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Peace and Unification in Korea and International Law

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Peace and Unification in Korea and International Law OccAsioNAl PApERS/ REpRiNTS SERiES iN CoNTEMpORARY AsiAN STudiEs NUMBER 2 - 1986 (73) PEACE AND UNIFICATION 6• IN KOREA AND INTERNATIONAL LAW •' Byung-Hwa Lyou ScltoolofLAw UNivERSiTy of 0 •• c!:. MARyLANd 0 0 ' Occasional Papers/Reprint Series in Contemporary Asian Studies General Editor: Hungdah Chiu Executive Editors: Mitchell A. Silk and Jaw-ling Joanne Chang Managing Editor: Chih-Yu Wu Editorial Advisory Board Professor Robert A. Scalapino, University of California at Berkeley Professor Martin Wilbur, Columbia University Professor Gaston J. Sigur, George Washington University Professor Shao-chuan Leng, University of Virginia Professor James Hsiung, New York University Dr. Lih-wu Han, Political Science Association of the Republic of China Professor J. S. Prybyla, The Pennsylvania State University Professor Toshio Sawada, Sophia University, Japan Professor Gottfried-Karl Kindermann, Center for International Politics, University of Munich, Federal Republic of Germany Professor Choon-ho Park, International Legal Studies Korea University, Republic of Korea Published with the cooperatio!l of the Maryland International Law Society All contributions (in English only) and communications should be sent to Professor Hungdah Chiu, University of Maryland School of Law, 500 West Baltimore Street, Baltimore, Maryland 21201 USA. All publications in this series reflect only the views of the authors. While the editor accepts responsibility for the selection of materials to be published, the individual author is responsible for statements of facts and expressions of opinion con­ tained therein. Subscription is US $15.00 for 6 issues (regardless of the price of individual issues) in the United States and Canada and $20.00 for overseas. Check should be addressed to OPRSCAS and sent to Professor Hungdah Chiu. Price for single copy of this issue: US $8.00 © 1986 by Occasional Papers/Reprint Series in Contemporary Asian Studies, Inc. ISSN 0730.0107 ISBN 0-942182-75-8 PEACE AND UNIFICATION IN KOREA AND INTERNATIONAL LAW Lyou, Byung-Hwa* TABLE OF CONTENTS Page PREFACE.................................................. Vll CHAPTER ONE. THE KOREAN ARMISTICE AGREEMENT AND INTERNATIONAL LAW.............. 1 SECTION A. CONCLUSION OF THE KOREAN ARMISTICE AGREEMENT . 1 1. Negotiations between the United Nations Command and the Communist Side . 1 2. Negotiations between the United States and South Korea.......................................... 14 SECTION B. THE POLITICAL CONFERENCE IN ACCORDANCE WITH ARTICLE 4 OF THE KOREAN ARMISTICE AGREEMENT......................... 24 1. Negotiations at Panmunjom . 24 2. The Geneva Political Conference . 27 SECTION C. LEGAL PROBLEMS OF THE KOREAN ARMISTICE AGREEMENT . 36 1. Special Character of an Armistice Agreement in General . 36 a. Definition . 36 b. Special Character. 38 2. The Korean Armistice Agreement . 41 a. The Framework of the Korean Armistice Agreement . 41 b. Particularities of the Korean Armistice Agreement . 42 3. Legal Parties to the Korean Armistice Agreement. 45 a. Superficial Parties to the Korean Armistice . 45 • Professor of Law, Korea University, Seoul 132, Korea 1. The Signature and the Conclusion of an Armistice Agreement . 45 u. The United Nations Side................ 47 m. The Communist Side . 49 b. South Korea and the Korean Armistice Agreement . 53 1. The Necessity of South Korea to be a J ,r_gal Party to the Korean Armistice Agreement . 54 (a) South Korea is a Principal Belligerent . 54 (b) South Korea as the Host Country . 55 (c) South Korean Legitimacy........... 56 ii. Legal Foundations Supporting South Korea as a Legal Party to the Korean Armistice Agreement . 58 (a) Legal Analysis of the Relations Between the United Nations Command and the South Korean Armed Forces. 58 (b) A Coalition Army and the Conclusion of an Armistice Agreement......................... 61 (c) The Signature of the Commander-in­ Chief of the United Nations Command and South Korea as a Legal Party to the Armistice . 63 (d) Practices . 66 m. South Korean Participation in the Operation of the Military Armistice Commission . 66 1v. South-North Korean Dialogue . 67 v. Withdrawal of Foreign Forces from Korea.................................. 67 CHAPTER TWO. THE DISSOLUTION OF THE UNITED NATIONS COMMAND AND INTERNATIONAL LEGAL MECHANISMS FOR PEACE IN THE KOREAN PENINSULA . 69 SECTION A. STRUCTURAL CHANGE OF THE UNITED NATIONS AND THE INTERNATIONAL POLITICAL SITUATION SURROUNDING KOREA................................ 69 1. Decolonization and the New Situation in the United Nations . 69 2. The People's Republic of China's Entrance in the United Nations . 70 3. Sino-American Rapprochement.................. 72 4. South-North Korean Dialogue................... 73 5. North Korea's New Attitude Toward the United Nations......................................... 76 SECTION B. LEGAL PROBLEMS SURROUNDING THE DISSOLUTION OF THE UNITED NATIONS COMMAND................ 77 1. The Dissolution of the UNCURK and Its Legal Implication . 78 a. The Function of the UNCURK . 78 b. The Dissolution of the UNCURK . 79 c. The Legal Implication of the Dissolution . 81 2. The Two Contradictory Korean Resolutions of the United Nations General Assembly in November 1975................................. 81 a. Background . 81 b. Resolution 3390A (the South Korean Position) . 83 i. Content . 83 ii. Legal Interpretation of the South Korean Position . 83 c. Resolution 3390B . 85 i. Content . 85 ii. Legal Interpretation of the North Korean Position . 85 d. Adoption of the Two Contradictory Resolutions . 87 3. The Withdrawal of United Nations Forces and the Actual Situation of the United Nations Command...................................... 88 a. The Withdrawal of United Nations Forces . 88 b. The Actual Situation of the United Nations Command ..... .1............................. 89 SECTION C. INTERNATIONAL LEGAL MECHANISMS OF PEACE IN KOREA WITHOUT THE UNITED NATIONS COMMAND............................ 90 1. The Legal Significance of the Dissolution of the United Nations Command: Three Contending Opinions . 90 a. Opinion 1: Extinction of One Party to the Korean Armistice Agreement . 91 b. Opinion 2: The Disappearance of an Essential Organ for Implementing the Armistice Agreement . 92 c. Opinion 3: The Quasi-Withdrawal of the United Nations as a Party to the Korean Armistice Agreement . 93 2. Parties to the Korean Armistice Agreement After the Dissolution of the United Nations Command. 94 a. The General Problem . 94 b. The Relationship Between the United Nations and the United States. 95 3. The Implementation of the Korean Armistice Agreement After the Dissolution of the United Nations Command . 96 a. The Validity of the Armistice Agreement . 96 b. The Operation of the Military Armistice Commission................................. 97 CHAPTER THREE. THE UNIFICATION OF KOREA AND INTERNATIONAL LAW . 99 SECTION A. THE UNIFICATION POLICIES OF SOUTH AND NORTH KOREA........ 99 1. South Korea . 99 a. President Rhee (1950s) . 99 b. President Park and Beyond . 102 2. North Korea . 105 a. North Korean Proposals for Unification . 106 b. An Analysis of North Korean Proposals . 107 1. The Main Points of North Korean Proposals. 107 ii. The Objective of North Korean Proposals. 110 SECTION B. VARIOUS FACTS RELATING TO KOREAN UNIFICATION............. 111 1. The Neighboring Countries and Korean Unification . 111 a. The United States . 112 b. The Soviet Union. 115 c. China . 117 d. Japan . 120 2. The Sino-Soviet Conflict and the Sino-American Rapprochement................................. 121 a. The Sino-Soviet Conflict . 121 b. The Sino-American Rapprochement.......... 123 3. The National Strength of South and North Korea.......................................... 125 a. Economic Strength . 125 i. South Korea . 125 ii. North Korea . 126 b. Population, Territory and Military Strength . 128 i. South Korea ........... :. 128 ii. North Korea . 129 c. A Brief Comparison of the National Strength Between South and North Korea............. 132 1. Population and Area of Territory . 132 u. GNP................................... 132 iii. Trade . 133 iv. A Table of Comparison . 133 4. The Special Environment of a Closed North Korean Society . 135 a. Collective and Controlled Society . 136 b. The Personality Cult of Kim 11-Sung . 138 SECTION C. THE LEGAL STATUS OF A DIVIDED KOREA AND THE SOVEREIGN RIGHT FOR UNIFICATION . 140 1. The Legal Status of a Divided Korea . 141 a. The Artificiality of the Korean Division and the Military Character of the Demarcation Line . 141 b. The Legal Status of South and North Korea. 143 c. The Legal Interpretation of South-North Korean Relations............................ 145 2. The Sovereign Right for Unification by Self­ Determination . 147 SECTION D. POSSIBLE MEANS TO ACHIEVE KOREAN UNIFICATION............. 149 1. The Prerequisites for Korean Unification . 149 a. The Achievement of Economic Maturity . 149 b. A Strong But Democratic Government . 150 c. Persuasion of Neighboring Countries . 151 d. A Social Change of North Korea . 153 e. Favorable Situations for Korean Unification . 154 2. How Can Korean Unification Be Achieved?...... 154 a. Internal Aspects . 154 1. Predominant National Strength . 154 11. National Unity and Support for Unification . 154 iii. Consolidation of a Strong But Democratic Government................ 155 iv. Reorganization of the National Defense System................................. 156 v. South Korea's Dominant Role in the Korean Question and the Reduced Role of the United States..................... 157 b. External Aspects . 157 1. Assurance of Non-Intervention of External Powers . 157 11. Assurance That Neighboring Countries Will Not Supply Nuclear Weapons on the Korean Peninsula ....................... 158 m. Long-term Foreign Policy for Unification: One Korea Policy . 158 c. The Aspect of South-North Korean Relations . 159 1. Active Measures for Social Change in North Korea . 159 11. The Desirable Direction for the South- North Korean Dialogue................. 160 APPENDIXES . ..
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