한반도 종전선언과 평화체제 수립의 국제법적 함의
A Declaration of the End of the Korean War and the Establishment of a Peace Regime － Their International Legal Implications －
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This article attempts to address the question of establishing a peace regime on the Korean peninsula from an international law perspective. In Korea and beyond, a heated debate is being conducted on how to articulate “a permanent peace regime on the Korean Peninsula” (the expression used in the September 19, 2005 Agreement on a Joint Statement). This debate gained an added urgency with the President Bush’s mention (November 2006) of the declaration of the end of the Korean War as a possible step to the resolution of the North Korean nuclear crisis. This article deals with the following questions. First, the implicit premise of the current debate is that the state of war still obtains on the Korean Peninsula. To use the popular expression often found in the mass media, the Peninsula is “technically still at war”. In this article, it is argued that the premise could be mistaken from the vantage point of international law. According to a powerful doctrine gaining increasing currency in the post-1945 period, the state of war can be brought to an end by a general armistice such as the 1953 Korean Armistice. Such a conclusion signifies that a declaration of the end of the Korean War will have a declaratory or confirmatory effect only, not having the effect of terminating the war ex nunc. Next, I have tried to inject a healthy dose of skepticism into the conventional wisdom that a “classical” peace treaty is a sine-qua-non to the establishment of a peace regime on the Korean Peninsula. In this connection, one needs to revisit the German experience in the process of its unification. In the negotiations for German unification, the former Soviet Union argued that a peace conference be convened for the conclusion of a peace treaty and this position was supported by France and the United Kingdom. The Federal Republic of Germany (then West Germany) objected to this proposal because, among others, it would entail Germany having to deal with more than 40 states which had declared war on the Third Reich. It is generally agreed that the so-called ‘2+4 Treaty’ is a final peace settlement for Germany. This experience clearly shows that in reaching final closure to an armed conflict which ended a long time ago, the “classical” avenue of peace treaty is not only not indispensable, but could prove counterproductive. As for the content of the proposed peace treaty, a substantial portion of it overlaps with the content of the 1991 Inter-Korean Basic Agreement. Under the circumstances, the confirmation of acquis inter-coréen (ie, the agreements achieved up to now in inter-Korean relations) backed up by the endorsement and guarantee by the relevant powers such as the United States of America and the People’s Republic of China could be tantamount to a functional equivalent of peace treaty. In this article, I have tried to expand the epistemological horizon of the current debate on the peace regime on the Korean peninsula. In particular, I stressed the need to avoid the theoretical inertia or psychological trap of regarding “classical” peace treaty as a sine-qua-non to the establishment of peace in Korea.
Abstract
This article attempts to address the question of establishing a peace regime on the Korean peninsula from an international law perspective. In Korea and beyond, a heated debate is being conducted on how to articulate “a permanent peace regime on the Korean Peninsula” (the expression used in the September 19, 2005 Agreement on a Joint Statement). This debate gained an added urgency with the President Bush’s mention (November 2006) of the declaration of the end of the Korean War as a possible step to the resolution of the North Korean nuclear crisis. This article deals with the following questions. First, the implicit premise of the current debate is that the state of war still obtains on the Korean Peninsula. To use the popular expression often found in the mass media, the Peninsula is “technically still at war”. In this article, it is argued that the premise could be mistaken from the vantage point of international law. According to a powerful doctrine gaining increasing currency in the post-1945 period, the state of war can be brought to an end by a general armistice such as the 1953 Korean Armistice. Such a conclusion signifies that a declaration of the end of the Korean War will have a declaratory or confirmatory effect only, not having the effect of terminating the war ex nunc. Next, I have tried to inject a healthy dose of skepticism into the conventional wisdom that a “classical” peace treaty is a sine-qua-non to the establishment of a peace regime on the Korean Peninsula. In this connection, one needs to revisit the German experience in the process of its unification. In the negotiations for German unification, the former Soviet Union argued that a peace conference be convened for the conclusion of a peace treaty and this position was supported by France and the United Kingdom. The Federal Republic of Germany (then West Germany) objected to this proposal because, among others, it would entail Germany having to deal with more than 40 states which had declared war on the Third Reich. It is generally agreed that the so-called ‘2+4 Treaty’ is a final peace settlement for Germany. This experience clearly shows that in reaching final closure to an armed conflict which ended a long time ago, the “classical” avenue of peace treaty is not only not indispensable, but could prove counterproductive. As for the content of the proposed peace treaty, a substantial portion of it overlaps with the content of the 1991 Inter-Korean Basic Agreement. Under the circumstances, the confirmation of acquis inter-coréen (ie, the agreements achieved up to now in inter-Korean relations) backed up by the endorsement and guarantee by the relevant powers such as the United States of America and the People’s Republic of China could be tantamount to a functional equivalent of peace treaty. In this article, I have tried to expand the epistemological horizon of the current debate on the peace regime on the Korean peninsula. In particular, I stressed the need to avoid the theoretical inertia or psychological trap of regarding “classical” peace treaty as a sine-qua-non to the establishment of peace in Korea.
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