Korean peace treaty faces legal hurdles to become reality

Korean peace treaty faces legal hurdles to become reality

Maj. Gen. Blackshear Bryan, left, opens the Korean armistice talks with with Lt. Gen. Lee Sang Cho of the North Korean forces (DoD photo)

WASHINGTON — Of all of the symbolism that may come from the summit between North and South Korea set to begin Friday, signing a formal document to end the war fought between the two more than six decades ago may be the most potent.

Fighting between the two Koreas — and by extension China with North Korea and the U.S and United Nation forces with South Korea — lasted three years. The fighting ended with an armistice, which is an agreement to stop hostilities.

That means that, technically, South Korea, the United States and other members of the United Nations that participated in the conflict are still in a state of war with North Korea.

“This is really about North and South Korea making peace,” Kevin Martin, president of Peace Action, said in an interview. “(South Korean President Moon Jae-in) was very clear and was supported on these grounds when he was elected last May.”

A poll published April 21 by the Hankyoreh Media in South Korea, showed 78.7 of those polled favored a peace treaty with North Korea; 55.5 percent “strongly support” the peace treaty according to the poll. The polling organization Real Meter surveyed 501 adult South Koreans on April 18.

In tune with the expected symbolism of the summit — and in line with such gestures as South Korea shutting off music it has blared across the border to North Korean guards — the U.S. and South Korean militaries have paused the computer military exercises that are part of the annual Key Resolve operation, Pentagon officials said Thursday.

Additionally, Eagle Foal, a series of joint and combined ground, air, naval and special operations field exercises between U.S. and South Korean forces, is conveniently also in a lull, Pentagon officials said Thursday, just by dint of scheduling.

Start of the annual military exercises had been delayed until spring because of the Winter Olympic and Para-Olympics, held earlier this year in South Korea.

Who would be required to sign a peace treaty to make it legally valid and binding is unclear. Neither history nor legal scholars can provide definitive guidance.

The United States and China are signatories to the armistice with North Korea, with the U.S. signing on behalf of the United Nations; South Korea refused to sign the 1953 agreement because it left the peninsula divided and not under Seoul’s control. China signed on behalf of its volunteer forces, maintaining it did not participate in the conflict.

Any formal peace treaty that has to be signed by the United States would have to be approved by the Senate with a two-thirds margin.

There are technical complications. Since North Korea did not acknowledge South Korea as a foe during the war — claiming it was under the control of the United States — it is unclear how they would now accept it as a guarantor of a peace treaty, legal experts have opined.

Likewise, since China maintained it was not involved in the war — that it was Chinese volunteer forces that crossed the border to engage in the conflict – its role as a government signing would have to be repurposed the legal experts have suggested.

Moon told reporters last week “the signing of a peace agreement” must be pursued, but he did not specify what the metrics or form of any agreement, according to published reports.

International law generally recognizes three ways to end a conflict: a peace treaty, which is an agreement between two or more warring entities to formally end a state of war; an armistice, such as in Korea, which halts the fighting, and a surrender, where one side capitulates and gives up weapons and concessions. There can also be a truce, which is akin to an armistice.

Sometimes more than one can happen. For example, Japan surrendered on Sept. 2, 1945, ending the fighting in World War II. However, the formal state of war ended when the treaty of San Francisco became effective on April 20, 1952.

History likes to throw curve balls into the process.

For example, Andorra was one of the first nations to declare war on Germany in 1914 but was not invited to sign Treaty of Versailles, which formally concluded World War One. It did not sign a peace treaty with Germany until 1939, right before World War Two ignited. (Andorra was neutral in World War Two.)

Likewise, Costa Rica was also not included in the Treaty of Versailles and thus technically at war with Germany throughout both World Wars. It was part of the Potsdam Agreement that ended World War Two.

That agreement was just that — an agreement, It was not until 1991, after East and West Germany were reunited, that a formal peace treaty was signed to end World War Two.

“This is long overdue and it (a Korean peace treaty) should be volitional,” Martin said. “President Moon has been masterful in his diplomacy and we may come to look at him as a historic figure like (India’s Mahatma) Gandhi or (South Africa’s Nelson) Mandela.”

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