Thursday, June 7, 2018

The Korean Armistice, ROK/US Mutual Defense Treaty and A Declaration of the End of the Korean War


As we speculate about the possibility of a declaration of the end of the Korean War at the June 12th summit in Singapore I was asked what may be the outcome and effects of such a declaration.  So i thought I would provide some background along with my layman's analysis.  I am not legally trained or an international lawyer but I did once stay at a Holiday Inn Express so please take this with a grain of slat. I expect that there could be a number of different perspectives on these issues.

Specifically I was asked what will this mean for the United Nations Command (UNC) , the ROK/US Combined Forces Command (ROK/US CFC) , and United States Forces Korea (USFK)?  Will any or all commands be disbanded and will any or all US forces leave the ROK?

I think we should acknowledge that such a declaration will not have the force of international law as in a treaty or peace agreement.  While a declaration would be good symbolically and for the start of a process there will be a lot of work that will need to be done to put into place mechanisms that will ensure the peace and specific agreements negotiated that will allow the political leaders (heads of state/government and their legislatures) to get approval in accordance with their national processes.

In regards to the Korean situation this is untested international law.  It will be interesting to see how all this plays out.  

The Armistice:

Note that Nam Il signed for nK and for the CPV and Harrison for the UN.  They were the signatories present at the signing.  Kim, Peng, and Clark signed later.  However, these are all military leaders signing a military agreement to suspend hostilities.  The armistice is not a political document.  Also note that neither China nor north Korea were members of the UN (neither was the ROK but the UN intervened to stop aggression against the South)

Note also that all electronic versions of the Armistice at State or at Yale or Cornell in their legal repositories only have Nam Il's  and Harrison's signature blocks.  See the State Department version here: https://2001-2009.state.gov/t/ac/rls/or/2004/31006.htm As noted Kim, Peng, and Clark all signed at a later time.  But again this was a military document between two sides fighting the war and not a political document.

So we should remember that the Armistice was an agreement between military commanders and only covered a handful of actions or conditions:

* A suspension of open hostilities
* A fixed demarcation line with a 4km (2.4 miles) buffer zone - the so-called demilitarized zone (DMZ)
* A mechanism for the transfer of prisoners of war

Both sides pledged not to "execute any hostile act within, from, or against the demilitarized zone", or enter areas under control of the other.

The agreement also called for the establishment of the Military Armistice Commission (MAC) and other agencies to ensure the truce held.

The MAC, which comprises members from both sides, still meets regularly in the truce village of Panmunjom.

As a side note, but an important one, the Northern Limit Line (NLL) was established separate from the Armistice as a control measure for how far ROK vessels could go north.  It was established around the Northwest Islands which remained under UN Control after the war.  The NLL is not an internationally recognized boundary and is not part of the Armistice; however, the ROK has treated it as a de facto boundary and the north has also challenged it as a boundary.  As we all know this area has been the location for numerous naval conflicts between north and South.

It is only paragraph 60 of the Armistice that recommends that political parties resolve the "Korea question." (the division of the peninsula - remember at the time north Korea was not a legitimate nation).

Recommendations to the Governments Concerned on Both Sides

60. In order to insure the peaceful settlement of the Korean question, the military Commanders of both sides hereby recommend to the governments of the countries concerned on both sides that, within three (3) months after the Armistice Agreement is signed and becomes effective, a political conference of a higher level of both sides be held by representatives appointed respectively to settle through negotiation the questions of the withdrawal of all foreign forces from Korea, the peaceful settlement of the Korean question, etc.

It is paragraph 62 that explains how it the Armistice is replaced:

61. Amendments and additions to this Armistice Agreement must be mutually agreed to by the Commanders of the opposing sides.

62. The Articles and Paragraphs of this Armistice Agreement shall remain in effect until expressly superseded either by mutually acceptable amendments and additions or by provision in an appropriate agreement for a peaceful settlement at a political level between both sides.

(Note that per para 61 while in force it is the military commanders who must mutually agree to additions or amendments to the Armistice).

The United Nations Command:

Whether the UN Command continues to exist is up in the air.  I think that the UN Security Council resolutions 82-85 would have to be rescinded to dissolve the UN command (84 specifically established the UNC asked the US in command of the UNC).  There is nothing in the resolutions that calls for ending the UN Command.  I think the only thing that would logically happen is the Military Armistice Commission would be disestablished since that is an Armistice created organization.  Of course the ROK could ask for the UN Command to leave at any time for any reason simply by saying it no longer needs UN assistance (note that we (the US) always fight to maintain the UN command for a number of reasons, one of which are the 7 UN designated bases in Japan that will serve as ISBs and key to reinforcing the peninsula in wartime.  Another is the slippery slope that disbanding it could lead to - the dis-establishment of the ROK/US CFC and the redeployment of USFK back to the US.


We should keep in mind that the two belligerents are the north and South. The UN recognized the north's aggression against the South and called on member nations to come to its defense ("to assist the Republic of Korea" which I think is an important phrase).   The Chinese Peoples' Volunteers (an "unofficial" military organization) intervened to assist the north.

Of course if the north and South sign a peace treaty ending their hostilities it is logical to argue that the UN command should be dissolved.  But I do not think there is any international precedent for this.  Also, there is nothing in the Armistice that says the signatories of the Armistice must also sign a peace treaty.  Again international lawyers are going to hash this out but now we have two member nations of the UN (north and South) and if they choose to end the war who can stop them?  And of course once they do that all kinds of arguments will be made (like Moon Chung-in in his May 9 Foreign Affairs essay) that there is no more rationale for the UN command or US troops on the Korean peninsula.

Korea US Mutual Defense Treaty of 1953:

However, USFK and CFC exist and are present as a result of a bi-lateral agreement in the Mutual Defense Treaty of 1953. Note below that the MDT makes no mention of north Korea or the DPRK.  A peace treaty should technically have no impact on the presence of US forces and bilateral ROK/US agreements.  US troops are present by mutual agreement but if the South wants them to leave I expect we will immediately leave - we are not a nation that would occupy a sovereign country against its wishes - even if it were for its own good!! (there is also the ROK/US Terms of Reference and the Strategic Directive from the Military Committee but those are classified ROK/US only).  See the MDT below for details.  

So the jury is still out on all of this.  These are uncharted waters in my opinion. I go to the basics.  There are two belligerents, north and South, and they had a civil war wth the fighting temporarily suspended.  The UN and Chinese intervened to support the two sides.  The military commanders agreed to an Armistice to halt the fighting and to buy time for the political parties to find a resolution (Para 60).  We have been in suspended animation for almost 70 years and now we may see some kind of political movement.

One last thing. If on June 12th The US, nK and the ROK say that the war is officially ended I do not think that officially changes anything until there is a peace agreement negotiated between north and South with a mechanism put in place to ensure the peace.  I see the US and possibly the Chinese role as mere guarantors of security but I do not think they have to be signatories on a peace treaty since the US was acting for the UN and the Chinese only sent "volunteers."  The treaty obligations of both the US with the ROK and China with nK are separate agreements and do not necessarily impact on the peace treaty (they certainly do not become null and void because of a declaration of the end of the war or a peace agreement/treaty).  I also see no way for the US, China, or the UN to "veto" a peace treaty between the north and South.  I also think it would be political suicide for any party to do so.  I think a declaration of the end of the war would be symbolic only but would have tremendous political influence (and popular influence) and will likely be described by both sides as the start of the process toward CVID, normalization, lifting of sanctions, economic investment, etc.

This is my layman's analysis.  I will have to defer to the International lawyers and judges for interpretations and rulings!


Mutual Defense Treaty Between the United States and the Republic of Korea; October 1, 1953(1)
The Parties to this Treaty,
Reaffirming their desire to live in peace with all peoples and an governments, and desiring to strengthen the fabric of peace in the Pacific area,
Desiring to declare publicly and formally their common determination to defend themselves against external armed attack so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific area,
Desiring further to strengthen their efforts for collective defense for the preservation of peace and security pending the development of a more comprehensive and effective system of regional security in the Pacific area,
Have agreed as follows:

ARTICLE I

The Parties undertake to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relations from the threat or use of force in any manner inconsistent with the Purposes of the United Nations, or obligations assumed by any Party toward the United Nations.

ARTICLE II

The Parties will consult together whenever, in the opinion of either of them, the political independence or security of either of the Parties is threatened by external armed attack. Separately and jointly, by self help and mutual aid, the Parties will maintain and develop appropriate means to deter armed attack and will take suitable measures in consultation and agreement to implement this Treaty and to further its purposes.

ARTICLE III

Each Party recognizes that an armed attack in the Pacific area on either of the Parties in territories now under their respective administrative control, or hereafter recognized by one of the Parties as lawfully brought under the administrative control of the other, would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes.

ARTICLE IV

The Republic of Korea grants, and the United States of America accepts, the right to dispose United States land, air and sea forces in and about the territory of the Republic of Korea as determined by mutual agreement.

ARTICLE V

This Treaty shall be ratified by the United States of America and the Republic of Korea in accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have been exchanged by them at Washington.(2)

ARTICLE VI

This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other Party.
IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
DONE in duplicate at Washington, in the English and Korean languages, this first day of October 1953.

UNDERSTANDING OF THE UNITED STATES (3)

[The United States Senate gave its advice and consent to the ratification of the treaty subject to the following understanding:]
It is the understanding of the United States that neither party is obligated, under Article III of the above Treaty, to come to the aid of the other except in case of an external armed attack against such party; nor shall anything in the present Treaty be construed as requiring the United States to give assistance to Korea except in the event of an armed attack against territory which has been recognized by the United States as lawfully brought under the administrative control of the Republic of Korea.
[The United States communicated the text of the understanding to the Republic of Korea in a note of January 28, 1954, acknowledged by the Republic of Korea in a note of February 1, 1954. The text of the understanding was included in the President's proclamation of November 17, 1954.]
(1) TIAS 3097, 5 UST 23602376. Ratification advised by the Senate Jan. 26, 1954, and ratified by the President Feb. 5, 1954, subject to an understanding; entered into force Nov. 17, 1954. Back
(2) Ratifications were exchanged Nov. 17, 1954. Back
(3) TIAS 3097. Back

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