The objective of this study is to elaborate upon how the 'Sovereignty' over the Korean peninsula was managed, within the perimeters of the U.N. Forces Headquarters' occupation policy regarding the so-called 'retrieved areas', and how the situation cha ...
The objective of this study is to elaborate upon how the 'Sovereignty' over the Korean peninsula was managed, within the perimeters of the U.N. Forces Headquarters' occupation policy regarding the so-called 'retrieved areas', and how the situation changed during the process of the administrative power transfer.
First, there is the matter of entities that were directly involved in ruling the region above the 38th parallel, and also involved in the transfer process of administrative power to the South Korean government. The region above the 38th parallel, which was referred to as 'retrieved area', was put under control of the U.N. forces during the Korean war, and remained so even after the cease-fire was set in place. The legal basis cited for such management were the U.N. Resolutions passed on July 7th and October 12th, 1950. With the July 7th resolution, U.N. authorized U.S. to lead the engagements in the Korean war, and with such authorization the U.S. Unified Command established a U.N. Forces Headquarters. And with the October 12th resolution, two things were confirmed: Republic of Korea(South Korea)'s sovereignty was to be limited to the South of the 38th parallel, and the U.N. forces were to establish a military government in the North Korean region. As a result, the North of the 38th parallel was officially put under the jurisdiction of the U.N. Forces Headquarters, but in fact it was put under U.S. control. Reflecting such situation, during the administrative power transfer, titles like U.S. Unified Command, U.N. Forces Headquarters, and the U.S. 8th Command were used in a variety of cases. The official entity in charge of the military regime was the U.N. Forces Headquarters, but the representative who negotiated with the government of the Republic of Korea was the U.S. 8th Command, and the entity which declared the transfer, was the U.S. Unified Command.
Second, there is the matter of the internal structure of the U.N. military regime, and how it functioned in reality. The U.N. Forces Supreme commander assumed Commander in chief of the military regime in these regions, and performed the required duties through several entities like the commander of the U.S. 8th Command, ranking officer in civilian affairs, and regional military commanders, all under command of the U.N. Forces Headquarters. These regions, in formality, were under jurisdiction of the U.N. Forces Headquarters, but in reality they were governed under the plans and through system established by the U.S. 8th command, with Korean military commanders attending to the procedure of details. Regions were demarcated with military units' positioning in mind as well.
Third, there is the issue of the position and attitude of both U.S. and South Korea, toward the matter of (South Korean government's) sovereignty, which were presented during the administrative power transfer process. In the end, U.S. succeeded in accomplishing three of its major objectives, going through only an abbreviated process in the form of a 'local arrangement', separating the issue of 'legal control authority' from the case, and letting the U.N. supreme commander retain authority over military matters.
The South Korean government persistently claimed its sovereignty over the area above the 38th parallel, by citing the Constitution's 'Territory' clause, and presenting the argument of '(South Korean government's being the) Sole legitimate government (in the Korean peninsula)', but in the end the South Korean government chose another option which it deemed more important in terms of Korea-U.S. relationship, namely receiving more U.S.' relief in military and economic areas(<Proceedings of Korea-U.S. Agreement>). As a result, administrative authority over the areas above the 38th parallel was transferred to the South Korean government on November 17th, 1954, while the task of finalizing the legal issues was put on hold, and military authority was retained by the U.N. Supreme commander.