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조약(Treaty)은 나라와 나라 사이에 맺은 법적 구속력을 가지는 약속으로 의회를 통해 비준하면 그 국가의 법이 됩니다.
국제조약은 국가와 국제기구가 지키기로 약속한 국제적 합의로 국가간 계약과 같이 서로 약속한 내용을 지키는 법적 준수가 보장되는 국제법 주체들이 국제법 규율 아래 법적 구속력을 받도록 체결한 국제 협정으로, 1969년 조약법에 관한 비엔나 협약에 따르면 조약이란 "단일 또는 둘 이상 관련된 문서에 구현되는지 여부와 그 명칭이 어떠한지에 관계 없이 국가 사이에 서면 형식으로 체결되면서 국제법에 따라 규율되는 국제적 합의로 정의되므로 조약의 명칭이 조약, 협약, 협정, 규약, 규정, 헌장 등으로 다양하게 사용되어도 해당 조약의 효력에 영향을 끼치진 않습니다.
당사국의 수에 따라 다자적(multilateral)인 것과 양자적(bilateral)으로 나누는데, 예를 들어 유엔헌장은 유엔에 가입한 모든 국가에게 규범적 구속력을 갖는 다자적, 한국과 미국 간의 기술협력에 관한 협정은 양자적 국제조약입니다.
아래 조약에 대한 안내를 참고 바랍니다,
Treaties
Treaties are considered the most important source of international law. The Vienna Convention on the Law of Treaties provides in Article 2 that "'treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
Though international organizations and other actors recognized under international law also may conclude treaties, states are generally the main contracting parties to treaties.
Treaties create legal rights and obligations between the contracting parties and therefore are legally binding upon them.
Treaties can have a variety of names, including treaty, agreement, charter, convention, protocol and exchange of notes.
Whether a document is a treaty (which means that it is legally binding) must be decided by taking into account the terms, context and contracting parties, as well as other factors which demonstrate the intention of the parties.
Before concluding a document, the contracting parties must agree on its character, including whether it is a treaty.
The Vienna Convention on the Law of Treaties
The Vienna Convention on the Law of Treaties codified the pre-existing customary international law on treaties, with some necessary gap-filling and clarifications, and provides a useful ground for dealing with a variety of treaty affairs. The Vienna Convention was done on May 23, 1969 and entered into force on January 27, 1980. The Republic of Korea has been a party to the Vienna Convention since its entry into force. Furthermore, the Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations was adopted and opened for signature on March 21, 1986. This second Vienna Convention has yet to come into force.
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Treaty Making by the Republic of Korea
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A treaty is a promise made among subjects of international law and stipulates certain legal rights and obligations. The breach of a treaty is a matter of legal responsibility. The treaty-making process is important in this respect, and can be regarded as the process in which a State makes a legal contract with other States or other subjects of international law. A treaty duly concluded has the same effect as the domestic laws of the Republic of Korea, which the people of Korea have the obligation to observe. Therefore, the Ministry of Foreign Affairs, which controls and coordinates foreign relations, endeavors to reflect and respect national interests when concluding treaties.Domestic Procedure for Treaty MakingTreaties Concluded by the Republic of KoreaEfforts to promote public understanding of Treaty AffairsAgency-to-agency Arrangements
Domestic Procedure for Treaty Making
1. Bilateral Treaty-Making Process
2. Multilateral Treaty-Making Process
1. Bilateral Treaty-Making Process
1) Why the treaty-making process is important
A treaty is a promise made among subjects of international law and stipulates certain legal rights and obligations. The breach of a treaty is a matter of legal responsibility. The treaty-making process is important in this respect, and can be regarded as the process in which a State makes a legal contract with other States or other subjects of international law.
A treaty duly concluded has the same effect as the domestic laws of the Republic of Korea, which the people of Korea have the obligation to observe.
Therefore, the Ministry of Foreign Affairs, which controls and coordinates foreign relations, endeavors to reflect and respect national interests when concluding treaties.
2) How a bilateral treaty is concluded
It is not easy for two countries that have different cultures and legal systems to accommodate their conflicting interests in a legal document. A State which has independent decision-making authority may limit its authority and rights by concluding and implementing a treaty. Therefore, a State has to negotiate carefully with other States and follow the domestic procedures in accordance with its national legislation before it expresses consent to be bound by a treaty.
Korea concludes bilateral treaties in the following manner:
- Decision on the Necessity of a Treaty
First, a decision is made on the necessity of concluding a treaty in a specific area by the ministries in charge of the area at issue.
- Negotiation and Drafting of an Agreed Text
Negotiations, either through meetings, talks, or through diplomatic channels, are held with the other State to reach an agreement on the text draft of the treaty. The appointment and powers of those who, for particular purposes, have the power to negotiate with foreign governments, is carried out in accordance with the Act on the Appointment and Powers of Government Delegates and Special Envoys. Negotiations by a government delegate, that is directed and supervised by the Minister of Foreign Affairs. The Bureau of the Ministry of Foreign Affairs, that is in charge of the negotiations for a particular treaty, prepares a draft text in consultation with the Director-General for Treaties of the Ministry of Foreign Affairs and other ministries concerned. The chief delegate initiates the agreed text after negotiations take place with the other State.
- Beginning of the Domestic Procedure
The bureau that is in charge of the negotiation of a treaty sends the agreed treaty text and the corresponding Korean text to the Director-General for Treaties and requests the Director-General to initiate the domestic procedures for concluding the treaty.
- Review by the Ministry of Government Legislation
All proposed treaties are reviewed by the Ministry of Government Legislation before being sent to the State Council for its deliberation. The Director-General for Treaties reviews the text and the corresponding Korean text, and requests the Ministry of Government Legislation to review the proposed treaty texts. The Ministry notifies the Director-General for Treaties of the review results, including the decision as to whether the treaty should be presented to the National Assembly.
- Deliberation by the State Council
The Director-General for Treaties refers treaties reviewed by the Ministry of Government Legislation to the State Council, in accordance with Article 89, paragraph 3 of the Constitution which stipulates that proposed treaties shall be referred to the State Council for deliberation. Before deliberation by the State Council, proposed treaties are discussed by the Council of Vice Ministers. Customarily, meetings of the Council of Vice Ministers are held every Thursday and meetings of the State Council are held every Tuesday.
- Approval by the President
After the deliberation of the State Council, the agreed treaty text is given the President's constitutional approval. The Director-General for Treaties submits the text for the Foreign Minister's and Prime Minister's countersignatures and the President's approval.
- Signature
Signing Ceremony for the Consular Agreement between Korea and China (Seoul, July 3, 2014)
- According to the Act on the Appointment and Powers of Government Delegates and Special Envoys, the Minister of Foreign Affairs may sign a treaty without requiring full powers issued by the President. Any other person may be appointed as a representative and sign a treaty if he or she possesses a valid instrument of full powers, which is issued by the Minister of Foreign Affairs. However, in the case of signing certain types of treaties, the President, on the recommendation of the Minister of Foreign Affairs, will appoint the representative and issue full powers.
- Consent to the Ratification of the Text by the National Assembly
Article 60, paragraph 1 of the Constitution stipulates that the consent of the National Assembly is required for the ratification of treaties pertaining to mutual assistance or mutual security; treaties concerning major international organizations; treaties of friendship, trade and navigation; treaties pertaining to any restriction of sovereignty; peace treaties; treaties which will burden the State or people with any significant financial obligation; or any treaties of a legislative nature. In such case, the Director-General for Treaties drafts a ratification bill requesting the consent of the National Assembly to the conclusion and ratification of treaties, and the government then submits the bill to the National Assembly.
The requirement for obtaining the consent of the National Assembly means the legislative branch of the government exercises its democratic control over acts of the administrative branch, in accordance with the principle of checks and balances.
- Ratification
For those treaties which require ratification, instruments of ratification shall be exchanged between the parties. Nowadays, many States notify the other State of the completion of domestic procedures, instead of exchanging instruments of ratification when bringing a treaty into force.
- Promulgation
In order to have domestic effect, treaties which were concluded through the above-mentioned process need to be promulgated in the official gazette. The Ministry of Foreign Affairs requests the Ministry of Public Administration and Security to promulgate such treaties. They are listed on the following website;
target=_blank>http://www.gwanbo.korea.go.kr
Separately with this promulgation, the bilateral treaties which enters into force are also listed on the MOFA website (http://www.mofa.go.kr/trade/treatylaw/treatyinformation/bilateral/ind
ex.jsp?menu=m_30_50_40&tabmenu=t_1)
Article 6, paragraph 1 of the Constitution states that treaties duly concluded and promulgated under the Constitution shall have the same effect as the domestic laws of the Republic of Korea.
2. Multilateral Treaty-Making Process
How a multilateral treaty is concluded
- How is a multilateral treaty concluded?
The conclusion of a multilateral treaty is an arduous task that takes more than a few years. Numerous international conferences are held to coordinate conflicting interests of various countries and establish a new set of rules. Joining a multilateral treaty, whether it is a newly adopted treaty or an existing one, means the incorporation of the Contracting State into the legal system in that field.
- Decision on the Necessity of Joining a Multilateral Treaty
First, a decision on the necessity of joining a multilateral treaty is made by the relevant ministries. In case of joining a newly adopted treaty, the Government may send government officials and experts to international conferences to take part in the work of drafting the text of the relevant treaty.
- Beginning of the Domestic Procedure
The Director-General for Treaties initiates the domestic procedure for signing, ratifying, accepting, approving, or acceding to the multilateral treaty. The necessity for the reservation to that treaty will also be decided upon. The Director-General reviews the text of the treaty and prepares the corresponding Korean text in consultation with the relevant government ministries and also provides the necessity of specific legislations related to the treaty.
- Review by the Ministry of Government Legislation
As is the case with bilateral treaties, all proposed multilateral treaties are reviewed by the Ministry of Government Legislation before being sent to the State Council for its deliberation. The Director-General for Treaties requests the Ministry of Government Legislation to review proposed treaty texts. The Ministry of Government Legislation notifies the Treaties Bureau of the review results, including the decision as to whether or not the treaty requires the consent of the National Assembly.
- Deliberation by the State Council
The Director-General for Treaties refers treaties reviewed by the Ministry of Government Legislation to the State Council, in accordance with Article 89, paragraph 3 of the Constitution. Before deliberation by the State Council, proposed treaties are discussed by the Council of Vice Ministers.
- Signature and Approval by the President
After the deliberation by the State Council, the Director-General for Treaties submits the treaty text to the Foreign Minister and Prime Minister for their approval. After that, the text is given the President's constitutional approval for the signature by a representative of the Government or the consent by the National assembly to the ratification of the treaty. In accordance with the Act on the Appointment and Powers of Government Delegates and Special Envoys, the Minister of Foreign Affairs may sign a treaty without requiring full powers issued by the President.
Any other person may be appointed as a representative and sign a treaty if he or she possesses a valid instrument of full powers, which is issued by the Minister of Foreign Affairs. However, in the case of signing certain types of treaties, the President, on the recommendation of the Minister of Foreign Affairs, will appoint the representative and issue full powers. The Director-General for Treaties prepares the instruments of full powers.
- Consent to the Ratification of the Treaty by the National Assembly
In accordance with Article 60, paragraph 1 of the Constitution, the ratification of some treaties requires the consent of the National Assembly. The Ministry of Government Legislation, considering the opinion of the Director-General for Treaties, decides whether or not the proposed treaty requires the consent of the National Assembly.
To get the consent of the National Assembly, the Director-General for Treaties drafts a ratification bill requesting the consent of the National Assembly to the treaty, and next the government submits the bill to the National Assembly.
- Ratification
After the signature of the treaty or consent to its ratification is given, the Director-General for Treaties drafts the instruments for ratification, acceptance, approval, or accession and deposits them with the treaty depositary.
- Promulgation
A multilateral treaty, for which the above-mentioned procedures have been completed, will be promulgated in the official gazette by the Ministry of Public Administration and Security. The Director-General for Treaties requests the Ministry of Public Administration and Security to promulgate the treaty. Separately with this promulgation, the version in the official language and the Korean texts of the multilateral treaties are also listed on the MOFA website. (http://www.mofa.go.kr/trade/treatylaw/treatyinformation/multilateral/
index.jsp?menu=m_30_50_40&tabmenu=t_2)
A duly concluded and promulgated multilateral treaty will have the same legal effect as the domestic legislation.
- Amendments and Advice
Amendments of a treaty also follow the same procedures as outlined above.
Upon request by related ministries or other offices of MOFA, the Director-General for Treaties offers information about the treaty, such as the status of the state parties and the interpretation or application of the treaty.
- Can an international organization conclude a treaty with states?
The traditional view is that only states are able to conclude a treaty. There is no doubt that international law is still applied primarily to states, but in recent years, international law may apply to other international actors as well.
In particular, international organizations play a pivotal role in the international society. International organizations are often established by international treaties, which determine their status and functions including their legal capacity. Most international organizations have international legal personalities and thus have the legal capacity to conclude treaties with States or other international organizations. (The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations provides the set of rules for the conclusion of treaties between them.)
However, it should also be noted that an international organization is permitted to conclude a treaty only within the framework of the purposes and functions of that organization authorized by its constitutional convention or statute. For example, it is not possible for the World Health Organization to make a mutual defense treaty with States on the Pacific, as such a treaty would be beyond the authority of the WHO.
Agency-to-agency
What is an 'agency-to-agency arrangement'?
Treaties are concluded between States or international organizations, but some international arrangements are concluded between particular ministries or other government agencies. Such an agreement is an 'agency-to-agency arrangement' and is often called a Memorandum of Understanding (MOU). A government agency may conclude an agency-to-agency arrangement, within the competence of the agency and in accordance with its national legislation, with its counterpart in the other country's agency, that is in charge of the same or similar work.
How an agency-to-agency arrangement is concluded
An agency-to-agency arrangement is concluded according to the following procedures. First, the agency needs to evaluate the necessity and appropriateness of the arrangement, by consulting with the relevant bureau of the Ministry of Foreign Affairs. Second, the agency has to negotiate with the corresponding agency of the other State, and draw up a draft text. The agency may request the Ministry of Foreign Affairs to review the draft text. Finally, the heads of the two agencies, or high-ranking officials of the agencies designated by the heads of the agencies, sign the agreed texts.
Signatory of an agency-to-agency arrangement
The signatory of an agency-to-agency arrangement is the head of the agency. In case the head cannot sign an arrangement, another high-ranking officer of the agency, authorized by the head, may sign the arrangement.
It is not appropriate for an Ambassador Extraordinary and Plenipotentiary to sign an arrangement on behalf of an agency, as an ambassador is a diplomat, representing a State, and not a particular agency.
Review by the Director for Treaties of the Ministry of Foreign Affairs
It is desirable for government agencies to request the Director for Treaties of the Ministry of Foreign Affairs to review an agency-to-agency arrangement before its signature.
This is because an agency may inadvertently conclude an arrangement dealing with matters out of its competence, which could cause problems with the other State as well as with other agencies in its own State. Therefore, by cooperating with the agency which concludes the arrangement and participating in the process of concluding arrangement, the Director-General for Treaties endeavors to maintain the consistency of foreign relations and prevent any problems from arising.
Important points that agencies should keep in mind
Agency-to-agency arrangements shall not include provisions which generate legal rights and obligations for States. Also, the arrangements shall not deal with matters that fall within the competence of other agencies. An arrangement should only deal with matters which fall within the competence of the agency which concludes it.
It is desirable to insert the following sentence in order to clarify the character of the agency-to-agency arrangement: "All the activities under this Arrangement will be subject to the availability of appropriate funds and personnel and to the laws and regulations of the respective countries."
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Participation in Multilateral Treaties
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The Republic of Korea, which is currently a party to more than 650 multilateral treaties, has been participating in multilateral treaties since the establishment of its government in 1948 by acceding to existing treaties or by taking part in negotiations for new treaties in a variety of fields.International OrganizationsInternational Humanitarian LawAnti-terrorism ConventionsSpace LawEnvironmentEducation and CultureDisarmament and Nuclear Energy
International Organizations
Before its accession to the United Nations (UN) in 1991, the Republic of Korea participated in several United Nations specialized agencies and other international organizations.
However, since joining the UN, its activities in international organizations have increased tremendously.
The Republic of Korea now participates in the treaty-making process at many international organizations and is also a party to the constitutional treaties and privileges and immunities agreements of international organizations such as the UN and its specialized agencies, the International Atomic Energy Agency (IAEA), the International Criminal Court (ICC) and the International Tribunal for the Law of the Sea (ITLOS), etc.
The Republic of Korea has also concluded 217 bilateral agreements with international organizations in various areas of cooperation.
International Humanitarian Law
International humanitarian law (IHL), also known as the law of war or the law of armed conflict, is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. IHL rests on the premise that, even if war is unavoidable, there are certain humanitarian obligations that must be observed by all belligerents. By restricting the methods and means of warfare and protecting the wounded, prisoners of war and civilians during armed conflicts and occupation, IHL also helps to facilitate the healing process after the cessation of hostilities. With the outburst of civil wars in post-Cold War era, the dissemination and enforcement of IHL has assumed increased significance. The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules of international humanitarian law.
To ensure compliance with IHL, States are under a general obligation to disseminate, implement and enforce it within their territory. Many concerned ministries within the government, including the military, are involved in fulfilling this obligation. The Red Cross, civil society and NGOs also play important roles by complementing the primary role of the government.
The Republic of Korea is a party to all major IHL treaties, such as the four Geneva Conventions and their two Additional Protocols. In 2004, Korea declared its acceptance of the competence of the International Fact-Finding Commission in accordance with Article 90 of the first Additional Protocol to the Geneva Conventions. In 2002, the Korean Government established the National Committee on International Humanitarian Law for the purpose of conducting research and educating the Korean public about international humanitarian law. The Korean Government is committed to continuing its role in the development and dissemination of international humanitarian law and is cooperating with the Korean Red Cross and the International Committee of Red Cross in this respect.
Anti-terrorism Conventions
Terrorism is a security challenge that recognizes no borders and threatens all peoples. The international community will not tolerate any form of terrorism, regardless of who is involved, where it occurs or whatever its purposes. Through the Security Council and UN General Assembly, States have been coordinating their counter-terrorism efforts. In 2006, the UN General Assembly adopted the United Nations Global Counter-Terrorism Strategy, marking the first time countries around the world have agreed to a common strategic approach to fight terrorism.
An important part of anti-terrorism efforts is the work of the United Nations in the establishment of a legal framework for the prevention and suppression of terrorism. Thirteen international conventions have been elaborated within the framework of the United Nations system relating to different areas of counter-terrorism, such as the safety of civil aviation, hostage situations, crimes against diplomats and other internationally protected persons, protection of nuclear material, marking of plastic explosives, terrorist bombings, nuclear terrorism, the safety of maritime navigation and the financing of terrorism. In addition, a draft Comprehensive Convention on International Terrorism is being negotiated in the Sixth Committee of the United Nations.
The Republic of Korea actively supports and fully cooperates in all international efforts to fight terrorism. It is a party to 12 international anti-terrorism conventions and has signed the International Convention on the Suppression of Acts of Nuclear Terrorism. The Republic of Korea is also participating in the drafting of the Comprehensive Convention on International Terrorism.
The Republic of Korea is also actively participating in international efforts to counter terrorist financing. In support of these efforts, Korea has enacted anti-money laundering legislation, the Financial Transaction Reports Act and Proceeds of Crime Act, which have been in effect since November 28, 2001. In addition, the National Assembly is now deliberating a bill to implement the International Convention for the Suppression of the Financing of Terrorism.
Space Law
The Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) is the primary international forum for the development of laws and principles governing outer space. The Committee has concluded five international legal instruments and five sets of major legal principles governing space-related activities. These five treaties provide for international legal principles such as the non-appropriation of outer space by any one country, the peaceful use of outer space, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and exploitation of natural resources in outer space and the settlement of disputes. The legal principles adopted by the UN General Assembly address the application of international law and promotion of international cooperation and understanding in space activities, the dissemination and exchange of information through transnational direct television broadcasting via satellites and remote satellite observation of Earth and general standards regulating the safe use of nuclear power sources necessary for the exploration and use of outer space.
The Republic of Korea is a party to the four major international conventions related to space law: the Outer Space Treaty, the Rescue Agreement, the Liability Convention and the Registration Convention. Domestically, as the space activities of both governmental and non-governmental entities in Korea are increasing, the Republic of Korea is developing a national space law system to implement these space law conventions. In 2005, Korea enacted the Space Development Promotion Act and its regulations. To complement this legislation, the National Assembly has proposed and will deliberate on a bill on compensation for damage caused by space objects, which would provide more precise criteria and procedures for compensation, including a limit on damages.
Environment
Acknowledging that the pollution of the environment is a serious global concern, the Republic of Korea is actively participating in the development of international legal instruments in a wide variety of areas to help protect the global environment.
The Republic of Korea is a party to 46 international environmental conventions, including major environmental conventions such as the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity, the Vienna Convention for the Protection of the Ozone Layer and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.
Education and Culture
The Republic of Korea has become a party to eight conventions in the field of education and culture, including the Convention for the Safeguarding of the Intangible Cultural Heritage and the Convention concerning the Protection of the World Cultural and Natural Heritage, since it acceded to the Constitution of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1950.
As a member of UNESCO, the Republic of Korea is involved in the process of drafting and adopting conventions concerning education and culture, such as the Convention for the Protection and Promotion of the Diversity of Cultural Expressions.
Disarmament and Nuclear Energy
Disarmament and non-proliferation are indispensable for creating a security environment favorable to ensuring human development. Two main international bodies addressing these issues are the United Nations and the IAEA. The International Atomic Energy Agency (IAEA) has served as an intergovernmental forum for scientific and technical cooperation in the peaceful use of nuclear technology worldwide since its establishment in 1957. The IAEA is the depositary of key international conventions and legal agreements including the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). The NPT establishes a safeguards system under the responsibility of the IAEA, which also plays a central role under the Treaty in areas of technology transfer for peaceful purposes. Several major disarmament international conventions have been adopted in the past several decades, including the Biological Weapons Convention (BWC), the Convention on Certain Conventional Weapons (CCW), the Chemical Weapons Convention (CWC) and the Comprehensive Test Ban Treaty (CTBT). At the UN, states continue to discuss disarmament and negotiate new conventions on new disarmament issues and additional protocols for existing disarmament conventions.
The Republic of Korea is a party to most of these major disarmament international conventions, including NPT, CWC, BWC and CCW, and has actively cooperated with the IAEA and other international organizations in this field as well as concluding several bilateral cooperation agreements with these organizations. It has also ratified the CTBT, although this treaty has not yet entered into force. The Republic of Korea is continuing to accede to new conventions or protocols and is also participating in principal international forums on this issue, including the Conference on Disarmament.
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