The dramatic rapprochement between the two Koreas symbolized in last month’s summit between North Korean leader Kim Jong Un and South Korean President Moon Jae-in has left observers with some mix of hope and caution. The summit’s visual symbolism and emotional rhetoric evoked the desire of a divided nation to be whole.
Obviously, one critical step in that process is to bring a formal end to a conflict that is now in its seventh decade. In the Panmunjom Declaration signed by both leaders during the summit, there is a commitment “to declaring an end to the [Korean] War and establishing a permanent and solid peace regime.”
Many commentators have accurately noted that this stated desire to implement a peace treaty is not new, and is consistent with pronouncements made by the two Koreas during previous periods of openness and dialogue.
Assume, however, that the outcome this time will be more sanguine, how do you actually end a war, especially one where there is no clear-cut triumphant combatant? What are some of the actual steps that need to be taken to replace the Armistice Agreement with a permanent peace treaty?
The Armistice Agreement that froze hostilities during the Korean War required 158 meetings over a roughly two year period. Consequently, the Armistice Agreement is generally considered to be the longest negotiated cease-fire in history. Despite that effort, it was seen as temporary: China, North Korea, and the United States, representing the United Nations Command, were the only signatories. With a desire for a unified Korea, then-South Korean President Syngman Rhee refused to be a party to the Armistice Agreement.
Technically, it was a civil war, fought by two proto-nation-states in the context of a broader geopolitical struggle of the Cold War
Historically, when hostilities begin a country formally declares war. At the end of the war, a peace treaty would end hostilities, address matters related to the cause of the war, and perhaps include provisions that govern the post-war relationship between the combatants with a focus on transitioning from war to peace. International law scholars refer to the last component as jus post bellum, justice after war.
The Korean War, however, was different. Technically, it was a civil war, fought by two proto-nation-states in the context of a broader geopolitical struggle of the Cold War. In many ways, the Korean War also signaled a shift in legal aspects of modern conflict. For example, there was no declaration of war, which was perhaps best captured by President Harry Truman’s declaration that the Korean War was a “police action.”
Additionally, the Korean War was the first instance that the United Nations invoked collective security or collective use of force under the auspices of the United Nations charter. Security Council Resolution 83 characterized North Korea’s invasion as “a breach of the peace” and called on members to assist South Korea in repelling North Korea’s attack.
Subsequently, Security Council Resolution 84 placed United Nations Command under the direction of the United States. Interestingly, neither of the Koreas were United Nations member. It was not until 1991 that both Koreas simultaneously joined the United Nations.
At its most basic level, a peace treaty to end the Korean War is simple, requiring two obvious elements. First, unlike the Armistice Agreement, South Korea would have to be a signatory to the treaty. Second, the treaty must include language that formally ends the conflict and binds all signatories to peace and security. Once signed, the peace treaty should be registered with the United Nations Secretariat and become part of the United Nations Treaty Series.
With the restoration of peace and security on the Korean peninsula legally achieved, the General Assembly or the Security Council will likely pass a resolution noting that the purpose of Security Council Resolution 83 has been fulfilled following completion of the peace treaty.
The Korean War was different than previous wars, and the treaty to bring its peace must also be unique
This would logically lead to questions about the continued existence of the United Nations Command that was created by Security Council Resolution 84. On this point, there has been some interpretative commentary by the United Nations that indicates the United Nations Command could legally continue in existence even after the conclusion of a peace treaty.
The question regarding the status of the United Nations Command following a peace treaty is just the beginning of a myriad of questions that not only have a direct impact on the language of the peace treaty but will also influence most of the extant issues that will remain among the signatories even after peace is formalized.
As mentioned earlier, the Korean War was different than previous wars, and the treaty to bring its peace must also be unique. For instance, most peace treaties are promulgated usually fairly close in time to the end of open hostilities between combatants. In the case of the Korean War, however, though there have certainly been violent flare-ups, widespread combat ended over a half-century ago.
Given that, a possible peace treaty to end the Korean War can possibly take at least two approaches. One is the simple approach explained above, which is essentially a basic, straightforward document that simply serves to formally end the conflict.
Any other issues that might need to be addressed, such as the prospect of mutual disarmament, being reserved for separate discussion and agreement between the two Koreas or depending on the issue, inclusive of the United States and China, as the case may be.
The simplicity and speed of this approach would allow both Kim and Moon to achieve their desired goal of ending the Korean War this year. Of course, this approach raises a host of questions, namely the continued status of United States forces in South Korea and perhaps elsewhere in the region, as well impact efforts to achieve North Korean denuclearization.
Such an agreement might accept the continued presence of United States forces in South Korea
A possible second approach is to use the peace treaty as a tool to not only end the war but to also lay the foundations for governing the peace. The philosopher Augustine wrote in “The City of God” that “peace is the desired end of war” and in true jus post bellum tradition, a peace treaty provides an opportunity to meaningfully shape the post-war relationship between the North and South.
For example, such an agreement might accept the continued presence of United States forces in South Korea.
Negotiating such a treaty would certainly result in a more complex and time-intensive document, but would offer the first step in transitioning much of the dramatic rhetoric that has accompanied the rekindling of the divided nations’ relationship into a political and legal reality.
At the end of the Armistice Agreement, there is a reference to holding a political conference within three months of its signing to determine the peaceful settlement of the Korea question. This never happened, of course.
Admittedly, there are a number of complicating factors to making this settlement a reality, but it has been 65 years since the Armistice Agreement was signed. None of its drafters nor its signatories must have imagined that the question of peace on the Korean peninsula would remain unresolved so far in the future.
Edited by Oliver Hotham
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