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An End to the Korean War: The Legal Character of the 2018 Summit Declarations and Implications of an Official Korean Peace Treaty

  • Angela Semee KIM (a1)

Abstract

Global attention to events on the Korean Peninsula has been striking in the past year. With an inter-Korean summit and an unprecedented US-DPRK summit, hopes of a final end to the Korean War have been renewed. Although these summits resulted in declarations which pronounced an end to the Korean War and an establishment of a peace regime, the declarations must not be mistaken as official peace treaties. Unlike a peace treaty, which is governed by international law, the two summit declarations are not governed by international law due to their lack of legality. Therefore, a clear distinction must be drawn between the declarations and a peace treaty. This paper aims to determine the legal status of the declarations and explain how they are merely non-binding political declarations. The paper then identifies and explores some of the legal implications of a Korean peace treaty.

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Copyright

Footnotes

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*

PhD candidate in Laws, Faculty of Law, The Chinese University of Hong Kong, Hong Kong SAR. I wish to thank Ms Kehinde Olaoye for feedback on an earlier draft. Errors and omissions remain my own.

Footnotes

References

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1. Panmunjom Declaration on Peace, Prosperity, and Reunification of the Korean Peninsula, 27 April 2018, Ministry of Unification, Republic of Korea [Panmunjom Declaration].

2. Ibid.

3. Ibid., s. 1(1).

4. Charter of the United Nations, 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) art. 2(7) [UN Charter].

5. Panmunjom Declaration, supra note 1, s. 1(2).

6. Ibid., s. 1(3)–(6).

7. YOO Jee-ho, “Koreas March Together at Opening Ceremony” Yonhap News (18 August 2018); and JUNG Min-kyung, “Tears, Hugs, Joy as Family Reunions Begin” The Korea Herald (20 August 2018).

8. Panmunjom Declaration, supra note 1, s. 2(1)-(3).

9. See Joint Civilian-Military Investigation Group (JIG), Joint Investigation Group Report on the Attack against ROKS Cheonan, Interim Report, May 2010, online: <http://news.bbc.co.uk/nol/shared/bsp/hi/pdfs/20_05_10jigreport.pdf>.

10. KIM Jack and LEE Jae-Won, “North Korea Shells South in Fiercest Attack in Decades” Reuters News (23 November 2010).

11. Panmunjom Declaration, supra note 1, s. 2(1).

12. Su-Yeol MAENG, “Loudspeakers Taken Away as of Today” The Korea Defense Daily (17 May 2018).

13. “North Korea’s Sixth Nuclear Test: A First Look” 38 North (5 September 2017), online: 38 North <https://www.38north.org/2017/09/punggye090517/>.

14. Panmunjom Declaration, supra note 1, ss. 3(1)–(4).

15. UN Charter, art. 2(4).

16. Ibid.

17. Panmunjom Declaration, supra note 1, s. 3(2).

18. Ibid.

19. Ibid., s. 3(4) [emphasis added].

20. See e.g. Victor CHA, “Does Denuclearization Mean the Same Thing to North and South Korea?” PBS News Hour (27 April 2018); Josh SMITH, “Differing Views of ‘Denuclearization’ Complicate North Korea Talks” Reuters (28 March 2018); Anna FIFIELD, “North Korea’s Definition of ‘Denuclearization’ is Very Different From Trump’s” Washington Post (9 April 2018).

21. Joint Statement of President Donald J. Trump of the United States of America and Chairman Kim Jong Un of the Democratic People’s Republic of Korea at the Singapore Summit, 12 June 2018, White House Statements and Releases [US-DPRK Joint Statement].

22. Ibid.

23. “Agency Begins Process of Identifying Korean War Remains” (31 July 2018), Department of Defense, online: US Department of Defense <https://www.defense.gov/News/Article/Article/1589082/agency-begins-process-of-identifying-korean-war-remains/>.

24. “The Punggye-ri Nuclear Test Site Destroyed: A Good Start but New Questions Raised about Irreversibility” 38 North (31 May 2018), online: 38 North <https://www.38north.org/2018/05/punggye053118/>.

25. “Kim Jong Un’s 2018 New Year’s Address” NCNK (1 January 2018), English transcript online: NCNK <https://www.ncnk.org/node/1427>.

26. Mike POMPEO, “Remarks at a Press Briefing” US Department of State (11 June 2018), online: US Department of State <https://www.state.gov/secretary/remarks/2018/06/283141.htm>.

27. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), art. 2(1)(a) [VCLT].

28. Development of Inter-Korean Relations Act, 29 December 2005, Act No. 7763 [IKRA].

29. Ibid.

30. Ibid., art. 22.

31. The Constitution of the United States of America, 17 September 1787, art. II, s. 2(2).

32. CORTEN, Olivier and KLEIN, Pierre, The Vienna Conventions on the Law of Treaties: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2011) at 379.

33. Panmunjom Declaration, supra note 1, s. 3(3).

34. Armistice Agreement: Agreement Between the Commander-In-Chief, United Nations Command, on the One Hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the Other Hand, Concerning a Military Armistice in Korea, 27 July 1953 [Armistice].

35. Ibid.

36. Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, International Peace Conference, The Hague (entered into force on 26 January 1910), art. 36.

37. UNSC Res. 82 (25 June 1950), UN Doc S/RES/82.

38. UNSC Res. 83 (27 June 1950), UN Doc S/RES/83.

39. UNSC Res. 84 (7 July 1950), UN Doc S/RES/84.

40. See “USFK UN Command”, United States Forces Korea, online: USFK <http://www.usfk.mil/About/United-Nations-Command/>.

41. Bangning ZHOU, “Explaining China’s Intervention in the Korean War in 1950” (2014/2015) Interstate – Journal of International Affairs.

42. Byung-Hwa LYOU, “Peace and Unification in Korea and International Law” (1986) 73(2) Occasional Papers/Reprints Series in Contemporary Asian Studies (School of Law, University of Maryland) , at 37.

43. Declaration on the Advancement of South-North Korean Relations, Peace and Prosperity, 4 October 2007, para. 4.

44. See “US Enters the Korean Conflict”, National Archives, online: National Archives <https://www.archives.gov/education/lessons/korean-conflict>.

45. See supra note 39.

46. See supra note 41.

47. Ibid.; HAO Yufan and ZHAI Zhihai, “China’s Decision to Enter the Korean War: History Revisited” (1990) 121 The China Quarterly 94–115.

48. Armistice, supra note 34.

49. VCLT, supra note 27, art. 24.

50. Ibid., art.11.

51. Ibid., arts. 30, 59.

52. Ibid., art. 54.

53. Ibid., art. 57.

54. UN Charter, supra note 4, art. 2(4).

55. International Humanitarian Law: Answers to Your Questions, International Committee of the Red Cross (22 January 2015).

56. Ibid.

57. Mutual Defense Treaty Between the United States and the Republic of Korea, 1 October 1953 (entered into force on 18 November 1954).

58. Constitution of the Republic of Korea, 17 July 1948, art. 3.

59. “U.S. Relations with North Korea”, Bureau of East Asian and Pacific Affairs (17 July 2018), online: US Department of State <https://www.state.gov/r/pa/ei/bgn/2792.htm>.

60. Agreement on Ending the War and Restoring Peace in Vietnam, 27 January 1973, arts. 1, 9.

* PhD candidate in Laws, Faculty of Law, The Chinese University of Hong Kong, Hong Kong SAR. I wish to thank Ms Kehinde Olaoye for feedback on an earlier draft. Errors and omissions remain my own.

An End to the Korean War: The Legal Character of the 2018 Summit Declarations and Implications of an Official Korean Peace Treaty

  • Angela Semee KIM (a1)

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