탈냉전기 평화협정 관행을 통해 본 한반도 평화협정에의 시사점

Since the adoption of the Armistice Agreement in 1953, the Korean Peace Treaty was one of the most controversial issues in the legal scholarship of Korea. Many scholars, based upon the traditional international law perspective, made issues such as parties of the treaty, recognition of state followed by the treaty, legality of United Nations Command, and required contents of the treaty. In particular, the issue of legitimate parties for the Korean Peace Treaty has been the heart of the debate because South Korea, one of four major parties participated in the Korean War, was not a signaturing party of the Armistice Agreement of the War. This seemingly weak status of South Korea was the major concern of Korean scholars, and, in practice, the North Korea tried to take advantage of it from time to time. However, since the end of the World War II and after the end of the Cold War considerably, state practice regarding the peace treaty has shown different track that most Korean scholars overlooked. The typical type of the peace treaty, signed by conflicting parties for the purpose of ending the conflict, is becoming outdated. Instead, one politically oriented idea came into the process to make the peace treaty: how to build the peaceful co-existence after the conflict. Thus, the question on legitimate parties of the peace treaty is not as significant as before. In many cases, any party which has two options were welcomed to the peace treaty. The two options were: the intention to become the party and the capacity to make considerable contribution for the peaceful co-existence of conflicting parties. This was the case in the Final Act of the Paris Conference on Cambodia in 1991, General Framework Agreement for Peace in Bosnia and Herzegovina in 1995, Good Friday Agreement (between North and South Ireland) in 1998, etc. Further, states even avoided making an official peace treaty by using another name or type of the treaty. For example, the Treaty on the Final Settlement with Respect to Germany in 1990 contained all provisions that a peace treaty requires, but did not declared as the one because of it's legal complexities in such a case. More than not, states favored practical methods to end the conflict and to build post conflict rehabilitation. Accordingly, South Korea does not have to pay too much attention on the parties for the peace treaty. Without the contribution of South Korea, other parties cannot collect enough fund to attract North Korea. All other complicated issues can also be solved in the same practical way. Former legalistic approach should be enhanced by strategic thinking to figure out the best way for peaceful Korean Peninsula.