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The Forum is open to all participants of the
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ENDING THE KOREAN ARMISTICE AGREEMENT:
By Patrick M. Norton
Copyright (c) 1997 Nautilus of America/The Nautilus Institute
This new study on the legal issues involved in ending the Korean Armistice
is an important contribution to the public understanding of the issues
underlying the U.S.-North Korea-South Korea
joint briefings on the proposed 4-power talks to end the Korean conflict,
scheduled to start on March 5. This study will be followed by fora on
perspectives from North and South Korea, Russia, Japan, China,
Australia, and the United Kingdom over the coming months. For more
information or to comment, please contact Dr. Peter Hayes or Dr. Wade
Huntley at tel. 510/204-9296, email napsnet@nautilus.org
This paper discusses the legal arrangements necessary to
terminate the Korean War and to replace the current Armistice
Agreement with a lasting peace. To that end, it discusses the
numerous legal issues arising out of: (1) the tension between
the war as, on the one hand, a civil war between the two Koreas
and, on the other, an international war involving the armed
forces of some 20 countries; (2) the unprecedented use of the
United Nations' name and flag by one side to the conflict; and
(3) China's insistence that the Chinese armed forces
participating in the hostilities were only "volunteers." The
paper concludes that: (1) each of the governments contributing
forces to the U.N. side was a belligerent in the war and is now
technically a party to the Armistice; (2) although the Security
Council and the General Assembly at various times endorsed one
side to the conflict, the United Nations itself was not a
belligerent and is not a party to the Armistice Agreement; and
(3) the PRC, despite its disavowals, was a belligerent and is now
a party to the Armistice. The paper recommends that the
Armistice be supplanted by an agreement among the two Koreas, the
United States, and China, accompanied by a resolution of the U.N.
Security Council endorsing the agreements, pursuant to Chapter
VII of the U.N. Charter, as necessary to the restoration and
maintenance of international peace and security in Northeast
Asia.
The Korean War conjures up flickering black-and-white images of a
conflict that seemingly ended long ago. The Armistice Agreement1
that terminated the fighting in Korea has a similarly distant
quality, speaking of parties and institutions that have long
since faded from most memories and, in fact, now maintain little
more than a nominal existence - the "United Nations Command," the
"Chinese People's Volunteers," the "Neutral Nations Supervisory
Commission." Yet, nearly half a century after the fighting
ceased, the demilitarized zone between the two Koreas remains the
most heavily fortified border in the world, and the Armistice,
despite its archaic terms and terminology, remains the only
agreement preventing the re-eruption of armed hostilities.
In recent years there have been recurrent efforts to replace the
Armistice Agreement with a permanent peace.2 To supersede the
Armistice a new agreement must achieve two purposes: it must
legally terminate the armed conflict in Korea; and it must ensure
that its terms are fully binding on all parties necessary to an
ongoing peace. For these purposes, it is necessary to determine
the current status of the Korean War and the ensuing Armistice,
and to identify both the parties to the conflict and the parties
who now have the authority to replace the Armistice with more
permanent arrangements. These are the topics of this Paper.
The issues are more complex than may appear at first glance.
From a legal perspective the Korean War and the Armistice
Agreement are anomalous in several respects: (1) there was from
the outset a fundamental tension between the character of the war
as, on the one hand, a civil war between the two Koreas and, on
the other, an international armed conflict between the armed
forces of some twenty different countries; (2) for the first time
the armed forces on one side of an international armed conflict
fought under the flag of the United Nations; and (3) one of the
principal belligerents, China, insisted that it was not, in fact,
a belligerent and that Chinese armed forces engaged in the
conflict were only "volunteers." The passage of many years and
inconsistent positions taken by all of the interested parties as
it has suited their purposes have compounded the legal
uncertainties resulting from these anomalies.
A. UNITED NATIONS RESPONSES TO NORTH KOREA'S INVASION OF SOUTH
KOREA3
On June 25, 1950, North Korea invaded South Korea. On the same
day, the Security Council: (1) determined that the invasion
constituted a "breach of the peace"; (2) called for the
"immediate cessation of hostilities"; (3) called for North Korea
to withdraw; and (4) called upon all Members to "render every
assistance to the United Nations in the execution of this
resolution and to refrain from giving assistance to the North
Korean authorities."4
On June 27, President Truman announced that he was sending U.S.
armed forces to assist the forces of the Republic of Korea
("ROK") in repelling the invasion.5 A few hours later, the
Security Council adopted a second resolution confirming that the
invasion constituted a breach of the peace and "recommending that
the Members of the United Nations furnish such assistance to the
Republic of Korea as may be necessary to repel the armed attack
and to restore international peace and security in the area."6
And on July 7, 1950, the Council adopted its Resolution 84(V),
"recommending" that Members provide military forces and
assistance "to a unified command under the United States,"
requesting the United States to designate the commander of such
forces," and authorizing "the unified command at its discretion
to use the United Nations flag in the course of operations
against North Korean forces concurrently with the flags of the
various nations participating."
Resolutions 82, 83, and 84 were adopted in the absence of the
Soviet Union.7 In August 1950, the Soviet Union returned to the
Security Council and vetoed all further resolutions concerning
the Korean conflict. The Security Council was thereafter
immobilized, and all further U.N. actions took place in the
General Assembly. That body adopted, on November 3, 1950, the
so-called "Uniting for Peace" Resolution, which asserted that,
when the Security Council is unable to take action with respect
to a breach of the peace, the General Assembly has the authority
to do so.8 When Chinese forces later crossed the Yalu and
attacked U.N. forces, the General Assembly found that "the
Central People's Government of the People's Republic of China, by
giving direct aid and assistance to those who were already
committing aggression in Korea and by engaging in hostilities
against United Nations forces there, has itself engaged in
aggression in Korea."9 The General Assembly called upon the PRC
to withdraw its forces from Korea and called upon "all states and
authorities to continue to lend every assistance to the U.N.
action in Korea." On May 18, 1951, the General Assembly
recommended that every state embargo the shipment of arms,
ammunition, or implements of war to the PRC or the Democratic
People's Republic of Korea ("DPRK").10 A large majority of U.N.
Members and several non-Members immediately imposed the
recommended restrictions.11
B. THE LEGAL CHARACTER OF THE KOREAN WAR
Customary international law long provided a framework for
determining the existence of "war," the parties to that war, and
the rights and duties of those parties and non-belligerent
neutrals. Based on the participants' own statements, one could
conclude that the hostilities in Korea did not constitute a "war"
in this sense of customary international law.12
The Korean War was the first major armed conflict after the
founding of the United Nations and immediately called into
question the applicability and effectiveness of the peacekeeping
provisions of the U.N. Charter,13 which had superseded in large
part the customary international law of war (jus ad bellum).14
The governments contributing to the United Nations Command
("UNC") expressly invoked the new Charter Law, characterizing
their participation in the armed conflict as a "collective
action" resisting an "aggression" identified as such by the
Security Council.15 By cloaking their operations in the mantle
of the United Nations, these governments were able, among other
advantages,16 to claim that theirs was a "just war" and, as a
consequence, that non-belligerent states were not free to assume
the traditional rights and duties of neutrals but were, rather,
obligated to "tilt" in favor of the U.N. side.17
For their part, the DPRK, the PRC, and their supporters preferred
to characterize the conflict as an internal Korean one. In such
a "civil war," they argued, no foreign forces could properly
intervene, and the United Nations had no proper role.18 This
position was one of the reasons that the PRC chose to cloak its
intervention in the guise of "volunteers."
Neither side's legal position, however, stood up to scrutiny.
The recommendatory, rather than mandatory character of the
Security Council resolutions authorizing a "unified command,"
adoption of these resolutions in the fortuitous absence of a
Permanent Member (the Soviet Union) that was known to oppose
them, failure of the UNC structure to follow the procedures
specified in Chapter VII of the Charter for United Nations
"enforcement actions," and lack of any explicit Charter basis for
the General Assembly's Uniting for Peace resolutions caused most
observers to conclude that the action in Korea was not an action
"of the United Nations" but, at most, an action "sanctioned by
the United Nations," or "under the auspices of the United
Nations."19 By the same token, the contention of the Communist
side to the Korean hostilities that this was a "civil" conflict
in which the U.N. side was impermissibly intervening was
untenable, at least after the PRC's intervention.20
Despite their carefully formulated legal positions, moreover, all
of the belligerents were compelled in practice to rely on the
customary law of war as the hostilities progressed. The UNC, the
DPRK, and the PRC forces all specifically stated that they would
abide by the law of war (jus in bello) in the conflict, and all
at one time or another demanded that their antagonists also abide
by that law.21 In applying the embargo recommended by General
Assembly Resolution 500(V), the U.N. forces scrupulously applied
the traditional legal distinctions between belligerents and
neutrals.22 And because the USSR and the PRC were ostensibly
neutrals, it was the policy of the U.N. forces - although
apparently observed as often in the breach as in the rule - to
avoid hostile actions with respect to Soviet and Chinese
territory.23
C. THE PARTIES TO THE KOREAN WAR
1. The United Nations Side
Security Council Resolution 84(V) of July 7, 1950, authorized a
"unified command under the United States." The United States
interpreted this authorization as constituting the United States
itself, in its sovereign capacity, as the "Unified Command."24
Fifteen nations other than the United States contributed forces
to serve under the Unified Command.25 The United States then
created, as an entity theoretically separate from and subordinate
to the Unified Command, the "United Nations Command," which it
described as an "international field force" conducting the actual
hostilities.26 The military contingents from other participants
were placed directly under the UNC,27 and the ROK placed its
troops under the operational command of the UNC.28
Throughout the conflict, the United States and its allies
emphasized the U.N. character of their actions. Secretary of
State Acheson described the Korean operations as being "under the
aegis of the United Nations and ... not a question of the whole
series of nations acting independently to the same result."29
The U.N. Commander generally characterized his forces as "United
Nations forces," and various of the contributing states made
clear that their offers of assistance were to the United
Nations.30 One leading legal commentator has concluded that:
"There can be no doubt that, in practice, the overwhelming
majority of states involved in the Korean action were fully
prepared to regard it as a United Nations action involving United
Nations Forces."31
Many actions of the United Nations can also be cited to support
the view that the United Nations itself regarded the forces under
the UNC as "United Nations forces." At least three General
Assembly resolutions (Nos. 376(V), 483(V), and 498(V)) referred
to them as such. And Security Council Resolution 84(V)
specifically authorized the "unified command" to fly the U.N.
flag.
Based on such evidence, one could argue that the United Nations
itself was a belligerent in the Korean War.32 In practice,
however, the United Nations exercised no control over the combat
forces in Korea.33 The United States made all important combat
decisions, either alone or in consultation with the other
military participants on the U.N. side.34 The "Unified Command,"
i.e., the U.S. Government, sent reports to the United Nations
only after the fact.35
Based in large part on this lack of operational U.N. control over
any aspect of the hostilities, most observers, including the
leading U.S. Government expert on the law of war at the time,
have concluded that the forces under the UNC, "although endowed
with the name and flag of the United Nations troops, cannot in
strict law be said to comprise United Nations troops, ... [and]
the acts of the Unified Command and the United Nations Command
are not the acts of the United Nations itself."36 These
observers prefer to treat the forces under the UNC as sui
generis: neither U.N. forces strictly speaking nor autonomous
national contingents but a unique combination of the two. Still
other commentators, because of the infirmities of U.N.
authorization for the U.N. forces, and because those forces were
autonomous from the United Nations itself, go one step further
and treat those forces as an alliance of national armies pure and
simple, operating pursuant to the collective right of self-
defense recognized by Article 51 of the Charter and customary
international law.37
2. The Role of South Korea
The insistence of the U.N. participants on fighting under at
least the auspices of the United Nations also called into
question the position of the ROK. The obvious victim of the
aggression that started the war and the bearer of the brunt of
the casualties on the U.N. side,38 the ROK had been recognized by
the U.N. General Assembly prior to the war as the legitimate
government in the part of Korea that it controlled.39
Nevertheless, because ROK armed forces were placed directly under
the UNC, effectively placing U.S. officers in command of South
Korean troops, the political position of the ROK in the conflict
was obscured. This was compounded when the Armistice Agreement
was signed for all participants on the U. N. side by the U.N.
Commander, i.e., a U.S. general, and the ROK, in contrast to the
DPRK, did not itself sign the Armistice.
3. The Communist Parties to the Korean War
The status of the Communist forces was subject to other
uncertainties. The DPRK was not recognized as a de jure
government of an independent state. In order that it could be
regarded as a responsible party for applying the laws of war and
as a potential party to the Armistice, it was necessary that the
DPRK be accorded some form of legal status or "personality." The
U.N. side therefore implicitly recognized the DPRK as a
"belligerent" (a sort of de facto recognition for purposes of the
law of war), although the articulations of even this position
were somewhat ambiguous.40
More problematic was the PRC's characterization of its millions
of troops as "volunteers." The PRC so characterized its
participation in the conflict for several reasons: to preserve
the Communist characterization of the war as a "civil war"; to
preserve its position that the PRC did not intervene in the
internal affairs of other states; and, most importantly, to
ensure that its participation in armed hostilities was confined
to Korea.
The General Assembly specifically rejected the PRC's
characterization of its role when it found in Resolution 498(V)
that the PRC was itself an "aggressor" in Korea.41 The PRC, too,
repeatedly contradicted its own position, for example when it
appeared at the United Nations to defend Chinese intervention on
the grounds of self-defense,42 or when it made demands by
diplomatic note that third parties observe neutral duties.43 For
present purposes, the important consideration is that China's
solicitude for its ostensible neutrality and the unwillingness of
the other belligerents to confront China on the issue led to the
Commander of the "Chinese People's Volunteers" signing the
Armistice.
A. THE ARMISTICE AGREEMENT AND THE GENEVA CONFERENCE
On July 27, 1953, the Armistice Agreement was signed by General
Mark W. Clark, Commander-in-Chief of the UNC, Marshall Kim Il
Sung, Supreme Commander, Korean People's Army, and Peng Teh-Huai,
Commander of the Chinese People's Volunteers. The Preamble
states that the objective of the Armistice is to "ensure a
complete cessation of hostilities and of all acts of armed force
in Korea until a final peace settlement is achieved...." It
further states that the "conditions and terms [of the Armistice]
are intended to be purely military in character and to pertain
solely to the belligerents in Korea." Paragraph 60 of the
Agreement provided that "the military commanders of both sides
hereby recommend to the governments of the countries concerned on
both sides that ... a political conference of a higher level of
both sides be held...." Paragraph 62 provided that the Armistice
"shall remain in effect until expressly superseded . . . by
provision in an appropriate agreement for a peaceful settlement
at a political level between both sides."44
On August 28, 1953, the General Assembly passed a resolution
"noting with approval the armistice agreement."45 The General
Assembly "welcomed" the holding of a peace conference as
contemplated by Paragraph 60 of the Armistice Agreement and
recommended that:
"The side contributing armed forces under the Unified Command in
Korea shall have as participants in the conference those among
the Member States contributing armed forces pursuant to the call
of the United Nations which desire to be represented, together
with the Republic of Korea. The participating governments shall
act independently at the conference with full freedom of action
and shall be bound only by decisions or agreements to which they
adhere..."
Resolution 711(VII) further recommended that the Soviet Union
"participate in the Korean political conference provided the
other side desires it."
Initial attempts at Panmunjom to arrange a political conference
were unsuccessful.46 In February 1954, the foreign ministers of
the United States, the United Kingdom, France, and the Soviet
Union agreed that a conference would be held at Geneva in April
to discuss a peaceful settlement of the Korean question. They
proposed that the participants be themselves, the two Korean
governments, the PRC, and "the other countries the armed forces
of which participated in the hostilities in Korea...."47
The Geneva discussions on Korea lasted from April 26 until June
15, 1954.48 All of the states that had contributed armed forces
to the UNC except South Africa participated.49 The talks soon
foundered on basic issues, however, and were not resumed.50
B. THE NATURE AND SCOPE OF THE KOREAN ARMISTICE AGREEMENT
The Korean Armistice Agreement, both in form and content, closely
follows the pattern of a general armistice agreement under
customary international law. It is between military commanders,
and its principal intention is to cease all hostilities between
the belligerents.51 The most significant feature of a general
armistice agreement under customary international law is that it
does not terminate the state of war.52 Most authorities have
concluded that this general rule applies to the Korean Armistice
Agreement, which expressly contemplates that it will continue
until superseded by an appropriate political agreement, and that
the Korean War therefore still continues as a legal matter.53
The persistent state of belligerence at the border and the
recurrence of numerous minor armed hostilities there strongly
reinforce this view.
It should be noted that this view of the Armistice is not
universally held. A number of scholars have questioned whether
belligerent rights can continue after the conclusion of an
armistice in light of the U.N. Charter's prohibition on the use
of force in international relations.54 Several have therefore
suggested that the passage of a sufficient amount of time may
turn a general armistice into a de facto peace treaty and have
specifically applied this theory to the Korean Armistice.55 This
view is more plausible with respect to the belligerents on the
U.N. side who have long ceased to have any active role in the
hostilities or the Armistice; it does not fit well the
governments - the DPRK, the ROK, and the United States - that
have continued to maintain for more than four decades heavily
armed military units confronting one another across the DMZ. The
Security Council has, in any event, recently indicated56 that it
considers the Armistice as still in force, and this should dispel
any doubt on the matter.
C. THE PARTIES TO THE KOREAN ARMISTICE AGREEMENT
The Korean Armistice Agreement is signed by military commanders
and is stated to be "purely military in character" (Preamble).
Nevertheless, international law has consistently regarded general
armistices as of such political significance that they can only
be concluded on behalf of the sovereignty of the state.57 As a
consequence, although almost invariably signed by military
commanders, as in the Korean case, general armistices are
universally recognized as binding states.58 Which states are
bound is less clear. The Armistice is studiously ambiguous in
this regard, referring to "the governments of the countries
concerned" (para. 60), a "political conference of both sides"
(id.), and a "peaceful settlement at a political level between
both sides" (para. 62).
The relationship of the DPRK to the Korean Armistice Agreement
conforms to the traditional rules of international law most
clearly. Although signed by Kim Il Sung in his capacity as
military commander, the Agreement clearly binds the DPRK as
such.59
The statuses of the "United Nations Command" and the "Chinese
People's Volunteers" are more problematic. By all objective
criteria, the PRC itself was a belligerent in the hostilities.
This belligerent status, the rule of customary international law
that the parties to general armistices are states and not
military authorities, and the PRC's participation in the 1954
Geneva Conference argue persuasively for considering the PRC
itself as a party to the Korean Armistice Agreement. The PRC,
moreover, implicitly conceded the point in a series of diplomatic
notes invoking rights under the Armistice, which were sent by the
Ministry of Foreign Affairs through the British Embassy in
Beijing to "the Governments of the other countries on the United
Nations Command side."60 Nevertheless, China's insistence during
the hostilities that it was not a belligerent, and the
acquiescence of most of the U.N. side, at one time or another, in
that position, gives rise to some ambiguity on this issue.
Throughout the hostilities, the United States and other
participants in the UNC maintained that it was the United Nations
itself that was engaged in the hostilities. This and the fact
that the Armistice Agreement is signed by the "Commander-in-
Chief, United Nations Command" have sometimes caused observers to
conclude that the United Nations is a party to the Agreement.61
Conversely, the DPRK has long argued that the U.N. Commander was
a U.S. general, that it was, therefore, the United States alone
that adhered to the Agreement, and that none of the other
participants in the UNC, including the ROK, can properly
participate in negotiations to supersede the Armistice
Agreement.62
The evidence, however, supports neither position. Paragraph 60
of the Armistice specifically suggests that "the governments of
the countries concerned on both sides" hold a "political
conference of a higher level of both sides ... to settle through
negotiation the questions of the withdrawal of all foreign forces
from Korea, the peaceful settlement of the Korean question, etc."
It thus clearly contemplates that the governments of individual
participants, rather than the United Nations, are the real
parties in interest here.
The United Nations agreed. General Assembly Resolution 711(VII)
of August 28, 1953, recommended that the United Nations side in
Korea be represented at a Peace Conference by "the Member states
contributing armed forces pursuant to the call of the United
Nations ..., together with the Republic of Korea." The General
Assembly declined to give any direction to those governments,
recommending further that "the participating governments shall
act independently at the conference with full freedom of action
and should be bound only by decisions or agreements to which they
adhere." In accordance with this directive, 16 of the 17 U.N.
belligerents, including the ROK, participated in the Geneva
Conference as independent governments, with no direction or
guidance from the United Nations.63
The clear implication of these events is that the UNC signed the
Korean Armistice Agreement as the military representative of all
of the governments whose forces actually participated in the
hostilities, including the 17 participants in the UNC. The
United Nations itself is not a party to the Agreement.64 This
interpretation of who the "real parties" on the U.N. side are was
also implicitly accepted by the DPRK, the PRC, and the Soviet
Union by their participation in the Geneva Conference.
As it became clear that permanent peace arrangements were not
likely to supersede the Armistice Agreement soon, the United
States began disassociating its forces in Korea from the UNC and,
after 1954, justified their continued presence in Korea under the
U.S./ROK Mutual Defense Treaty.65 Other governments
participating in the UNC withdrew most or all of their forces in
the mid-1950's. By 1975, there were altogether only 300 troops
under the UNC.66 In June of that year, the United States
informed the Security Council that it was ready to terminate the
UNC on January 1, 1976. The United States proposed that military
officers of the United States and the ROK be designated as
successors-in-command to the UNC in accordance with Paragraph 17
of the Armistice Agreement.67 This proposal strongly implied
that the United States considered itself and the ROK as the only
continued real parties in interest to the Armistice. In response
to the U.S. proposal and to opposition to that proposal by
supporters of the DPRK,68 the U.N. General Assembly adopted two
inconclusive, and in many respects inconsistent, resolutions
generally endorsing the desirability of replacing the Armistice
Agreement with a peace treaty and of dissolving the UNC.69
In 1991, the United Nations admitted both the ROK and the DPRK as
Members. The admission of the DPRK was seemingly inconsistent
with the argument that the United Nations itself is a party to
the Armistice since, as a party to the Armistice, the United
Nations would technically still be a belligerent in armed
hostilities with the DPRK that were only suspended by the
Armistice. It would, to say the least, be anomalous for the
United Nations to admit as a Member a government technically at
war with the organization itself.70
In October 1996, the Security Council made its most definitive
statement on the status of the Armistice since its original
resolutions in the early 1950's. In response to complaints by
both Koreas concerning an incident in which a North Korean
submarine foundered on the South Korean coast, the President of
the Council made a Statement on behalf of the Council,71 which
"urge[d] that the Korean Armistice Agreement should be fully
observed" and "stress[ed] that the Armistice Agreement shall
remain in force until it is replaced by a new peace mechanism."
The Statement was approved by all Members of the Council,
including the United States and China, i.e., two of the principal
belligerents whose generals signed the Armistice. This Statement
should, therefore, effectively refute any suggestion that the
Armistice is no longer in full force and effect.
In the meantime, the most directly interested parties have taken
a number of actions bearing directly on ways to supersede the
Armistice. In February 1992, the two Koreas entered into an
"Agreement on Reconciliation, Nonaggression and Exchanges and
Cooperation between the North and South," in which they agreed,
inter alia, to "endeavor together to transform the present state
of armistice into a solid state of peace between the South and
the North and [that they would] abide by the present Military
Armistice Agreement until such a state of peace has been
realized." This undertaking was reaffirmed in a Protocol entered
into in September 1992.72
Less than two years later, however, the DPRK repudiated its
commitments to the ROK and reverted to its position that the
Armistice should be replaced by a peace treaty between the DPRK
and the United States alone.73 The DPRK also, in violation of
the Armistice Agreement, withdrew its delegates from the Military
Armistice Commission74 and reportedly pressured Poland to
withdraw from the Neutral Nations Supervisory Commission, leaving
those two institutional remnants of the Armistice Agreement all
but defunct.75
In April 1996, the United States and the ROK proposed four party
talks to replace the Armistice, to include the United States, the
ROK, the DPRK, and the PRC.76 The DPRK and the PRC both
indicated that they would consider the proposal, though neither
had taken a definitive position as of October 1996.77 Moreover,
although the ROK has sponsored the four party talk proposal, it
is unclear whether the ROK would not, in fact, prefer to resolve
the principal issues on an inter-Korean basis.78
Against this background of shifting and often ambiguous legal
positions, what steps can or should be taken to replace the
Armistice Agreement with a new agreement that will end the Korean
War once and for all? There are essentially two issues here:
What form should any new agreement take? And who should the
parties to that agreement be?
A. FORM VERSUS SUBSTANCE
The classic approach of customary international law to the
termination of a war was (1) an armistice signed by military
commanders that ended the fighting, followed by (2) a peace
treaty among the belligerent states. The Napoleonic Wars and
World War I are perhaps the best examples. There is no reason
why that should not be the case with Korea. Many of the
interested parties have specifically spoken in terms of a "peace
treaty."
Form should not, however, dictate policy. There is no compelling
reason why the Korean Armistice could not be superseded by an
agreement or agreements not expressly entitled "treaty." The
Armistice itself (para. 62) speaks only of "an appropriate
agreement for a peaceful settlement at a political level between
both sides." And the recent Statement of the President of the
Security Council,79 speaks of a "peace mechanism." Under
international law, moreover, any agreement between states,
however denominated, constitutes a "treaty" in the sense of an
agreement legally binding the parties to its terms.80
Nor need the necessary actions be limited to agreements between
states. The Security Council is empowered to determine, inter
alia, "the existence of any threat to the peace" and to "make
recommendations, or decide what measures shall be taken ... to
maintain or restore international peace and security...."
(Charter, art. 39.) Further, the "Security Council may decide
what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon
the Members of the United Nations to apply such measures." (Id.,
art. 41). All UN Members are bound to "accept and carry out the
decisions of the Security Council...." (Id., art. 25). Action
by the Security Council in support of any political resolution of
the Armistice by the interested governments would be especially
appropriate in light of the Council's (admittedly disputed) role
in the Korean War itself. Because the Council's decisions in
this regard could be drafted so as to be binding on all U.N.
Members, a Council resolution could effectively resolve any doubt
as to whether one of the belligerent parties was bound by the
resolution even if that party did not sign the operative
agreements.81
B. PARTIES TO A NEW AGREEMENT
The armed forces of some twenty different governments fought in
Korea. Since the U.N. Commander signed on behalf of all
governments participating on the U.N. side, nineteen of these
governments should properly be viewed as being parties to the
Armistice. The twentieth, the Soviet Union, was effectively a
belligerent, though not recognized as such, and it was expressly
invited by the United Nations and by the governments constituting
the U.N. side to the negotiations to participate in Geneva at
initial efforts to conclude a peace treaty. All twenty states,
therefore, with Russia presumably succeeding to the Soviet
position, could legitimately sign a new agreement. In practice,
however, the participation of some of these governments is now
much more important than that of others.
1. The Two Koreas
It should be self-evident that each of the Koreas must be a party
to any new agreement. It is simply inconceivable that any
lasting peace on the Korean Peninsula can be made without the
participation of the parties most directly interested, and the
admission of both Koreas to the United Nations now gives them a
legal status and de facto sovereign "equality" or "legitimacy."
DPRK contentions that only it and the United States are parties
to the Armistice Agreement are polemical and legally without
foundation. The ROK was one of the belligerents represented by
the U.N. Commander when he signed the Agreement. Any doubt in
this regard is dispelled by the ROK's participation in the Geneva
Conference at the recommendation of the U.N. General Assembly and
with the acquiesce of the DPRK and the PRC, and the DPRK's own
1992 agreements with the ROK.
2. The United States
Theoretically, it would be possible for the United States to
stand aside and endorse an agreement between the two Koreas. Any
uncertainties as to whether the United States were bound by the
resulting arrangements could be resolved by a combination of
unilateral U.S. undertakings82 and a Security Council resolution
binding on the United States and adopted with its support.
As a practical matter, however, it seems highly probable that all
interested governments would wish the United States to be a
direct party to any new agreement by virtue of its important
military and political position in Northeast Asia. A direct U.S.
role would seem necessary as, in effect, a guarantee of the long-
term stability of any resolution of the outstanding issues.
Legally, a direct U.S. role would also clearly be appropriate in
light of the United States' role as the "unified command" under
Security Council Resolution 84(V), its direct command role in the
fighting itself, and its intimate political and military
involvement in the maintenance of the Armistice over more than
four decades.
3. China
China, too, could in theory stand on the sidelines but is
unlikely to do so for similar political reasons. As with the
United States, China could dispel any concerns that it might be
deemed a continuing belligerent by appropriate unilateral
statements and support of a Security Council resolution. However
disingenuous, China might also invoke the ostensible "volunteer"
status of its armed forces in Korea to argue that, in fact, it
was never properly speaking a belligerent in the first place.
And, unlike the United States, China has played only a limited
role in maintenance of the Armistice in recent decades.
But China's direct involvement in the resolution of the Korean
situation would seem nearly as desirable as that of the United
States. China's own interests in the maintenance of peace and
stability on its borders and in demonstrating to the region and
the world its geopolitical significance would seem to dictate
such a role. All parties, moreover, would probably welcome
Chinese participation as giving an extra measure of stability to
both the negotiation of peace arrangements and the maintenance of
those arrangements once agreed. (Some might also think that
involving China in the establishment of important arrangements
for peace and stability in Northeast Asia would have more general
beneficial effects on inducing China to take a more responsible
role in international affairs commensurate with its political and
military importance.) China's role as one of the principal
belligerents in the fighting, the signature of the Armistice
Agreement by a Chinese general, and the PRC's prominent role at
Geneva provide more than an adequate legal justification for
making China a party to any new agreements.
4. Others
Each of the other governments that contributed armed forces to
the U.N. side is a party to the Armistice, was a participant at
the Geneva Conference (except South Africa), and has a legitimate
claim to being a party to any new agreement superseding the
Armistice Agreement. None of these other governments, however,
is necessary to a political solution to the Korean situation, and
none has had an enduring role in the Armistice. Indeed, it would
be possible to argue that the passage of time and their non-
involvement in subsequent events has eliminated the necessity for
their participation - that any belligerent status they once had
no longer exists as consequence of desuetude. The United States
might, as a courtesy to erstwhile allies, wish to notify each of
these governments of the progress of any negotiations and invite
them to endorse any agreement. But their public support and
adoption of an appropriate Security Council resolution binding on
them would seem to suffice to refute any argument these
governments continued to be belligerents vis-a-vis the DPRK or
the PRC.
One could argue that Russia, as the successor to the USSR, a de
facto belligerent and participant at Geneva, and Japan, by virtue
of its proximity and political importance in the region, would
also be appropriate parties to a final resolution of the Korean
War.83 This would, however, be a purely political consideration.
Neither country was formally a belligerent in the fighting, and
neither is a party to the current Armistice.
The most important considerations in any effort to replace the
Korean Armistice Agreement are that the Korean War be
definitively terminated and a firm basis for a lasting peace be
established. Both purposes can best be served by the four party
negotiations currently proposed by the United States and the ROK,
conjoined with an appropriately supportive resolution of the
Security Council. The two Koreas, the United States, and the PRC
were the principal belligerents in the war; they have played the
predominant roles in maintaining the Armistice; and they have the
clearest long-term interest in, and ability to contribute to, a
lasting peace in Korea. One or more agreements among those four
parties can, accordingly, effectively terminate the legal state
of armed hostilities in Korea and lay the basis for a lasting
peace. The Security Council can and should use its authority to
lay to rest the many lingering anomalies of the Korean War and,
in accordance with its Resolution 83(V) of nearly half a century
ago, finally " restore international peace and security in the
area."
1 Military Armistice in Korea, signed at Panmunjom, July 27,
1953, entered into force, July 27, 1953, 4 U.S.T. 234, T.I.A.S.
2782.
2 Proposals to replace the Armistice Agreement are summarized in
Jhe, Seong Ho. "Replacing the Military Armistice Agreement on the
Korean Peninsula?" Korea and World Affairs 19 (1995): 67
[hereafter "Jhe"].
3 Useful summaries of the facts and compilations of documents
may be found in several publications of the United States
Department of State: "Korea's Independence," American Foreign
Policy 1950-55, vol. 2, Washington, D.C.: GPO, 1957; "Korea's
Independence," Dept. Pub. No. 2933 (1947); "Korea: 1945 to
1948," Dept. Pub. No. 3305 (1948); "Peace in Korea," Dept. Pub.
No. 4771 (1952); "Armistice in Korea," Dept. Pub. No. 5150
(1953); and "The Record on Korean Unification: 1943-1960," Dept.
Pub. No. 7084 (1960). These sources will be cited hereafter as
"A.F.P." and, e.g., D.P. 2933. See also Bowett, Derek, United
Nations Forces, New York: Praeger, 1964 [hereafter "Bowett"];
Sohn, Louis B, United Nations Law, 2nd rev. ed., Brooklyn, N.Y.,
The Foundation Press, 1967 [hereafter "Sohn"]; Higgins, Rossalyn,
United Nations Peacekeeping 1946-67, vol., New York and London:
Oxford University Press, 1970 [hereafter "Higgins"].
4 S.C. Res. 82(V), S/1501, S/INF/5, at pp. 4-5.
5 A.F.P. at 2539-40; D.P. 7084 at 99-100. The fact that U.S.
forces were committed to combat before S.C. Res. 83(V)
recommended military assistance to the ROK has caused some
observers to conclude that the United States was a belligerent in
Korea without U.N. authorization. Goodrich, Leland M. and
Simons, A. The United Nations and the Maintenance of
International Peace and Security, pp. 435-36. Washington:
Brookings Institution, 1955 [hereafter "Goodrich & Simons"].
6 S.C. Res. 83(V), S/1511, S/INF/Rev. 1, at p. 5. S.C. Res.
84(V), S.1588, S/INF/5/Rev. 1, at p. 5.
7 The Soviet Union had been boycotting the Security Council
because the Republic of China, rather than the People's Republic
of China ("PRC"), was then occupying China's seat on the Council.
8 G.A. Res. 377A(V), V GAOR, Supp. 20 (A/1775), at pp. 10-12.
There was an extensive debate on the constitutionality of the
"Uniting for Peace" Resolution. See Sohn at pp. 491-509 and
sources in id. at p. 509 n.7; Bowett at pp. 290-98.
9 G.A. Res. 498(V), V GAOR, Supp. 20A (A/1775/Add. 1), Feb. 1,
1951, p. 1.
10 G.A. Res. 500(V), id. at p. 2.
11 Sohn at p. 526; Goodrich & Simons at p. 449.
12 Numerous domestic courts, in fact, drew such a conclusion in
determining, for example, the applicability of "war clauses" in
insurance contracts or for purposes of military discipline,
application of limits on trading with enemy states, jurisdiction
of maritime prize courts, effect of treaties, etc. The courts
were badly divided on this question, although their decisions
were frequently based on specific domestic laws or statutes,
rather than a determination of whether the Korean War was a "war
under international law." See the U.S., U.K., French,
Australian, and New Zealand cases cited in McNair, Arnold, The
Legal Effects of War, p.51, Cambridge: Cambridge University
Press, 1966 [hereafter "McNair"]; Leech, Noyes E., Oliver, Covey
T. and Sweeney, Joseph Modeste, eds., The International Legal
System, pp. 751-61, Mineola, N.Y.: The Foundation Press, 1973;
Lauterpacht, Hersch, "The Limits of the Operation of the Law of
War," British Yearbook of International Law 30 (1953): 22 n.3;
and Bowett, p. 53 n.13.
13 I.e., the obligations of Members to "refrain in their
international relations from the threat or use of force against
the territorial integrity or political independence of any state"
(Article 2(4)), to "give the United Nations every assistance in
any action it takes in accordance with the present Charter"
(Article 2(5)), and to "refrain from giving assistance to any
State against which the United Nations is taking preventive or
enforcement action" (id.); and the authority of the Security
Council to take "action with respect to threats to the peace,
breaches of the peace, and acts of aggression" (Chapter VII).
14 The law applicable to the initiation and termination of war,
as opposed to the jus in bello - the law applicable during
hostilities. As discussed below, all of the belligerents in the
Korean War acknowledged the applicability of the jus in bello.
15 The most famous statement was that of President Truman, who
called the war a "police action." The New York Times, 30 June
1950, p. 1. The British Government repeatedly denied that the
conflict was a war. See, e.g., 502 Parl. Deb. H.C. (5th ser.)
(1950): 292 . As late as 1956, Prime Minister Eden specifically
denied that the conflict was a war. See McNair at p. 51. See
also the Canadian statement in U.N. Doc. S/1538.
16 In addition to the reasons of international law and policy
discussed in the text, it has been suggested that the Truman
Administration did not characterize the Korean conflict as a
"war" in order to avoid the U.S. constitutional requirement that
only Congress may declare war. See, e.g., the colloquy between
Senator Gillette and Secretary Acheson in "Military Situation in
the Far East," Hearings before the Senate Comm. on Armed Services
and Foreign Relations, 82nd Cong., 1st Sess., Part 3, pp. 1936 et
seq. (1951) [hereafter "Korean War Hearings"]. The
constituionality of U.S. participation in the Korean War
continues to be a much-debated issue whenever a U.S. President
sends armed forces abroad without Congressional authorization.
See Fisher, Louis, "The Korean War: On What Legal Basis Did
Truman Act?" American Journal of International Law 89 (1995): 21.
17 See Lauterpacht, Hersch, loc. cit. at p. 206 (rejecting the
argument); Schwartzenberger, Georg, International Law as Applied
by International Courts and Tribunals, p. 97, London: Stevens &
Sons, 1957 [hereafter "Schwartzenberger"]; Norton, Patrick M.
"Between the Ideology and the Reality: The Shadow of the Law of
Neutrality," Harvard International Law Journal 17 (1975): 249,
253 n.12 [hereafter "Norton"]. Some governments wished to
characterize their use of armed force as an action of the United
Nations to avoid any implication that they recognized the DPRK.
See, e.g., the June 11, 1952 statement of the British Secretary
of State for Foreign Affairs in Parliament that "we are not
engaged in a war with the Republic of North Korea [sic] because
we do not admit that there is such a state." 481 Parl. H. C.
vol. 13, quoted in Lauterpacht, loc. cit., at 222 n.1. See also
Stone, Julius, Legal Controls of International Conflict, p. 382
n.17, Sydney, London, and New York, 1954 [hereafter "Stone"];
Norton at 265.
18 See, e.g., the Polish note of June 30, 1950, to the Secretary
General, U.N. Doc. S/1545; the statement of Soviet Representative
Malik before the Security Council on August 3, 1950, 5 U.N. SCOR
No. 24 at 3-14, No. 28 at 4-11, reprinted in Sohn at pp. 482-85.
See also, Shen, Chun-ju. "On the Indictment and Punishment of War
Criminals," People's China, no. 4 (supp.), 16 September 1951, pp.
3, 4, 6-8, reprinted in Cohen, Jerome Alan and Chiu, Hungdah,
eds. People's China and International Law, pp. 1471, 1473,
Princeton: Princeton University Press, 1974 [hereafter "Cohen &
Chiu"].
19 The literature on this subject is voluminous and well
summarized in Bowett at pp. 32-36. See also Higgins at pp. 173-
78. Leading scholars such as Bowett, McNair and Lauterpacht
accepted the U.N. character of the action with varying technical
reservations. Others, such as Kelsen and Stone, considered the
technical infirmities of the U.N. resolutions as depriving the
U.N. Command's action of any defensible U.N. auspices. See Stone
at pp. 228-37; Kelsen, Hans, Recent Trends in the Law of the
United Nations, pp. 931-38, New York: Praeger, 1951.
20 See, e.g., McNair at p. 26. Even prior to that time, the
argument enjoyed little sympathy because of the Soviet Union's
repeated sabotaging of attempts to unify Korea and its action in
arming the DPRK in an apparent attempt to achieve by force of
arms what it had been unable to achieve by diplomacy. Bowett at
p. 35.
21 See Lauterpacht, loc. cit., at p. 223; Brownlie, Ian,
International Law and the Use of Force by States, p. 400, New
York: Oxford University Press, 1963 [hereafter "Brownlie"];
Higgins at pp. 188-95.
22 See Norton at pp. 266-67.
23 Id. The United States deliberately refrained from blockading
Port Arthur and Dairen, then still Soviet-controlled, because
such an action toward a "neutral" was a casus belli. United
States' allies refused to blockade the PRC because of its
ostensible neutrality. See testimony of General Marshall, Korean
War Hearings, vol. 1, pp. 328, 483; testimony of Admiral Sherman,
id. vol. II, p. 1512. See also Norton at pp. 266-67; Verplaetse,
J. G., "The jus in bello and Military Operations in Korea 1950-
53," Zeitschrift für ausländisches und öffentliches Recht. 23
(1963): 679, 700, 719-20. Several third parties also chose to
exercise neutral rights despite the U.N.'s endorsement of one
side to the conflict. Norton at p. 267. Recently disclosed
documents indicate that, in fact, hundreds of Soviet pilots
fought for the DPRK, generally garbed in Chinese uniforms, and
that the U.S. Air Force may have routinely flown into Manchurian
air space, Holliday, Jon, "A Secret War," Far East Economic
Review, 22 April 1993, pp. 32-31.
24 The fullest explication of the U.S. position is set out in
Baxter, Richard, "Constitutional Forms and Some Legal Problems of
International Military Command," British Yearbook of
International Law. 29 (1952): 325, 332-36 [hereafter "Baxter"].
See also Bowett at pp. 40-41. The United States rejected a
proposal by the Secretary-General that the U.N. forces be
directed by a committee of participants. Higgins at p. 179.
25 Australia, Belgium, Canada, Columbia, Denmark, Ethiopia,
France, Greece, Luxembourg, The Netherlands, New Zealand, The
Philippines, South Africa, Thailand, Turkey, and the United
Kingdom. See Higgins at pp. 199-202. Taiwan's offer of three
divisions and several offers of less than a battalion were turned
down. See Note of July 1, 1950 to ROC Ambassador, A.F.P. at
2541; Bowett at pp. 39-40.
26 Many observers, presumably unaware of or confused by the two-
tiered command structure, have understandably concluded that the
UNC is the command spoken of in Security Council Resolution 84
and hence is a U.N. entity. The confusion on this point has led
to the further erroneous conclusion that, because the Armistice
was signed by the "United Nations Commander," the United Nations
itself it party to the Armistice. See, e.g., Pollack, Samuel,
"Self Doubts on Approaching Forty: The United Nations' Oldest
and Only Collective Security Enforcement Army, the United Nations
Command in Korea," Dickinson Journal of International Law 6
(1987): 1, 8-9.
27 Most military units of other nations contributing to the UNC
were integrated into U.S. Army divisions. Bowett at pp. 40-41;
Goodrich & Simons at pp. 464. After July 27, 1951, units from
Commonwealth countries were consolidated into a Commonwealth
division. Id.
28 United States Department of State, Department of State
Bulletin 23 (1950): 206. Korean divisions were generally
incorporated into U.S. corps. Goodrich & Simons at p. 464.
29 Korean War Hearings, vol. III, p. 1937. The United States
even refused to accept diplomatic communications from the PRC and
the Soviet Union concerning the conflict, insisting that they be
sent directly to the United Nations itself. Lauterpacht, supra
note 12, at p. 221 n.2.
30 The United States entered into bilateral negotiations with
the states contributing armed forces and, in some instances, with
states supplying other forms of assistance. In most such
agreements the United States characterized itself as "the
executive agent of United Nations forces in Korea." Bowett at p.
37. See, e.g., the Agreements with South Africa, 3 U.S.T. 3990,
The Netherlands, id. at 3987, Belgium, id. at 2829, Sweden, id.
at 1209, and Norway, id. at 1903.
31 Bowett at p. 47. See also Higgins at p. 178; Halderman,
"Legal Basis for United Nations Armed Forces," American Journal
of International Law 56 (1962): 971, 974-76.
32 Bowett so concludes. At pp. 45-47, 55. Lauterpacht
seemingly concurs. Oppenheim, L., Oppenheim's International Law,
pp. 224-28 ("hostilities conducted by and on behalf of the United
Nations in Korea"). Edited by H. Lauterpacht. 7th rev. ed.,
London: Longmans, 1958 [hereafter "Oppenheim"]. The Soviet
Union also alleged at the Geneva Convention of 1954 that the U.N.
was a belligerent. See "Report to the United Nations on the
Korean Political Conference at Geneva, November 11, 1954," U.N.
Doc. A/2786, 9 U.N. GAOR, Ann. at pp. 2-4, reprinted in D.P. 7084
at 187, 193. Similarly, the PRC so characterized the United
Nations in a diplomatic note of March 4, 1959, to members of the
UNC delivered through the British Embassy in Beijing. D.P. 7084
at 227-28.
33 Bowett at pp. 42-43; Baxter at p. 334; Higgins at p. 179.
34 See Goodrich & Simons at pp. 468-80. The major strategic
issue on which the United States acted without consultation with
the United Nations was the decision to advance to the Yalu with
U.N. forces. See Higgins at pp. 185 et seq. President Truman
and Secretary Acheson maintained that General MacArthur himself
made this decision, which was apparently inconsistent with his
written instructions from the President and the JCS. Acheson,
Dean. Present at the Creation pp. 452-53, New York: Norton,
1969.
35 Bowett at p. 42. Such reports by the "Government of the
United States, as the Unified Command," lasted after the
Armistice. See, e.g., Report of August 7, 1953, U.N. Doc.
S/3079, D.P. 7084 at 135; Report of August 16, 1956, U.N. Doc.
A/3167, id. at 196; Report of August 9, 1957, U.N. Doc. A/3631,
id. at 206.
36 See Baxter at p. 336. Baxter was then a major in the U.S.
Army. He subsequently became a professor at the Harvard Law
School, President of the American Society of International Law,
Editor-in-chief of the American Journal of International Law,
and, shortly before his death, a judge on the International Court
of Justice.
37 Kelsen at pp. 965-75; Stone at pp. 234-38. Similarly,
Professor Gross denied that the war was a U.N. action but, by
virtue of Security Council Resolutions 82, 83, and 84, considered
U.N. Members obligated to assist the U.N. side. Gross, Leo,
"Voting in the Security Council: Abstention from Voting and
Absence from Meetings," Yale Law Journal 60 (1951): 209, 254-55.
Eugene Rostow more recently reached a similar conclusion.
Rostow, Eugene, "Agora: The Gulf Crisis in International and
Foreign Relations Law, Continued," American Journal of
International Law 85 (1991): 506, 508.
38 The South Koreans are estimated to have suffered some 1.7
million fatalities versus 55,000 for the United States. Pollack,
supra note 26, at p. 4n. 15.
39 G.A. Res. 195, 3 U.N. GAOR at 25, U.N. Doc. A/810 (1948).
40 On the status of unrecognized governments in armed
hostilities generally and the DPRK and the PRC in particular, see
Brownlie at pp. 379-80, 397-98. On the UNC's recognition of the
DPRK and the PRC as belligerents, see Bowett at p. 35.
Recognition of the DPRK as a result of the war became a major
issue under British law in interpreting H.M.G.'s authority to
control exports (under the embargo) to "foreign states." In re
Harshaw Chemical Co.'s Patent, 41 I.L.R. 15 (1970); In re Al-Fin
Corporation's Patent, [1969] 2 W.L.R. 1405. See also the
statement of the British Secretary of State quoted in note 17,
supra.
The other modern conflict in which some belligerents have not
recognized their adversary de jure but have accorded it certain
belligerent rights de facto is the various Arab-Israeli wars.
See Brownlie at p. 398; Rosenne, Shabtai, "Directions for a
Middle East Settlement - Some Underlying Legal Problems," in
Moore, John Norton, ed., The Arab-Israeli Conflict, vol. II, pp.
777, 783-84, Princeton: Princeton University Press, 1974;
Feinberg, Nathan, "The Arab-Israel Conflict in International
Law," in The Arab-Israeli Conflict, loc. cit., vol. I, pp. 386,
455-57. See also The Case of the Fjeld, 17 I.L.R. 345, 347
(Alex. Prize Ct. 1950) (Arab states implicitly recognized Israel
in armistices).
41 Recently released Chinese documents confirm what was
generally assumed at the time: that the Chinese forces were
fully organized Chinese military units operating directly under
Chinese Government command. See Sheng. "Beijing's Decision to
Enter the Korean War," Korean and World Affairs, 19, no. 2
(1995). Virtually every scholarly commentator had previously
dismissed the PRC's position as a transparent charade. See,
e.g., Bowett at p. 43 n.66; Brownlie, Ian, "Volunteers and the
Law of War and Neutrality," International and Comparative Law
Quarterly 5 (1956): 570.
42 See statements of the PRC delegate to the Security Council,
Wu Hsiu-ch'üan, on November 28, 1950, U.N. Doc. S/PV. 527, at 96-
97, and December 16, 1950, U.N. Doc. A/C. I/661, reprinted in
Cohen & Chiu, vol. II at pp. 1469-70.
43 When ten North Korean prisoners of war escaped to Japan, the
Japanese authorities turned them back over to the United States.
The PRC protested that this violated Article 91 of the Third
Geneva Convention of 1949, which provides that an escaped POW
shall be deemed to have succeeded when "he has left the territory
under the control of the detaining power, or of an ally of the
said power." author?. "Yoshida Government Unlawfully Turns over
the U.S. Aggressors Korean POW's Escaped from Koje," New China
News Agency, 30 January 1953, reprinted in Cohen & Chiu, vol. II
at 1545.
44 Also worth noting are the provisions establishing the
"Neutral Nations Supervisory Commission" (Arts. 36-59), and the
"Neutral Nations Repatriation Commission" (Supp. Agreement). For
these purposes, Article 37 stated that:
The term "neutral nations" as herein used is defined as those
nations whose combatant forces have not participated in the
hostilities in Korea.
This was a classic definition of a "neutral" and is difficult to
reconcile with the previous position of the U.N. forces that
their participation in the hostilities was sanctioned by the
United Nations and that third parties were not entitled to be
neutral.
45 G.A. Res. 711(VII), 7 GAOR, Supp. 20B (A.2361/Add. 2) at p.
1.
46 See D.P. 5609 at 4-5.
47 The Quadripartite Communiqué of February 18, 1954, appears in
D.P. 5609 at 33; D.P. 7084 at 152; and A.F.P. at 2685. The Joint
Communiqué further stated that
Neither the invitation to, nor the holding of, the ... conference
shall be deemed to imply diplomatic recognition in any case where
it has not already been accorded.
The United States was careful to avoid implying recognition of
either the DPRK or the PRC, although such recognition would have
been virtually inevitable had the Geneva Conference resulted in a
peace treaty signed by the governments present. See Wright,
Quincy, "The Chinese Recognition Problem," American Journal of
International Law 49 (1955): 320, 330.
48 See D.P. 5609 at 5-17. The Geneva Conference was, of course,
also concerned with other issues, notably Indochina. This is of
interest in the present context since the "Geneva Accords" on
Indochina included an armistice similar to the Korean Armistice.
49 Id. at p. 5.
50 The U.N. side had demanded that any peace settlement be based
on the following two principles:
1. The United Nations, under its Charter, is fully and
rightfully empowered to take collective action to repel
aggression, to restore peace and security, and to extend its good
offices to seeking a peaceful settlement in Korea.
2. In order to establish a unified, independent and democratic
Korea, genuinely free elections should be held under United
Nations supervision, for representatives in the National
Assembly, in which representation shall be in direct proportion
to the indigenous population in Korea.
"Declaration by the Sixteen" of June 15, 1954. D.P. 5609 at 191;
D.P. 7084 at 186; A.F.P. at 2692. Point One was included to
preserve "the legality of the collective action undertaken by the
United Nations to repel the Communist aggression." See "Report
to the United Nations on the Korean Political Conference at
Geneva, November 11, 1954," U.N. Doc. A/2786, 9 U.N. GAOR, Ann.
at pp. 2-4, reprinted in D.P. 7084, at 187, 190. The Communist
side would accept neither position.
51 See Art. 36, Regulations Respecting the Laws and Customs of
War on Land, Annexed to Hague Convention No. IV, Oct. 18, 1907,
Chap. V (Annex), 36 State. 2277. On the customary international
law of armistices, see Phillipson, C. Termination of War and
Treaties of Peace, London: T.F. Unwin, 1916. See also
Greenspan, M., The Modern Law of Land Warfare, Berkeley:
University of California Press, 1959. [hereafter "Greenspan"].
52 Levie, Howard, "The Nature and Scope of the Armistice
Agreement," American Journal of International Law 50 (1956): 880,
884-85 ("armistice does not terminate the state of war existing
between the belligerents, either de jure or de facto"). See
Oppenheim, vol. II at p. 548; Greenspan at p. 386; McNair at pp.
13-14. See also, Kahn v. Anderson, Warden, 255 U.S. 1, 9 (1921)
(November 1918 Armistice did not legally end World War I). The
Permanent Court of International Justice also affirmed the rule
in The Wimbleton Case (Germany v. United Kingdom), P.C.I.J., Ser.
A, No. 1 (1923) at 35, and the French Cour de Cassation in In re
Suarez (1943-45), Ann. Dig. 412. See also the Attilio Regolo and
Other Vessels arbitration, cited in Schwartzenberger, vol. II at
p. 726; the Ahmed Emin Bey arbitration, id. at p. 733.
53 Levie, loc. cit. at pp. 892-93; von Glahn, Gerhard, Law Among
Nations, p. 557, New York and London: MacMillan, 1965. But see
McNair (at p. 29 n.1), who considers that the Korean conflict
was not legally a war in the first place and hence that a state
of war did not survive the Armistice.
54 See Rosenne, Shabtai, Israel's Armistice Agreements with the
Arab States, Tel Aviv: Blumstein's, 1951; Yahuda, "The Inge Toft
Controversy," American Journal of Internal Law 54 (1960): 398;
Wright, Quincy, "The Middle East Problem," in Moore, supra note
40, vol. II at pp. 828, 823. See also discussion in Gross, Leo,
"Passage Through the Suez Canal of Israel-Bound Cargo and Israel
Ships," in id., vol. I, at pp. 863, 876-82; Selak, Charles B.,
Jr., "Legal Status of the Gulf of Aqaba," in id., vol. I at pp.
697, 718-21.
55 Schwartzenberger, vol. II, at pp. 730-31; McNair at pp. 14-
15, 29; Stone at p. 646; Castren, E. J. S., The Present Law of
War and Neutrality, p. 131, Helsinki: Suomalainev Tiedeakemia,
1954. In the only other instance in which this issue has arisen,
the 1949 armistices between Israel and the Arab States, the
armistices between Egypt and Israel and Egypt and Jordan have
been expressly superseded by peace treaties. Syria has continued
to maintain that it is in a state of war with Israel despite the
armistice.
56 See Section III, infra.
57 The principle was stated as early as the 18th century by
Vattel:
The conclusion of a general armistice is a matter of such
importance that the sovereign is always presumed to have reserved
it to himself.
Vattel, Emmerich de. The Law of Nations, vol. III, sect. XVI, p.
237, 1758., quoted in Levie, op. cit., at p. 883 n.19.
58 Levie, op. cit., at p. 883; Oppenheim at p. 550; Greenspan
at p. 386.
59 By entering into the Armistice with the DPRK, the
participants in the UNC recognized that government as a
belligerent, although not necessarily a state. See
Schwartzenberger, vol. II, at pp. 728-29. See also German
Interests in Polish Upper Silesia (merits) (Poland v. Germany),
P.C.I.J. Ser. A. No. 7, at 27-28 (Poland could not rely on
November 11, 1918 Armistice because Germany did not recognize it
as a belligerent at that time).
60 See notes reprinted in D.P. 7084 at 216, 218, 223, and 227.
61 For example, in discussing the Pueblo incident, one scholar
apparently believed that the United Nations was formally party to
the Armistice and felt compelled to argue that the United States
should also be treated as a party because of its participation as
a belligerent in the war. Butler, William E., "The Pueblo
Crisis: Some Critical Reflections," Proceedings of the American
Society of International Law 7 (1969): 11.
62 In fact, from 1962-74, the DPRK argued that the two Koreas
should sign a peace treaty. When South Korea accepted this
proposal in 1974 by offering to sign a non-aggression pact, the
DPRK changed its position and argued that only the United States
was properly the other party to a peace treaty, a position it has
since continued to maintain. See Jhe at p. 69.
63 A report on the Conference was filed by "the Governments
which participated in the United Nations action in Korea." See
Report, supra note 50. The report is ambivalent in that it
clearly distinguishes the participant governments from the UNC
and the United Nations, on the one hand, and yet characterizes
the war as a "United Nations action," on the other.
64 The most percipient of the commentators on these arrangements
has rightly observed that this approach to the Armistice
contradicts the position taken by the U.N. side throughout the
conflict itself and represents a deliberate volte face by the
United States and its allies. Bowett at pp. 52-53. It has been
suggested that this volte face reflected a change in U.S.
administrations, President Eisenhower being willing to
disassociate the United States and its allies from the United
Nations when President Truman was not. Frye, A. United Nations
Peace Force, p. 57, New York: Oceana, 1957.
65 The United States signed a Mutual Defense Treaty with the
ROK, 5 U.S.T. 2368, T.I.A.S. 3097, 238 UNTS 199, on October 1,
1953, i.e., approximately ten weeks after the Armistice and six
months prior to the Geneva Conference. The MDT entered into
force November 17, 1954. The DPRK concluded separate mutual
security treaties with the Soviet Union and China in July 1961.
66 See statements of Ambassadors Moynihan and Bennett in United
States Department of State, 1975 Digest of United States
Practice in International Law, pp. 824 and 826-27. Washington,
D.C.: GPO, 1975.
67 Id. at 820, et seq. The United States noted that, under the
terms of Paragraph 17, such a change would require the prior
agreement of the other signatories to the Armistice. In the
course of discussions of the competing resolutions, Ambassador
Moynihan submitted a letter to the Security Council advising it
that "the United Nations flag no longer flies over military
installations in the Republic of Korea except at facilities
directly associated with the implementation of the armistice
agreement...." Id. at 826-27.
68 The DPRK submitted a memorandum to the General Assembly
arguing that it and the United States were the only proper
parties to the Armistice. U.N. Doc. A/C. 1/1054, Sept. 24, 1975,
at 12.
69 By a vote of 59 to 51, with 29 abstentions, the General
Assembly adopted Resolution 339OA (XXX), which expressed the hope
"that all the parties directly concerned will enter into
negotiations on new arrangements designed to replace the
armistice agreement ...," and urged "all the parties directly
concerned, as a first step, ... [to] embark on talks as soon as
possible so that the United Nations Command may be dissolved
concurrently with the arrangements for maintaining the armistice
agreement." At the same time, the General Assembly also passed,
by a vote of 54 to 43, with 42 abstentions, Resolution 339OB
(XXX), which "considered" that "it is necessary to dissolve the
'United Nations Command' and withdraw all the foreign troops
stationed in South Korea under the flag of the United Nations."
It called upon the "real parties to the armistice agreement to
replace the Korean military armistice agreement with a peace
agreement...." The sponsors of Resolution 339OB suggested that by
"real parties to the armistice agreement" they intended the DPRK
and the United States, specifically excluding the ROK. See 1975
Digest, supra note 66, at 824.
70 In 1993, U.N. Secretary General Boutros-Galli was quoted on
at least two occasions as averring that a "peace treaty" among
the "parties to the Armistice" should be negotiated, and that the
Security Council should dissolve the UNC - again, seemingly
indicating that the United Nations viewed itself as a neutral
party to the conflict and the Armistice. Jhe at p. 71.
71 Security Council Press Release SC/6279, October 15, 1996.
72 See Jhe at p. 77.
73 See id., passim.
74 On May 24, 1994. See Jhe at p. 67-68.
75 Czechoslovakia had previously withdrawn, leaving the Neutral
Nations Supervisory Commission with a skeletal staff of some 20
Swiss and Swedish soldiers. Knipp, Steven. "In Harm's Way," Far
Eastern Economic Review, 15 August 1996, p. 52.
76 The New York Times, 16 April 1996, p. 8.
77 The New York Times, 19 April 1996, p. 4.
78 For a South Korean viewpoint that only the two Koreas should
be parties to a solution, see Jhe at p. 76 ("the two Koreas are
the legal and actual parties to the Armistice Agreement").
79 See text at note 71.
80 See Vienna Convention on the Law of Treaties, art. 2(1)(a),
signed at Vienna May 23, 1969, entered into Service January 27,
1980, U.N. Doc. A/CONF. 39/27 (1969), reprinted in American
Journal of International Law 63 (1969): 875.
81 Compare the end of the Gulf War. In that instance, Iraq
signed a truce with the military commanders of the allied
coalition. The Security Council then adopted its Resolution 687
setting out the terms of a permanent cease fire. Iraq accepted
those terms in writing, and the Security Council formally
declared the cease fire to be in effect a few days later. There
was no peace treaty or other final agreement among the
belligerents; the Security Council, in effect, was able to impose
a supervening legal mechanism. The Gulf War events are
summarized in Rostow, supra note 37, at 509.
82 Note that unilateral undertakings can sometimes constitute
binding obligations of states. Nuclear Test Case (Australia v.
France), 1974 I.C.J. 253, 267 ("declarations made by way of
unilateral acts, concerning legal or factual situations, may have
the effect of creating legal obligations").
83 The Bush Administration in fact proposed in 1991 "six party
talks" among the two Koreas, the United States, China, Japan, and
Russia. The other parties, however, demonstrated no public
interest in the proposal. The New York Times, 17 April 1996, p.
13.
Your are invited to participate in this "virtual forum" by
considering the questions below, or collecting any other thoughts
you have after reading the paper, and then emailing your comments
to: napsnet@nautilus.org
1. Is the Korean conflict most properly characterized as an
international or a civil war? Norton finds fault in both the
former position (the premise of UN involvement) and the latter
position (held by the DPRK and PRC). What bearing does this
problem have on strategies for pursuing peace on the Korean
peninsula today?
2. Norton argues that the four-party peace talks proposal
represents an accurate grouping of the major parties to the
conflict "in practice." Given the formal UN role as a party to
the war and the Armistice, ought there be a role for the UN in
any negotiations toward a peace treaty? In particular, what role
might the UN Command allies such as the UK or Australia play in
the UN debates which may occur over a proposal to end the
Armistice?
3. Norton notes that the UN abrogated its own charter to involve
itself in Korea, that it had no actual control over combat forces
during open hostilities, that the UN had no role in the Geneva
conference following the Armistice, and that today the DPRK is
now a UN member. Do these considerations obviate any UN role in
such negotiations?
4. Norton notes that during hostilities ROK forces were
effectively under US control, and that the ROK (unlike the DPRK)
was not a formal party to the Armistice. Yet he also argues that
the DPRK's insistence that negotiations for a peace treaty
include the US but not the ROK are "polemical and without legal
foundation," given the ROK's role since the Armistice. Does the
DPRK position have a credible legal basis?
5. Is a formal peace treaty required to bring peace to the Korean
peninsula? Norton notes that a peace treaty customarily follows
an armistice, and that many interested parties have expressed
such a need. However, he also notes that an armistice may evolve
over time into a de facto peace treaty (although this has not
happened among the major belligerents in Korea). Might more of a
political focus (ie. toward a "detente" rather than a treaty)
ultimately prove more constructive than continued abortive
efforts to convene formal negotiations?
6. How do decisions regarding bringing a formal peace to the
Korean peninsula bear on the objective of Korean unification?
7. The Soviet military fought in the undeclared war, although
Moscow denied US allegations at the time. Does this provide the
legal or realpolitik basis for Russian participation in
negotiatons to end the Armistice, given the argument that the ROK
obtains such a right by virtue of its military participation in
the fighting on the Peninsula.
THE LEGAL ISSUES
Patrick M. Norton currently is a partner in the law firm Alston &
Bird, in Washington, D.C. He previously worked for the U.S. State
Department studying the legal aspects of ending the Korean Armistice, and
is uniquely qualified to provide a U.S. perspective on this topic.
CONTENTS
ABSTRACT
INTRODUCTION
I. LEGAL INTERPRETATIONS OF THE KOREAN WAR
II. THE ARMISTICE AGREEMENT
III. EVENTS SUBSEQUENT TO THE GENEVA CONFERENCE
IV. SOLUTIONS
V. CONCLUSIONS
NOTES
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