통일 후 한-중 국경 문제에 관한 국제법적 고찰

In some quarters of Korea, the (potential) territorial claim of Korea over the Gando area (presently under the effective administration and control of China) has been hotly discussed. Such discussion is founded on the nullity of the 1909 convention on the Gando area concluded between Qing China and Japan whereby the former's territorial sovereignty over the area was recognized. This agreement is claimed to be null and void because Japan was not in a position to dispose of Korean sovereignty over the region ('Nemo dat quod non habet'). In this article, I have tried to look into the question of arguably superior importance that has been somewhat neglected up to now, ie, the opposability vel non of the 1962 and 1964 agreements between North Korea and China on boundaries between them. In so doing, I discussed (i) North Korean conceptions on territory, boundary and the 1909 convention, (ii) the 'legislative history' of Articles 11 and 12 of the 1978 Vienna Convention on Succession of States in Respect of Treaties, (iii) international jurisprudence and state practice on succession in respect of boundaries and other territorial régimes, and (iv) the relationship between positive international law on the issue and the Gando question. My investigation has shown that current international law accords an overwhelming importance to the 'fundamental principle of the stability of boundaries', as was expressed in the 1994 Territorial Dispute case. If one applies this conclusion to the question at hand, there is a high probability that the boundaries established by the implementation of the 1962 and 1964 agreements would be subject to 'automatic succession' even vis-à-vis unified Korea. This highlights the need for an objective and in-depth analysis of the relevant rules and principles of international law from a new perspective.