한반도 종전선언과 평화체제 수립의 국제법적 함의

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 Bushs 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...