근대 국제법상 ‘반주권 국가’에 대한 비판적 고찰: 휘튼(Henry Wheaton)의 법리를 중심으로

초록

This study critically examines the concept of “semi-sovereign states” within nineteenth-century international law, focusing on Henry Wheaton’s Elements of International Law. Although the term “semi-sovereignty” is rarely used in contemporary international legal scholarship, it played a significant role in the political and legal discourse of late nineteenth-century East Asia. Wheaton’s treatment of suzerainty under the entry of “semi-sovereignty” has remained a source of conceptual confusion, raising the question of whether a state could simultaneously be semi-sovereign and sovereign. The paper first traces the origins and meaning of semi-sovereignty, noting that Wheaton defined such entities as states dependent on others for the exercise of external sovereignty. Drawing a distinction between internal sovereignty (a matter of constitutional law) and external sovereignty (a matter of international law), Wheaton concluded that semi-sovereign states lacked full international legal personality. This doctrinal framework was absent from seventeenth- and eighteenth-century natural law theorists, suggesting that Wheaton’s approach reflected the emerging influence of legal positivism, particularly that of German jurists such as Moser and Martens. However, Wheaton’s treatment of semi-sovereignty suffers from serious theoretical flaws. He conflated limitations on legal capacity with deficiencies of legal personality and failed to provide a coherent analytical basis distinguishing protectorates, tributary states, colonies, and confederations. As later noted by T. J. Lawrence, these categories possess distinct legal characteristics that should not be subsumed under a single heading. Furthermore, Wheaton’s reliance on the U.S. Supreme Court’s 1831 decision on the Cherokee Nation—describing it as a “domestic dependent nation”—illustrates how semi-sovereignty served American policy interests in justifying both federal arrangements and territorial expansion. This paper argues that Wheaton’s doctrine of semi-sovereignty, though historically influential, lacked legal consistency and was already being challenged by the late nineteenth century. The study concludes that applying such a politically motivated and theoretically unstable concept without critical reflection risks distorting both the historical and normative understanding of sovereignty in international law.

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