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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서울대학교 법학연구소
법학, Vol.49 No2 pp.164-192
종전선언평화조약정전협정남북기본합의서2+4조약declaration of the end of warthe Korean Wararmistice agreementthe Basic Agreement between North and South Korea2+4 Treaty
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...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 49, Number 1/4 (2008)
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