Peace with Pyongyang: Legal Implications for the United States and South Korea
Reaching a peace treaty to end the Korean War is frequently interpreted as a North Korean “trap” rather than as the key to resolving the nuclear crisis and the decades-old Korean Question in general. Many fear that it could legitimize the DPRK (North Korea) as a nuclear weapons state, split the alliance between the United States and the ROK (South Korea), or even trigger a reunification under North Korean leadership. In fact, these are merely hypothetical political consequences that cannot come to pass against the joint will of Seoul and Washington. A peace treaty can raise the legal bar on using force on the Korean Peninsula, without legally implying the withdrawal of US troops from Korea, the dissolution of the US-ROK alliance, the start of a reunification process, the legalization of North Korean nuclear weapons or the lifting of United Nations nonproliferation sanctions. In short, a peace treaty is a versatile instrument that can be tailored to further US and South Korean interests in addressing the security challenges posed by North Korea.
Distinguishing Peace and Armistice
Peace would raise the legal bar for using force on the Korean Peninsula. The legal effect of a peace treaty is to end a state of war between its parties, meaning they may not refer to matters settled by the treaty to justify any further use of force against each other. By contrast, an armistice is traditionally understood as a temporary ceasefire agreement that does not end the state of war. An armistice is only a weak safeguard, because the main consequence of serious violations is to give the other side a right to denounce it and to resume hostilities in due course. The Korean War Armistice Agreement (KWAA) fits the traditional definition of armistices better than modern theories interpreting them as final settlements, as it was clearly not intended as conclusive. The KWAA’s own provisions call for its replacement with a political settlement for peace; in addition, it was never formally ratified, was continuously violated by both sides and was repeatedly denounced by Pyongyang. Moreover, several UN organs have called for the KWAA’s replacement, including the General Assembly, the President of the Security Council, the Secretary-General and even the Commission of Inquiry on Human Rights in the DPRK. That said, peace would not leave the ROK defenseless, as it does not prejudice the right of parties to resort to force again if legally justified by new instances of self-defense or Security Council authorization.
Peace would nevertheless imply the dissolution of the so-called “United Nations Command” (UNC), as its sole remaining duty is the enforcement of the KWAA. The UNC arguably fulfilled its original Security Council mandate by September 1950, when forces under the “unified command” of the United States repelled North Korean troops beyond the 38th parallel. The UNC lingered on because its subsequent “rollback” invasion of the North ultimately implicated it in signing and monitoring the KWAA. Nearly all UN Member troops left over the years, and the General Assembly already suggested the UNC’s dissolution as early as the 1970s. Dissolution would not significantly affect combat capabilities of the US-ROK alliance, because the UNC’s operational control (OPCON) over US Forces Korea and ROK troops was overtaken in 1978 by the US-ROK Combined Forces Command (CFC).
Parties to Peace
All belligerents to the Korean War are capable of concluding a peace treaty, but a treaty need not include all belligerents: it can end the state of war as between only some of them. There is, therefore, a political element in determining which parties are the most relevant for meaningfully reducing tensions and helping resolve the Korean Question. The states that were most clearly belligerents are the DPRK, the ROK and the United States as the commanding authority of the UNC forces. The other UN members that contributed troops were also belligerents, but not the UN itself since it “did not at any time have any role in the command of the forces that operated in Korea under the Unified Command between 1950 and 1953.” China is generally considered a belligerent, despite the artifice of a “volunteer army,” but has already normalized relations with the United States and ROK, suggesting an implicit end to the war as between these parties. It is also important to note that an armistice and a peace treaty are legally distinct instruments: participation in the former is not a precondition to participation in the latter. It is irrelevant here that former ROK president Syngman Rhee refused to sign the KWAA, and neither the DPRK’s refusal to recognize the ROK as party nor the DPRK’s own denunciation of the KWAA precludes an ROK-DPRK peace agreement. It is, therefore, possible to end the Korean War in substance by concluding in parallel a US-DPRK peace treaty and a ROK-DPRK peace agreement.
The Koreas can conclude a binding peace agreement even while mutually denying their sovereignty. Although a “treaty” can strictly speaking only be concluded between states, international law can also recognize as binding agreements concluded between subjects other than states, especially peace agreements. While the Koreas can be characterized as two states—they are recognized as such at the United Nations—their insistence on seeing each other as one state with two authorities competing for legitimacy could detract from the full application of the law of treaties. The Koreas have nevertheless already concluded several inter-Korean agreements which have been ratified following the constitutional procedure for treaties, formally expressing intent to be bound. Note that the Panmunjom Declaration of April 27, 2018 would fall short of a peace agreement even if it were ratified, as it calls itself for follow-up meetings “with a view to declaring an end to the War and establishing a permanent and solid peace regime.” Note also that a peace agreement cannot force the Koreas into a reunification model against their will; Seoul and Pyongyang only have a constitutional mandate to seek a particular type of reunification and thus can block any project that doesn’t fit this mandate.
Distinguishing Peace and the US-ROK Alliance
Peace does not legally imply the dissolution of the US-ROK alliance or force Seoul to withdraw its invitation of US troops, as these are bilateral matters to be decided between Seoul and Washington. States may as a sovereign prerogative invite foreign troops on their territory, within the limits of the principle of non-intervention, and the widespread state practice of maintaining foreign military bases in peacetime indicates that consent may be given independently of the existence of an active military threat. Peace would have diminished Seoul’s original justification for the presence of the United States and other UN Members, namely the 1950 invitation to repel the DPRK invasion. The conclusion of the US-ROK Mutual Defense Treaty in 1953 nevertheless provided an alternate basis to justify the continued invitation of US troops, one that was not tied to the existence of an active military threat from the DPRK. Peace would not legally undermine the alliance treaty as it is drafted to remain in force indefinitely until either side decides to terminate it with one year notice.
Peace could nevertheless legally affect the maintenance of the US-ROK CFC’s “wartime OPCON” over ROK troops, given the reduction of military needs that justify this arrangement. OPCON stands for the delegated authority to direct the operation, training and organization of forces. Seoul delegated OPCON over its armed forces to the UNC from 1954 to 1978, and to the CFC since 1978. From 1994 onward, Seoul has reduced the delegation to the point where it now retains OPCON over its armed forces by default and only delegates it to the CFC in “wartime,” i.e. if hostilities break out. Peace would at least partially fulfill the stated conditions for ending the delegation: “the ROK will assume wartime OPCON when critical ROK and Alliance military capabilities are secured and the security environment on the Korean Peninsula and in the region is conducive to a stable OPCON transition.”
Distinguishing Peace and Denuclearization
Peace does not legalize North Korean nuclear weapons. Short of a threat or use of force violating Article 2(4) of the UN Charter, the DPRK’s mere development or possession of nuclear weapons does not violate customary international law, as the law does not include any rules “whereby the level of armaments of a sovereign state can be limited,” or “any comprehensive and universal prohibition of the threat or use of nuclear weapons as such.” Development and possession of nuclear weapons would violate the Nonproliferation Treaty (NPT), but the DPRK declared withdrawal in 2003 by invoking the art. X right of each party “to withdraw if it decides that extraordinary events… have jeopardized the supreme interests of its country.” Even if it were still a party, the DPRK could not be recognized as an authorized “nuclear weapons state” under the NPT because it has not “manufactured and exploded a nuclear weapon… prior to 1 January 1967.”
Peace does not legally imply lifting UNSC sanctions: they are not legally based on a violation of the NPT, but on the violation in particular of UNSC resolution 1718, which singles out DPRK nuclear weapons as a particular threat to international peace and security. While the DPRK has argued that these resolutions illegally infringe on its inherent right of self-defense, peace would not affect the debate on whether the UNSC had or had not abused its authority under the Charter when it adopted the sanctions. In this sense, it appears possible to conclude a peace treaty before denuclearization, as a security guarantee, without prejudice to the maintenance of nonproliferation sanctions as leverage to then enforce full denuclearization.
A peace treaty may not be the only way to achieve progress in the resolution of the Korean Question, but it is hard to think of a more straightforward, flexible and impactful instrument in this context. At the same time, it is important to note that purposefully delaying or obstructing peace for leverage on legally distinct matters could violate the UN Charter obligations to settle disputes peacefully and in good faith. States are also bound by the principle of non-intervention in internal and external affairs, which prohibits “coercion”—including but not limited to the threat or use of force—with regard to the sovereign matters of other states, such as “the choice of a political, economic, social and cultural system, and the formulation of foreign policy.” Ultimately, the Korean people, just like all other peoples implicated in this crisis, have a right to peace.
See e.g. Andrei Lankov, “The Problem With a Korean Peace Treaty,” NK News, October 9, 2013, https://www.nknews.org/2013/10/the-problem-with-a-korean-peace-treaty/; Ahn Miyeong, “Pyeonghwa Hyeopjeong-eun Cheokhwa Tongil-eui Jirumgil” (A Peace Agreement Is a Shortcut to Hostile Reunification), Korea Times, July 29, 2014, http://www.koreatimes.com/article/20140729/866571; Bruce W. Bennett, “Kim Jong-Un Is Trolling America Again,” The National Interest, May 17, 2016, http://nationalinterest.org/feature/kim-jong-un-trolling-america-again-16238; Donald Kirk, “Korean Peace Treaty is a Bad Idea,” Inside Sources, June 29, 2017, http://www.insidesources.com/korean-peace-treaty-bad-idea/; Evans J.R. Revere, “A US-North Korea Summit: What Could Possibly Go Wrong?,” Brookings, March 9, 2018, https://www.brookings.edu/blog/order-from-chaos/2018/03/09/a-u-s-north-korea-summit-what-could-possibly-gowrong; Michael Rubin, “Trump Must Not Fall for the North Korea Peace Treaty Trap,” The Washington Examiner, March 12, 2018, https://www.washingtonexaminer.com/opinion/contributors/trump-must-not-fall-for-the-north-korea-peace-treatytrap; Kim Seongmin, “Kim Jong-un-yi Malhaneun Pyeonghwa Hyeopjeong-eun ‘Juhan Migun Cheolsu’-Da” (Kim Jong-un’s Peace Agreement Amounts to the Withdrawal of US Forces Korea), Chosun Ilbo, April 24, 2018, http://news.chosun.com/site/data/html_dir/2018/04/23/2018042302764.html; Eli Lake, “Beware the Korean Peace Trap,” Bloomberg, April 27, 2018, https://www.bloomberg.com/view/articles/2018-04-27/north-korean-peace-pledge-isa-trap.
Lassa Oppenheim, International Law: A Treatise, Vol. 2, 7th ed. (London: Longmans, Green and Co., 1952), para. 272, p. 611 (“[Parties to a peace treaty] are legally bound not to go to war over matters settled by a previous treaty of peace.”). See, generally, Marina Mancini, “The Effects of a State of War or Armed Conflict,” Oxford Handbook on the Use of Force in International Law (Oxford University Press, 2015), Marc Weller ed., p.988-1013 (on general differences between war and peace in contemporary international law); Jann K. Kleffner, “Peace Treaties,” Max Planck Encyclopedia of Public International Law, last updated March 2011, para. 7-9 (on the evolution of the state of war doctrine in contemporary international law).
Oppenheim, supra n. 2, at para. 231, p. 546.
Ibid., at para. 239, p. 555-6.
Patrick M. Norton, “Ending the Korean War Armistice: The Legal Issues,” The Nautilus Institute, March 29, 1997, at II.B, https://nautilus.org/napsnet/napsnet-policy-forum/napsnet-policy-forum-online-2-norton-ending-the-korean-armistice/.
Korean War Armistice Agreement (Jul. 27, 1953), art. IV, para. 60.
Oppenheim, supra n.2, para. 235(2), p. 550 (“[S]ince general armistices are of vital political importance, only the belligerent Governments themselves or their commanders-in-chief are competent to conclude them, and ratification, whether specially stipulated or not, is usually considered necessary” (citations omitted).
Steven Lee, “The Korean Armistice and the End of Peace: The US-UN Coalition and the Dynamics of War-Making in Korea, 1953-1976,” Journal of Korean Studies, Vol.18, No. 2 (Fall 2013), pp. 183-224 (on the violation of the Armistice provisions concerning the prohibition of reinforcements and the responsibilities of the Neutral Nations Supervisory Commission), http://www.jstor.org/stable/44080503; Congressional Research Service, “North Korean Provocative Actions, 1950-2007,” April 20, 2007 (detailing a US view on DPRK armistice violations), https://fas.org/sgp/crs/row/RL30004.pdf; Ho Hak Rim, “The Conclusion of a Korean Peace Treaty and the US Strategy in the Asia Pacific Region,” Institute for Security & Development Policy, December 2011 (detailing a DPRK view on US armistice violations), http://isdp.eu/content/uploads/images/stories/isdp-main-pdf/2011_ho_korean-peace-treaty.pdf.
Yonhap News Agency, “Chronology of Major North Korean Statements on the Korean War Armistice,” May 28, 2009, http://english.yonhapnews.co.kr/northkorea/2009/05/28/46/0401000000AEN20090528004200315F.HTML (on DPRK denunciation of the Armistice); Choe Sang-hun, “North Korea Declares 1953 War Truce Nullified,” New York Times, March 11, 2013, https://www.nytimes.com/2013/03/12/world/asia/north-korea-says-it-has-nullified-1953-korean-war-armistice.html.
G.A. Res. 3390 (XXX) A-B, Question of Korea (November 18, 1975); S.C. Pres. Statement 1996/42 (October 15, 1996); UN Secretary-General, Statement on 50th Anniversary of Armistice Agreement SG/SM/8792 (July 25, 2003); UN Human Rights Council, Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea A/HRC/25/63 (Feb. 7, 2014), para. 94(j).
UN Charter arts. 2.3, 2.4, 42, 51; Martin Waehlisch, “Peace Settlements and Prohibition of the Use of Force,” Oxford Handbook on the Use of Force in International Law (Oxford University Press, 2015), Marc Weller ed., p.976.
Burwell B. Bell, “The Evolution of Combined Forces Command,” Presentation at the Korea Foundation Global Seminar, June 8-11, 2012, https://www.brookings.edu/wp-content/uploads/2012/09/69-Bell-Evolution-of-Combined-Forces-Command.pdf; Hwee Rhak Park, “The Transfer of Wartime Operational Control in Korea: History, Risks and Tasks from a Military Perspective,” Korean Journal of International Studies, Vol. 8, Issue 2 (December 2010) p.339, http://www.kaisnet.or.kr/resource/down/8_2_06.pdf; see, generally, Ronda Hauben, “The Role of the UN in the Unending Korean War: ‘United Nations Command’ as Camouflage,” Global Research, September 21, 2013, https://www.globalresearch.ca/the-role-of-the-un-in-the-unending-korean-war-united-nations-command-as-camouflage/5350876.
S.C. Res. 82 (Jun. 25, 1950); S.C. Res. 83 (Jun. 27, 1950); S.C. Res. 84 (Jul. 7, 1950).
Korean War Armistice Agreement (Jul. 27, 1953), art. II. On the rollback decision, see: National Security Council Report NSC 81/1 to the President, “United States Courses of Action with Respect to Korea” (Sep. 9, 1950), Foreign Relations of the United States, 1950, Vol. 2, p.712, https://history.state.gov/historicaldocuments/frus1950v07/pg_712; Foreign Relations of the United States, 1950, Vol. VII, Doc. 543, https://history.state.gov/historicaldocuments/frus1950v07/d543; Yufan Hao and Zhihai Zhai, “China’s Decision to Enter the Korean War: History Revisited,” China Quarterly, Vol. 121, pp. 94-115 (1990) (on the link between the rollback policy and China’s intervention in the War), https://doi.org/10.1017/S0305741000013527; see also G.A. Res. 376 (V), The Problem of the Independence of Korea (Oct. 7, 1950), para. 1.
G.A. Res. 3333 (XXIX), Question of Korea (Dec. 17, 1974), para. 2; G.A. Res. 3390 (XXX) A, Question of Korea (Nov. 18, 1975), para. 4; G.A. Res. 3390 (XXX) B, Question of Korea (Nov. 18, 1975), para. 2.
Yonhap News Agency, “Chronology of Wartime Operational Control in South Korea,” October 24, 2014, http://english.yonhapnews.co.kr/news/2014/10/23/24/0200000000AEN20141023004800315F.html. But see Park, supra n. 12, at p.339 (alleging that “the two countries did not produce any document for the transfer of OPCON authority from the Commander of UNC to the ROK government and re-delegation of it to the Commander of CFC.”).
For examples of treaties that did not include all belligerents to a war, see e.g. San Francisco Peace Treaty (Sep. 8, 1951); Treaty of Brest-Litovsk (Mar. 3, 1918); Treaty of Versailles (Jun. 28, 1919); US-German Peace Treaty (Aug. 25, 1921).
Norton, supra n.5, at I.C. and II.C. See also S.C. Res. 84 (Jul. 7, 1950), para. 3; Letter from ROK President Syngman Rhee to Commander-in-Chief of UN Command Douglas MacArthur (“Pusan Letter”), July 15, 1950.
Norton, supra n. 5, at II.C. See also G.A. Res. 711 (VII), The Korean Question (Aug. 28, 1953), para. 5(a).
UN Secretary-General Spokesperson, Daily Press Briefing, June 21, 2013, https://www.un.org/press/en/2013/db130621.doc.htm (as quoted by Hauben, supra n. 12). See also Norton, supra n. 5, at I.C.1.
Norton, supra n. 5, at II.C.; Joint Communique on the Establishment of Diplomatic Relations between the United States of America and the People’s Republic of China (Jan. 1, 1979); Joint Declaration on the Establishment of Diplomatic Relations between the Republic of Korea and the People’s Republic of China (Aug. 24, 1992).
See n. 9.
Vienna Convention on the Law of Treaties, art. 3. See notably Christine Bell, “Peace Agreements: Their Nature and Legal Status,” The American Journal of International Law, Vol. 100, No.2, pp. 373, 380 (Apr. 2006).
See generally Jeong-ho Roh, “The Legal and Institutional Approach to Inter-Korean Relations,” in Samuel S. Kim, ed., Inter-Korean Relations: Problems and Prospects (Palgrave Macmillan, 2004), pp. 159-174.
Seong-Ho Jhe, “Four Major Agreements on Inter-Korean Economic Cooperation and Legal Measures for their Implementation,” Journal of Korean Law, Vol.5, No.1, p. 129 (2006); see also Hyo-Won Lee, “The Current State and Required Modifications of
the Inter-Korean Exchange and Cooperation Act,” Journal of Korean Law, Vol. 11, pp. 55-76 (Dec. 2011).
Panmunjom Declaration for Peace, Prosperity and Unification of the Korean Peninsula (Apr. 27, 2018), para. 3.3; Yonhap News Agency, “Moon Urges Parliamentary Ratification of Panmunjom Declaration,” April 30, 2018, http://english.yonhapnews.co.kr/national/2018/04/30/0301000000AEN20180430007652315.html.
ROK Constitution, art 4; DPRK Constitution, art 9. See, generally, Henri Féron, “Proposing a Model of Reunification to Solve the Korean Nuclear Crisis,” in Kyung-ok Do, Jeong-ho Roh and Henri Féron, eds., Pathways to a Peaceful Korean Peninsula: Denuclearization, Reconciliation and Cooperation (Korean Institute for National Unification, 2016), pp. 263-301.
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. US), I.C.J. Reports 1986, p.133, para. 265 (“there is no rule of customary international law to prevent a State from choosing and conducting a foreign policy in co-ordination with that of another State”). See also Agence France Presse, “S. Korea: US Troop Withdrawal Not Linked to Possible Peace Treaty,” May 2, 2018, https://www.yahoo.com/news/korea-confirms-arrival-f-22-stealth-fighters-drill-022205896.html.
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. US), I.C.J. Reports 1986, p.126, para. 246 (“[intervention is] allowable at the request of the government of a State”); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, Judgment, I.C.J. Reports 2005, p. 196-199, paras. 42-54.
S.C. Res. 82 (Jun. 25, 1950); S.C. Res. 83 (Jun. 27, 1950); S.C. Res. 84 (Jul. 7, 1950).
US-ROK Mutual Defense Treaty (Oct.1, 1953). See also Status of Forces Agreement between the United States of America and the Republic of Korea (Jul. 9, 1966).
US-ROK Mutual Defense Treaty (Oct.1, 1953), art. VI.
See, generally, Joint Publication 1, Doctrine for the Armed Forces of the United States, March 25, 2013, at V-6, http://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp1_ch1.pdf?ver=2017-12-23-160207-587.
See n. 16. Letter from ROK President Syngman Rhee to Commander-in-Chief of UN Command Douglas MacArthur (“Pusan Letter”), July 15, 1950; Agreed Minutes and Amendments between the Government of the Republic of Korea and the United States of America (Nov. 17, 1954), art. 2. See also: Won-je Son, “The ‘most remarkable concession of sovereignty in the entire world’,” Hankyoreh, November 4, 2014, http://english.hani.co.kr/arti/english_edition/e_international/662856.html.
Bell, supra n. 12; Walter Sharp, OPCON Transition in Korea, Korea Chair Platform, December 2, 2013 (according to which transition to wartime OPCON is to be made at “DEFCON III”), https://csis-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/publication/131216_OPCON_Transition_in_Korea.pdf.
46th ROK-US Security Consultative Meeting, Joint Communiqué (Oct. 23, 2014), para. 13,
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. US), I.C.J. Reports 1986, p.135, para. 269; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 266, para. 105(2)(B) and (C).
NPT Arts. II, X; Korean Central News Agency, “KCNA ‘Detailed Report’ Explains NPT Withdrawal,” January 22, 2003, https://fas.org/nuke/guide/dprk/nuke/dprk012203.html. Despite initial dispute about whether the withdrawal was legally effective, the UN Treaty Collection Website does not list the DPRK as NPT signatory anymore: United Nations Treaty Collection (website), Treaty on the Non-Proliferation of Nuclear Weapons, last accessed May 3rd, 2018, https://treaties.un.org/pages/showDetails.aspx?objid=08000002801d56c5.
NPT Art. IX(3). See also S.C. Res. 1718 (Oct. 14, 2006), Preamble §4.
S.C. Res. 1718 §1, 2 (Oct. 14, 2006); S.C. Res. 1874 §1 (Jun. 12, 2009); S.C. Res. 2094 §1 (Mar. 7, 2013); S.C. Res. 2270 §1 (Mar. 2, 2016); S.C. Res. 2321 §1 (Nov. 30, 2016); S.C. Res. 2375 §1 (Sep. 11, 2017).
UN Charter art. 24.2, 25; Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford University Press, 2011), pp.54-84. For the DPRK arguments, see e.g. Statement by the DPRK Foreign Minister at the 72nd Session of the UN General Assembly, September 23, 2017, https://gadebate.un.org/sites/default/files/gastatements/72/kp_en.pdf; Korean Central News Agency, “KLC’s White Paper on UN “Resolutions on Sanctions” against the DPRK,” March 16, 2017,
See e.g. James Clapper, “Ending the Dead End in North Korea,” New York Times, May 19, 2018, https://www.nytimes.com/2018/05/19/opinion/sunday/clapper-north-korea.html.
UN Charter arts. 2.2, 2.3, 2.4.
G.A. Res. 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among States (Oct. 24, 1970); Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. US), I.C.J. Reports 1986, p.107-8, para. 205.
G.A. Res. 39/11, Declaration on the Right of Peoples to Peace (Nov. 12, 1984); G.A. Res. 71/189, Declaration on the Right to Peace (Dec. 19, 2016).