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.
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.
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.
Article 60, paragraph 1 of the Constitution stipulates that the National Assembly shall have the right to consent to the conclusion and ratification of treaties pertaining to mutual assistance or mutual security; treaties concerning important international organizations; treaties of friendship, trade and navigation; treaties pertaining to any restriction in sovereignty; peace treaties; treaties which will burden the State or people with an important financial obligation; or treaties related to legislative matters. In such case, the International Legal Affairs Bureau 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.
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 the Interior and Safety to promulgate such treaties. They are listed on the following website:
In addition to this promulgation, the bilateral treaties which enters into force are also listed on the MOFA website
Article 6, paragraph 1 of the Constitution states that treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea.
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.
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 International Legal Affairs Bureau prepares the instruments of full powers.
To get the consent of the National Assembly, the International Legal Affairs Bureau drafts a ratification bill requesting the consent of the National Assembly to the treaty, and then the government submits the bill to the National Assembly.
A duly concluded and promulgated multilateral treaty will have the same legal effect as the domestic legislation.
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.
Since the establishment of the Korean Government in 1948 until 2021, 3419 treaties - 2693 bilateral and 726 multilateral - were concluded by the Republic of Korea and put into force. In the first thirteen-year period from 1948 to 1960, only 102 treaties - 66 bilateral and 36 multilateral - came into force, whereas in the eleven-year period from 2011 to 2021, 672 treaties - 560 bilateral and 112 multilateral - came into force.
The recent trend in concluding treaties in Korea can be summarized as follows: First, the number of the treaties has increased rapidly. 560 bilateral treaties were concluded from 2011 to 2021, whereas only 66 were concluded in the entire period from 1948 to 1960. Second, regarding bilateral treaties, areas in which treaties are concluded have expanded and an increasing number of treaties related to economic matters, such as conventions for avoiding double taxation, the protection of investment and air service, have been concluded. Third, regarding multilateral treaties, treaties dealing with global matters such as trade, human rights, and disarmament have been more concluded in recent years, which reflects the fact that states have strengthened inter-dependent relations among themselves.
The Ministry of Foreign Affairs (MOFA) produced and distributed A Guide to Treaty-making (in Korean), which was designed to promote understanding of treaty-making process among government agencies and local municipal entities, as well as legal scholars and students. This book included an overview of the treaty-making process and trend, as well as an explanation of the meaning and purposes of treaties, treaty-making procedures and matters to be dealt with at signing ceremonies. The guide book is also available on the MOFA website. Furthermore, MOFA gave presentations and lectures on treaty affairs to the staff of government agencies and local municipal entities to help enhance their understanding of treaties and agency-to-agency arrangements.
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', also known as 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 the national legislation, with its counterpart in the other country.
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 negotiates 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 other high-ranking officials of the agencies designated by the heads of the agencies, sign the agreed texts.
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.
It is desirable for government agencies to request the relevant bureau 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 other states 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 International Legal Affairs Bureau endeavors to maintain the consistency of foreign relations and prevent any problems from arising.
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 appropriated funds and personnel and to the laws and regulations of the respective countries."