남북한 통일 시 조약 승계 문제 처리 試論 (The International Legal Issues of Treaty Succession in case of Korean Unification)

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 41권 / 3호 / 233 ~ 265페이지
· 저자명 : 이성덕

초록

In case of the Korean Unification, we may encounter many international legal issues. This paper reviews one of the significant international legal issues, the succession of treaties concluded by ROK and DPRK (North Korea) by the Unified Korea. The issue of succession of treaties in international law is very problematic, although in 1978 the Convention on Succession of States in respect of Treaties (1978 Convention) was adopted under the auspices of the UN. Even before the Convention was adopted, States have shown different positions regarding the succession of States in respect of treaties. Many African newly independent States took an unilateral stance regarding succession of treaties concluded by the colonial powers. The typical examples are the Tanganyika and Zambia cases. And also, even after the conclusion of the 1978 Convention, the States do not give full support to the Convention. Thus, it is not easy to give definite answer to the issue of succession of treaties in case of the Korean Unification. In general, the types of State succession influence the result of succession of treaties. For example, the State succession may occur in cases of Newly Independent States, succession of part of a State territory, uniting of States and division of a States, in each case, the succession of treaties may differ. Thus, in case of Korean Unification, the scope of succession of treaties certainly depends on the type of Unification. If, after the Unification, a new State appears, then, the types of succession will be ‘uniting of States’. In this case, the issue of succession of treaties concluded by ROK and DPRK may arise equally. However, if the Unification takes the form of absorption or incorporation of DPRK into ROK, the issue of succession of treaties concluded by DPRK may arise. In this case, the German example may be a good guidance to Korean Unification. As for the treaties which were concluded by ROK may extended to the area which has been governed by DPRK based on the principle of moving treaty frontier. And as for the treaties which were concluded by DPRK, it would be the best way for DPRK to arrange them whether to succeed or not with the other parties before the Korean Unification is effected.

영어초록

In case of the Korean Unification, we may encounter many international legal issues. This paper reviews one of the significant international legal issues, the succession of treaties concluded by ROK and DPRK (North Korea) by the Unified Korea. The issue of succession of treaties in international law is very problematic, although in 1978 the Convention on Succession of States in respect of Treaties (1978 Convention) was adopted under the auspices of the UN. Even before the Convention was adopted, States have shown different positions regarding the succession of States in respect of treaties. Many African newly independent States took an unilateral stance regarding succession of treaties concluded by the colonial powers. The typical examples are the Tanganyika and Zambia cases. And also, even after the conclusion of the 1978 Convention, the States do not give full support to the Convention. Thus, it is not easy to give definite answer to the issue of succession of treaties in case of the Korean Unification. In general, the types of State succession influence the result of succession of treaties. For example, the State succession may occur in cases of Newly Independent States, succession of part of a State territory, uniting of States and division of a States, in each case, the succession of treaties may differ. Thus, in case of Korean Unification, the scope of succession of treaties certainly depends on the type of Unification. If, after the Unification, a new State appears, then, the types of succession will be ‘uniting of States’. In this case, the issue of succession of treaties concluded by ROK and DPRK may arise equally. However, if the Unification takes the form of absorption or incorporation of DPRK into ROK, the issue of succession of treaties concluded by DPRK may arise. In this case, the German example may be a good guidance to Korean Unification. As for the treaties which were concluded by ROK may extended to the area which has been governed by DPRK based on the principle of moving treaty frontier. And as for the treaties which were concluded by DPRK, it would be the best way for DPRK to arrange them whether to succeed or not with the other parties before the Korean Unification is effected.

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