한반도 종전선언의 법적 쟁점과 과제

The declaration to end the Korean War is being proceeded as a political declaration due to the inertial sense of national security from the South Korea-U.S. alliance point of view to maintain security on the Korean Peninsula. As a result, the end-of-war declaration will not be a treaty under international law even when it is contracted in the form of documentation signed by the heads of the parties of the Korean War. This is a result of the reflection of the subjective intention of the parties of the declaration as to provide grounds for a political justification to accelerate the discussion on the opening and closing of the current cold-war legal system, while controlling the rapid change in the security environment that might have been induced by a legal end-of-war declaration and maintaining the interests and vested rights of the neighboring countries with regard to the Korean Peninsula. Albeit political, the end-of-war declaration should be accompanied with follow-up measures, such as the termination of the Korean War that has not been legally terminated, the dissolution of the Korean Armistice Agreement System, and the fundamental improvement of the cold-war legislations in South and North Korea, in compliance with the principles of good faith once the end-of-war agreement between the parties is formulated. When the end-of-war declaration is realized, an agreement on the systems that will replace the MDL, DMZ, the Military Armistice Commission, and the Neutral Nations Supervisory Commission created by the Korean Armistice Agreement on the premise of the existence of a war. At the same time, the establishment of a new Korean Peninsula peace organization at the UN level should be discussed to guarantee security in the Korean Peninsula and Northeast Asia after the dissolution of the UN Command which was established on the basis of the Korean War, as the grounds for the political and military legitimacy of it will be extinguished, as well. The legislative system also needs to be improved in North and South Korea. South Korea, especially, would need to improve the laws including the National Security Act and the North Korean Refugees Protection and Settlement Support Act which were enacted by considering North Korea as an anti-government organization as opposed to a state. In light of this, the political end-of-war declaration reflecting the suigeneris characteristics of the Korean issue is meaningful in that it is a form of jus post bellum that serves as soft law in the grey zone during the transitional period from laws of war to laws of peace. The Korean War is very unique in that North and South Korea both strive for reunification as state entities and that there is no winner or loser in the war. The end-of-war declaration should aim for the formation of a peacea greement system that contains the conclusion of the “Agreement on the Final and Peaceful Resolution of the Korean Problems(tentative title)” as a creative measure that promotes a transition to the next step through the end-of-the war as to maintain the existing orders and peace rather than to restore the order suprior to the war. The declaration to end the Korea War is the document of a political agreement that aims to draw up the legal documents which regulate the negative peace step in the Korean peace process. Also as a platform for the negotiation to induce legal documents of a greement to form a peace agreement system, the declaration bears uniqueness that it will be distinguished when a stable Korean peace agreement system is established. To North and South Korea, the end-of-war declaration is the last stop of the irrational and anachronistic cold war system and the starting point of a new peace process. From a Northeast Asian perspective, the declaration will serve as a catalyst that reorganizes the San Francisco Peace Treaty system which is ideological and splits Asia. The declaration will also lead to the review of the establishment of a new peace organization that can guarantee sustainable peace in the Korean Peninsula and Northeast Asia. In this process, the parties of the end-of-war declaration should look for creative methods for the formation of a peace system based on the principle of trust and fairness.