대만정부와의 외교관계단절(1992) 이후 한국-대만 간 조약관계에 관한 고찰

Abstract

The Korean Government withdrew its recognition of the Taipei Government as the legitimate representative of China and gave it to the Beijing Government on 24 August 1992. A number of international legal questions ensued after the Korean Government followed the policy that had been adopted by most other major government of the world. One of them was the legal impact of "de-recognizing" the Taipei Government on the treaty relations between Korea and Taiwan. On 24 August 1992, Korea had 12 treaties with Taiwan. It was plain that the 1964 Treaty of Amity between Korea and Taiwan would lapse with the "switching" of recognition from the Taipei to the Beijing Government. However, it was not clear whether agreements on air transport or maritime transport would meet the same fate. This article purports to delve into this thorny question by focusing on the legal impact of the "de-recognition" on the 1986 Air Transport Agreement between the Government of the Republic of Korea and the Government of the Republic of China. In so doing, it conducts a critical analysis of the two judgements handed down by the Seoul Administrative Court in September 2005. The main arguments of the article are as follows. First, the diplomatic event that took place on 24 August 1992 should be categorized as a "switching" or "transfer" of recognition from one government to another rather than as a withdrawal of state recognition which would imply the disappearance of Taiwan as a subject of international law. Second, even after the "de-recognition" the Taipei authorities retained a (restricted) international legal personality as an established de facto government. This means that it is entitled to maintain its treaties or agreements that are compatible with its (restricted) international personality. Third, in connection with the specific question on hand, ie, whether the 1986 Agreement on Air Transport was terminated with the withdrawal of recognition from the Taipei Government, the answer should be found in the relevant practice of both parties. On the basis of an in-depth and extensive analysis of the practice of Korea and Taiwan, it is concluded that the agreement was not terminated on 24 August 1992, maintaining its legal effect on a provisional basis until its replacement by a "civilian" agreement concluded on 1 September 2004. Fourth, the 2004 agreement retains a high degree of continuity with the 1986 agreement. Notwithstanding the argument to the contrary put forth by the Korean Government and some scholars, it is argued, the change in the status of contracting parties from the governmental to the civilian has not substantially affected the substantive and, in most respects, even formal continuity between the two agreements.