The continuing annexation

Why and how Korea's 1910 union with Japan goes on

By William Wetherall

First posted 25 June 2007
Last updated 1 January 2010

The legacy of the 1910 annexation treaty

Writers on the history of Korea-Japan relations are likely to view Japan's annexation of the Empire of Korea in 1910 as "null and void". In the eyes of the governments of the Republic of Korea (ROK) and the Democratic People's Republic of Korea (DPRK), these treaties are not only "null and void" but are regarded as having been illegal and therefore without efficacy.

However, the impacts of the annexation treaty on Korea as Chosen from 1910 are still being felt today, a century later. The impacts take a number of forms -- legal, political, and demographic.

Legally

The 1910 treaty had actual effects from 1910 to 1945, during which time the Chosen peninsula was not only under Japan's rule but part it its sovereign territory. The treaty continued to have virtual or residual efficacy during the Allied occupations of all territories of the Empire of Japan from 1945 until 1952, when the effects of the San Francisco Peace Treaty formally confirmed Japan's abandonment of all claims to "Korea" (English version) meaning "Chosen" (Japanese version).

In this sense, the legal effects of the treaty are now a matter of history, raisable only in a court of law that agrees to review an issue that originated or occured between 1910-1945 or 1945-1952. However, ROK definiately and DPRK presumably do not recognize the legality of the 1910 treaty and are apt to disregard its effects, both in the eyes of Japanese law then and now, and in the eyes of Allied Power law during the occupation, dismantling, and disposition of the Empire of Japan following the Pacific War.

Politically

The 1910 treaty's effects were reflected in the absence of a Korean state on the world's stage from 1910 to 1948. For purposes of international law, the treaty and related imperial ordinances ended the existence of "Korea" as a state and created "Chosen" as an integral part of Japan's sovereign territory. "Koreans" became "Chosense" territorially and "Japanese" nationally. The Allied Powers vowed to liberate "Korea" as they called Chosen and eventually restore the former country to its status as an independent state. Militarily, and in effect also politically, Chosen was divided into two occupation zones, south and north of the 38th parallel. The "South Korea" (Minanmi Chosen) zone was occupied by the United States. The "North Korea" (Kita Chosen) zone was occupied by the Soviet Union.

In 1948, a state claiming to be "Korea" was created in each of the zones -- the Republic of Korea (ROK) in the south, and the Democratic People's Republic of Korea (DPRK) in the north. The United Nations recognized only ROK in an act of what I call "recognition politics"

Similar recognition politics divided the Allied Powers and the United Nations over the recognition of the Republic of China (ROC) -- a member of the Allied Powers and a founding member of the United Nations -- when, in 1949, the People's Republic of China was founded, the People's Liberation Army drove the ROC government into exile on Taiwan, and PRC claimed to be "China".

DPRK invaded ROK with the intent of reunifying the peninsula in 1950. The two states agreed to a cease fire and armistice in 1953. While claiming the same territory, both were simultaneously admitted to the United Nations in 1991. Their relationship has somewhat improved but continues to be more hostile than friendly. The border imposed by the conditions of their birth under foreign occupation continues to be essentially closed and militarized. And in 2009, DPRK announced that it no longer considered the terms of the 1953 armistice agreement binding.

Demographically

Migrations of people in greater East Asia and the Pacific after the Pacific War left Occupied Japan with about 600,000 Chosenese, representing mostly people who, between 1910 and 1045, had freely migrated from Chosen to the prefectural Interior that became Occupied Japan. Not a few of these Chosenese had been born in the Interior, and some had been born between Chosen and Interior subjects. There had been a number of legal and common-law marriages between Chosen and Interior subjects.

Interior family register laws required that both spouses be in the same register and share the same family name. The inter-terriotiral "Common Law" also required that one spouse migrate to the register of the other spouse, which resulted in the migrating spouse changing his or her territorial status. Hence a number of Chosenese were former Interior subjects who became Chosen subjects through marriage, and some Interiorites were former Chosen subjects who became Interior subjects through marriage. All, however, were subjects of Japan, hence Japanese by nationality.

The Allied Powers, represented in Occupied Japan by the Supreme Commander for the Allied Powers (SCAP), and his General Headquarters (GHQ), regarded Chosenese or "Koreans" as "non-Japanese" for repatriation, border-control, and alien-registration purposes, but their nationionality remained Japanese, and would remain Japanese until suitable treaties determined otherwise. These terms were civil, not racial or racioethnic. They referred strictly to nationality and territoriality as civil register statuses.

The dual-status of Chonsese (and also Taiwanese) in Occupied Japan has been one of the most difficult realities for students of the period to understand, and most academic reports fail to properly grasp what was really a very simple matter of multiple and situational statuses. There was absolutely no contradition between being "non-Japanese" for certain legal purposes and "Japanese" for others. Afterall, "Japanese" was a purely civil status, and as such it is subject to nuancing for all manner of civil -- i.e., legal -- purposes. This is done all the time in all complex legal societies, including the United States.

The postwar "residual" population survivies in Japan today in the form of older people were were part of the origian 1945 cohort, and lineal descendants born Occupied Japan (1945-1952) or Post-Occupation Japan (1952 to present). Had this population continued to grow naturally, it would be at least twice the original 600,000 today. Instead, as of this writing (2015), it is fewer than 400,000 and rapidly diminishing. Practically all are categorically Special Permanent Residents, a civil status that positions them between general aliens and Japanese.

The SPA status is legally linked to the San Francisco Peace Treaty of 1952. It is not based on any foreign nationality but only on loss of Japanese nationality in 1952. It is held by around 50 different nationalities of aliens, practically all ROK nationals or Chosenese (the two are conflated in relevant statistics). Many nationals of other countries that reside in Japan as SPRs are former ROK nationals or Chosenese. ROC and PRC nationals together constitute the second largest group of SPR status holders. For a while they were conflated but since 2012 they have been separately reported.

The total "Korean/Chosenese" alien cohort in Japan now hovers below 600,000. It is a very complex cohort representing at least the following broad status categories.

A rapidly decreasing number of SPR Koreans and Chosenese representing the 1945 residual population. These people are often called "old comers" despite the fact that most did not "come" from the peninsula but were born in the prefectures, often to prefectural-born parents.
A very small and decreasing population of Koreans and Chosenese who legally or illegally entered Japan during the Occupation years (1945-1952) or the years immediately following the Occupation (1950s). While these people don't qualify for SPR status, they are socially equivalent to the SPR population;
A slowly increasing number of ROK nationals who have been migrating to and settling in Japan since the 1980s or so. These people are more properly called "new comers", but the metaphor breaks down in the case of the Japan-born children of such Koreans who marry each other in Japan.
A few DPRK natonality holders who have been admitted to Japan for mostly humanitarian reasons.

SPR Chosenese include a number of subcategories.

A few Chosenese view their status as what it is -- a living relic of the former Chosen register status, a purely peninsular status having nothing to do with the postwar division of the peninsula. Most such Chosenese are holding out for unification, but a few may be protesting their loss of Japanese nationality in hopes that they might someday be given the choice they feel they should have been given in 1952.
A number of Chosenese claim to have DPRK nationality on the basis of documents obtained through a DPRK legation outside Japan. Japan, however, does not recognize their claims, since Japan has not yet concluded a basic treaty or status agreement with DPRK. By the same principle, Japan will not denaturalize a Japanese national who claims to have acquired DPRK nationality, for in Japan's eyes that would leave the person stateless.
The few aliens Japan has admitted directly from DPRK, or more likely from DPRK via a third country, such as PRC, while categorically different from Koreans and Chonsense, are conflated under "Korea/Chosen" nationality in alien and emigration/immigration statistics. Some immigration data shows "Kita Chosen" as a category but this is a misnomer for the broader category of "Chosen", which conflates Chosenese and bona fide "Kita Chosen" (DPRK) aliens. Some immigration data, however, specifically shows breakdowns of visa statuses of DPRK entrants exclusive of categorial "Kankoku/Chosen" entrants.

There are, of course, an increasing number of Japanese who were once Chosenese, or once ROK, or once even DPRK nationals. If the legally objective civil standard of labeling based on nationality were shifted to a subjective standard based on personal qualities such as territorial or racioethnic ancestry, there are all manner of people in Japan of one or another nationality whose family roots are in both the Japanese islands and on the Korean peninsula.

The annexation of Korea as Chosen also left demographic footprints in other parts of East, Northeast, and Central Asia, particularly in the former Manchurian region of the People's Republic of China (PRC), but also in CIS states such as Kazakhstan, Uzbekistan, and Russia. The United States and other countries were also destinies of Chosenese migration during the annexation.

These and a number of other realities of history and current events are proof of the legal efficacy of the annexation in the past, as well as testimony to its living legacy today.

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1910 annexation to 1952 peace treaty

The annexation treaty, and the treaties leading up to annexation, existed. They were, at the time, internationally recognized. The annexation continued to be recognized, internationally, in 1945 at the end of World War II, hence the need to formally undo its effects in stages, beginning with the general Instrument of Surrender in 1945, then the San Francisco Peace Treaty in 1952, then the ROK-Japan normalization treaty in 1965. Japan has yet to conclude a normalization treaty with DRPK.

Moreover, the treaties continue to have legal standing in Japanese courts when considering legacy issues -- i.e., matters that recquire judgments of the effects of laws, including treaties, that are no longer in effect. Such legacy issues have included, most importantly, confirmations of the nationality persons whose family histories go back to periods of time during which they or their ancestors were subject to older laws, possibly in jurisditions that no longer exist except historically.

"Chosen" as a Japanese territory no longer exists as a legal entity. And "Chosenese", its territorial affiliates, no longer exist as Japanese subjects or nationals. However, both "Chosen" and "Chosenese" exist in the eyes of Japanese courts that consider legacy issues.

Both also also exist by virtue of the fact that in 1948, in what had been Korea (Chosen), two Korean states were established, both of which have claimed to be the rightful successor of the Empire of Korea, and only one of which has established normal relations with Japan. Yet ROK and DPRK have not normalized their own relationship. Rather they continue to confront each other at the boundary drawn in 1945 by the Allied Powers at the end of World War II. A civil war that began in 1950 ended in 1953 in a state of truce that continues unrsolved six decades later.

See Korea becomes Chosen: The road to annexation and the first decade of nationalization for treaties and commentary before and after the 1910 annexation, spanning the 1876 Japan-Chosen amity treaty to the 1 March 1919 movement.

See Declarations and treaties: From Washington to San Francisco via the USS Missouri for the principal declarations and treaties from the 1942 United Nations (Allied) declaration of war against Japan, to the 1952 San Francisco Peace treaty.

1965 ROK-Japan normalization treaty

According to the normalization treaty between the Republic of Korea and Japan in 1965, the two states agreed that all treaties signed between the Empire of Korea and the Empire of Japan on or before 22 August 1910 were "already null and void" in the wording of the English version.

The 1965 treaty -- done in Korean, Japanese, and English -- provides that "the English text shall prevail" should there be "any divergence of interpretation" of the treaty. There are, in fact, no linguistic grounds for divergence in meaning between the Korean and Japanese versions, or between these versions and the English version. Both the Korean and Japanese versions confirm that the treaties signed before the annexation were "already without efficacy" -- which means that they were null and void at some point before 1965 (see Japan-ROK normalization treaty).

As to when they became null and void, and why, we have only to refer to the San Francisco Peace Treaty -- which confirmed Japan's formal loss of Korea (Chosen) and Formosa (Taiwan), among other some other territories, as part of its sovereign dominion, as of 28 April 1952. The 1952 peace treaty is referred to in the 1965 treaty as one of two foundations for Japan's recognition, in the 1965 treaty, that ROK was the only lawful government of Korea.

The 1965 treaty stops short of ceding Korea (Chosen) to ROK, for Japan had already abandoned all claims to Korea (Chosen), and hence no longer had the authority to cede the territory to anyone. Japan agreed to lose its sovereignty over Korea (Chosen) when it accepted the terms of the Potsdam Declaration and signed the general Instrument of Surrender in 1945, though its loss of sovereignty would have to be confirmed by a treaty with the Allied Powers, which turned out to be the 1952 peace treaty. Hence the 1965 treaty between Japan and ROK, in referring to the 1952 peace treaty, implies the effect of the 1952 treaty was to ceded Korea (Chosen) away from Japan.

The other legal referred to in the 1965 treaty, as a foundation for its most important provision, was Resolution 195 (III), adopted on 12 December 1948 by the General Assembly of the United Nations, which held that ROK was the only government in Korea to have been legally established by elections reflecting the free will of the people in the area where it had effective control and jurisdiction. On the basis of this resolution, Japan, by then a member of the United Nations, formally confirmed that that "the Government of the Republic of Korea is the only lawful Government in Korea" (Article III).

The Japanese version says "Chōsen" -- signifying the Japanese entity that implicity became the Republic of Korea in 1948. The ROK version says "Han pando" (Han peninsula) -- using the principle character for Korea in both the name of Empire of Korea and in its own name. DPRK would have spoken of "Chosŏ pando" (Chosŏ peninsula), using the name of Korea for much of its history before the founding of the Empire of Korea in 1897, which again became the name of the territory as part of Japan from 1910.

An agreement between ROK and Japan concerning the treatment of ROK nationals in Japan, signed together with the normalization treaty but not effective until 1966, took 15 August 1945 as the day from which Chosenese in the prefectures of Japan as of this date -- who had remained in postwar Japan, and who had migrated to ROK nationality, and their Japan-born descendants -- would qualify for special treatment under the laws of both countries, including permanent residence in Japan. The treaty did not effect otherwise qualified people who had remained Chosenese or who had migrated to a nationality other than ROK.

15 August 1945 was the day Hirohito had formally ordered Japan's military forces to cease fire, pursuant to his acceptance on 14 August 1945 of the Potsdam Declaration, which had demanded Japan's unconditional surrender. 15 August 1945 continues, in ROK, to be celebrated as Independence Day. However, for the purpose of determining legal statuses in Japan related to the Potsdam Declaration and the San Francisco Peace Treaty, the primary date for reckoning residence in Japan's prefectures of Chosenese and Taiwanese after World War II is now taken to be 2 September 1945, the day Japan signed the general Instrument of Surrender.

Japan legally lost control of and jurisdiction over parts of Korea (Chosen) the moment its commanders complied with General Order No. 1. In this Japanese government order, previously drafted by the Allied Powers, after negotiations with Japan, the Imperial General Headquarters ordered senior Army and Navy commanders in specific areas to surrender in those areas to specific Allied commanders acting on behalf of the United States, the Republic of China, the United Kingdom and the British Empire, and the Union of Soviet Socialist Republics.

The halves of the Korean peninsula (Chosen) north and south of the 38th parallel were not formally surrendered to Soveit and US commanders representing the Allied Powers until later in September 1945. And ROK and DPRK were not established in the US and Soviet occupation zones until respectively 15 August and 9 September 1948.

ROK and DPRK claimed to be the legimate governments of the entire peninsula and all its affiliated people. Political realities were, of course, different. The two self-styled states had jurisdiction only over the parts of the peninsula they actually controlled. And they did not become states in the eyes of other states that declined to recongize them as states.

1952 ROC-Japan peace treaty

The Republic of China (ROC) and Japan signed a peace treaty in Taipei, on Taiwan, on 28 April 1952, the day the San Francisco Peace Treaty came into effect. The ROC-Japan treaty also referred to the San Francisco Peace Treaty as its legal foundation, since the San Francisco treaty had confimred Japan's abandonment of its claim to Formosa (Taiwan).

The 1952 ROC-Japan treaty included a declaration in which the two states "recognised that all treaties, conventions, and agreements concluded before 9 December 1941 between Japan and China have become null and void as a consequence of the war" (Article IV).

9 December 1941 marked the day -- on the East Asian side of the International Date Line, the day after Japan had attacked Pearl Harbor and other places -- on which ROC had declared war on Japan in concert with declarations of war by the United States and other countries. ROC's declaration of war stated that all treaties with Japan were abrogated. Declarations of war generally have the effect of cancelling treaties.

Japan, which had recognized the National Government of Wang Ching-wei in Nanking (PY Nanjing) in 1940, had never considered itself at war with China. After the ROC government of Chiang Kai-shek took refuge in Chungking (PY Chongqing), Japan regarded it as a renegade entity and formed an alliance with the government that emerged in its place.

The 1952 Taipei treaty says nothing about the status of agreements between Japan and Wang Ching-wei's government. Notes exchanged at the time the treaty was signed, however, dealt with "property, rights or interests in Japan" related to "collaborationist regimes" created after the "so-called Mukden incident" of 18 September 1931, including "Manchukuo" and the "Wang Ching Wei regime".

The 1952 Taipei treaty, done in Japanese, Chinese, and English, also provides that, "In case of any divergence of interpretation, the English text shall prevail." Where the English version has "have become null and void", the Japanese version reflects "have become without effect" and the Chinese version reflects "will revert to not having effect" (see Japan-ROC Peace Treaty).

Of some interest here is that a declaration concerning the annexation of Korea, issued on 29 August 1910 when the annexation treaty came into effect, uses a "null-and-void" expression in Japanese that is based on the same Chinese expression used in the 1952 ROC-Japan peace treaty. The object of the nullification was the treaties Korea had made with other states before its treaty of annexation with Japan. In their place, the treaties the other states had concluded with Japan would apply as far as application was possible to Chosen (see 1910 annexation treaty, 1910 name change ordinance, and 1910 declaration).

"Null-and-void" statments are boilerplate in all manner of treaties that seek to replace older agreements with newer agreements.

1952 notification concerning loss of nationality

To be continued.

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