남북합의서의 법적 성격과 실효적 이행방안

Abstract

If Inter-Korean Agreements are regarded as a treaty, it would bring legal binding force to the parties. Conversely, if considered as a gentleman’s agreement (or an MOU), it would solely entail political responsibility. The enactment of the Development of Inter-Korean Relations Act and judgements made by the judiciary branch partially settled such controversy, but it did not terminate it wholly. Such controversy has been extended to whether the Inter-Korean Agreements concluded under article 23 of the Devlopment of Inter-Korean Relations Act can be legally binding in international law, namely, whether it can be regarded as a treaty or not. To resolve such disputes, under the motives that Inter-Korean relations must progress, this paper discusses the legal characteristics and status of the Inter-Korean Agreements to seek its effective application, Prior to determining the legal nature of the Inter-Korean Agreements, the legal status of North Korea has been preemptively discussed. Is North Korea an independent state? Or is it an anti-state organization? Analysis was carried out from three perspectives; a domestic view, under the Constitution of the Republic of Korea, a bilateral view (between the two Koreas), under the Inter-Korean Basic Agreement, and an international view, under the United Nations Charter and it’s practices. Such analysis concluded that whatever status North Korea can be interpreted in, its eligibility as a party can be denied in neither a treaty nor an Inter-Korean Agreement. In addition, the procedural requisites for the effective application of the Inter-Korean agreement are identical to those required to legalizing international treaties under domestic law. Treaties, after the signature of parties, are followed by domestic procedures; ratification, deliberation of the state council, approval of the National Assembly, promulgation. The procedures for the effectiveness of Inter-Korean Agreements are in accordance, or at least in conformity. Such analysis were examined according to Oppenheim’s five conditions of treaties; Do the parties of the treaties enjoy the ability to sign treaties? Did a legitimate person sign the treaty? Was a flawless agreement concluded between the representatives appointed by each parties? Are the contents of the treaty feasible and legal? Were certain procedures for the effectiveness of treaties carried out? Ultimately, this paper reached that the legal nature of Inter-Korean Agreements as a treaty cannot be denied. For improved transparency and legitimacy of inter-Korean relations and North Korean policies, parliamentary ratification, materializing the scope of the legal status of the inter-Korean agreements under article 23 of the Development for Inter-Korean Relations Act, registering the agreements to the United Nations, and devising dispute resolution measures have been suggested and examined in this paper.