조약과 법적 구속력 없는 합의 간 차이에 대한 고찰

The Panmunjom Declaration, the Declaration for the Termination of the Korean War and the Comfort Women Agreement between Korea and Japan should be regarded as political agreements rather than legally binding treaties. Nevertheless, considerable controversy has arisen, ignoring the legal character of these agreements. It could be difficult to distinguish between treaties and non-legally binding agreements. The reason for this is that, in some cases, the ‘intent’ of the parties as to whether the agreement in question has to be regarded as either a treaty or a political agreement is unclear. Even after reviewing the major cases in which the issue of whether or not an agreement is a legally binding one was raised, it is still difficult to lay down criteria or factors to distinguish a treaty from a political agreement. While the key criterion or factor is the intent of the parties, it is highly likely that the intent would rarely be expressed. Therefore, the form(or title), the terms(or expressions) and the circumstances surrounding the adoption of an agreement are the criteria or factors that international courts and tribunals do not want to overlook in determining whether the agreement is a treaty or a political agreement. In particular, the circumstances in which the agreement in question was concluded have been recognized as a meaningful criterion or factor in finding out the intent of the parties. However, it is not easy to set any other key criterion or factor except for the intent of the parties. This means that the legal nature of an agreement has to be determined on a case-by-case basis.