident General, exercise the powers and functions hitherto appertaining to Japanese Consuls in Korea and shall perform such duties as may be necessary in order to carry into full effect the provisions of this Agreement.

ARTICLE IV: The stipulations of all Treaties and Agreements existing between Japan and Korea, not inconsistent with the provisions of this Agreement, shall continue in force.

ARTICLE V: The Government of Japan undertake to maintain the welfare and dignity of the Imperial House of Korea.

Views of invalidity

This treaty as well as other treaties was confirmed to be already null and void, according to the Article II of the Treaty on Basic Relations between Japan and the Republic of Korea concluded in 1965. Japan and Korea have different interpretations of this view. In Japan it has been considered to become invalid after the conclusion of the treaty of 1965. On the other hand, the government of the Republic of Korea has taken the position that the Treaty of Japanese Annexation of Korea was invalid from the beginning (it had not come into force since the time of the conclusion). Because of these arguments, there exists a claim in the Republic of Korea and the Democratic People's Republic of Korea that the treaty was already invalid in the first place at the stage of 1905, when it was concluded, i.e. it did not come into force from the beginning. With this as an assumption, there also exits some power who insists that the Treaty of Japanese Annexation of Korea has been invalid.

First, admitting that compulsory signing due to a threat against an individual who represents a state is invalid in the norm of the international common law in those days, there is a position to repulse the views of invalidity on the ground that historical data related to this treaty on compulsion and a threat against the individual (Emperor Gao Zong [King of Korea]) are insufficient. And there is a position to present some doubts whether the international law at that time could offer a standard to distinguish the compulsory effect on a state from the compulsory effect on an individual.

There is also a claim from the position in which they think that in 1905 there were no norms or regulations in the international common law which could invalidate a conclusion of a treaty based on compulsion against a state. It was since the Treaty of Versailles of 1919 that settling of international issues by force has been seen as a problem under a normative influence of international law, and it was after the beginning of the United Nations Charter of 1945 that threatening against a state was forbidden – those are realities of functional operation of the norm of the international law at that time.

Under these circumstances, the interpretation that the treaty with Japan who actually ruled the Korean Peninsula at that time was invalid is regarded as 'legally non-retroactive' interpretation in Japan and among the advocates of validity and/or legality.

On the other hand, many of the arguments which insist this treaty and the treaty of the Japan-Korea Annexation Treaty are invalid mention following reasons.

The treaty was a treaty in which the signing was forced under threat.

Approval of the Korean emperor was missing in the treaty.

Many of the advocates of invalidity think it is invalid because compulsion and a threat were imposed both on the state (The Korean Empire) and the individual (Emperor Gao Zong [Korean King]). Since those days, the compulsory signing had been thought separately divided into a threat against a state and compulsion against an individual who represents the state.

In international law, rather than at the point whether there was also a threat against an individual or there was only a pressure against a state, at the point whether people recognize or not that norms or regulations in the international common law which invalidates conclusion of treaties under threat could exist at the time of 1905, arguments and positions have been separated to the highest degree.

In the conference of the academic project 'Review of "the Annexation of Korea" in history and international law' held at Harvard University in the USA (State of Massachusetts) in 2001, British researchers and others insisted on its validity and legality, which has not allowed views of invalidity and/or illegality to become generally acceptable. However, in Asia other than Korea and African areas, a movement to see this kind of treaty as 'invalid and/or illegal' is rising.