A Declaration of the End of the Korean War and the Establishment of a Peace Regime - Their International Legal Implications

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...이 논문은 서울대학교 법학발전재단 출연 법학연구소 기금의 2008학년도 학술연구비 의 보조를 받았음