48 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR
North Korea, 1950–1960,” The Asia-Pa-
cific Journal: Japan Focus 7 (March
16, 2009); Charles K. Armstrong, The
North Korean Revolution 1945–1950
(Cornell University Press, 2003), 245.
40 Féron et al., The Human Costs and Gen-
dered Impact of Sanctions on North Ko-
rea, 4–5, 14–18. For UNSC sanction sourc-
es, see UNSC Resolution 1718, S/RES/1718,
October 14, 2006; UNSC Resolution 1874,
S/RES/1874, June 12, 2009; UNSC Resolu-
tion 2087, S/RES/2087, January 22, 2013;
UNSC Resolution 2094, S/RES/2094,
March 7, 2013; UNSC Resolution 2270, S/
RES/2270, March 2, 2016; UNSC Reso-
lution 2321, S/RES/2321, November 30,
2016; UNSC Resolution 2371, S?RES/2371,
August 5, 2017; UNSC Resolution 2375,
S/RES/2375, September 11, 2017; UNSC
Resolution 2397, S/RES/2397, December
22, 2017. For US sanctions, see Congres-
sional Research Service, North Korea:
Legislative Basis for U.S. Economic Sanc-
tions, R41438, updated March 9, 2020.
41 Amnesty International, The National
Security Law: Curtailing Freedom of
Expression and Association in the Name
of Security in the Republic of Korea, 2012;
UN Human Rights Committee, Conclud-
ing Observations on the Fourth Periodic
Report of the Republic of Korea, CCPR/C/
KOR/CO/4, para. 48–51, December 3,
2015 (“The Committee … reminds the
State party that the Covenant does not
permit restrictions on the expression of
ideas merely because they coincide with
those held by an enemy entity or may be
considered to create empathy for that
entity. The State party should abrogate art.
7 of the National Security Act”); Sukjong
Hong, “Court Dissolution of Left-Wing
Party in South Korea Raises Alarm,”
Al Jazeera, January 15, 2015; Sang-hun
Choe, “Former South Korean Spy Chief
Sentenced for Trying to Sway Election,”
New York Times, August 30, 2017.
42 According to the seminal treatises on war
and peace of the jurist Lassa Oppenheim,
“the chief and general effect of a peace
treaty is restoration of the condition of
peace between the former belligerents.”
Oppenheim, International Law, para.
272. See also U.S. Department of Defense,
Law of War Manual, June 2015 (updated
December 2016), 94 (“hostilities may be
terminated by … an agreement to end
hostilities, normally in the form of a treaty
of peace”). The Vienna Convention on
the Law of Treaties defines a “treaty” as
“an international agreement concluded
between States in written form and gov-
erned by international law.” (art. 2(1)a).
43 Oppenheim, International Law, para.
231 (“[Armistices] are in no wise to be
compared with peace, and ought not to
be called temporary peace, because the
condition of war remains between the bel-
ligerents themselves, and between the bel-
ligerents and neutrals on all points beyond
the mere cessation of hostilities.”); U.S.
Department of Defense, Law of War Man-
ual, 864 (“An armistice is not a partial or a
temporary peace; it is only the suspension
of military operations to the extent agreed
upon by the parties to the conflict. War as
a legal state of hostilities between parties
may continue, despite the conclusion of an
armistice agreement” [citations omitted]).
44 How to best achieve a peace regime
is outside the scope of this report. See
the Introduction for a bibliography
of models and see Recommendations
for proposed guiding principles.
45 Joint Statement of the Fourth Round
of the Six-Party Talks, September 19,
2005, para. 4; Inter-Korean Panmun-
jom Declaration on Peace, Prosperity
and Reunification of the Korean Penin-
sula, April 27, 2018, para. 3; Singapore
Declaration, June 12, 2018, para. 2.
46 There are different interpretations of the
legal significance of the long-standing
cessation of large-scale active combat in
Korea. Some scholars have argued that
this cessation ushered in a tacit state of
peace over the years. Others argue that the
state of war persists, given the continuing
heavy militarization and military tensions
on the Korean Peninsula and calls by the
two Koreas and UN organs to replace
the Armistice with a peace agreement.
Insofar as a state of war may arise based
solely on intention as opposed to actual
use of force, for instance in the case of a
declaration of war, the absence of active
combat is not per se conclusive evidence
that a state of war has ended. All sides
have, even relatively recently, threatened
use of force in ways that appear difficult
to reconcile with peacetime rules. The
uncertainties this raises have themselves
fueled the intense military tensions on
the Korean Peninsula. Patrick Norton,
“Ending the Korean Armistice Agree-
ment: The Legal Issues,” NAPSNet Policy
Forum, March 1997 (estimating that “most
authorities have concluded that … the
Korean War … still continues as a legal
matter.”); Korean War Armistice Agree-
ment, July 27, 1953, Preamble and art. 60;
UN General Assembly Resolution 3390A,
para. 2, 3390B, para. 2, November 18, 1975;
Inter-Korean Basic Agreement of 1991, art.
5; UN Security Council President State-
ment S/PRST/1996/42, October 15, 1996;
Inter-Korean Panmunjom Declaration
on Peace, Prosperity and Reunification of
the Korean Peninsula, April 27, 2018, para.
3. See also U.S. Department of Defense,
Law of War Manual, 94 (“Hostilities end
when opposing parties decide to end
hostilities and actually do so, i.e., when
neither the intent-based nor act-based
tests for when hostilities exist are met.”);
see also McInnis et al., The North Korean
Nuclear Challenge, 17 (“while the United
Nations has stated that the armistice
agreement still serves as the basis and
starting point for permanent peace on the
Korean Peninsula, it may be difficult to
argue that it still serves as the controlling
source of international law and authority
with regard to all uses of military force.”).
47 Inter-Korean Panmunjom Declaration
on Peace, Prosperity and Reunification of
the Korean Peninsula, April 27, 2018, para.
3.3 (“The two sides agreed to … actively
promote the holding of trilateral meetings
involving the two sides and the United
States, or quadrilateral meetings involving
the two sides, the United States and China
with a view to replacing the Armistice
Agreement with a peace agreement.”).
48 The UN Charter, in an effort to outlaw
aggressive war and ensure that states
resolve disputes peacefully, requires all
members to “refrain in their international
relations from the threat or use of force
against the territorial integrity or political
independence of any state, or any other
manner inconsistent with the purposes of
the United Nations.” (art. 2(4)). The prin-
ciple of nonuse of force in international
relations has been further developed
under customary international law, no-
tably prohibiting wars of aggression, and
the use or threat of force in violation of
existing frontiers or of the right of peoples
to self-determination or independence,
among others. The only widely recognized
exceptions to these strict rules are cases
of self-defense or legitimate Security
Council authorizations, although these
exceptions themselves remain subject to
certain limitations. See also UN General
Assembly Resolution 2625 (XXV), October
24, 1970; Military and Paramilitary Activ-
ities in and against Nicaragua (Nicaragua
v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, paras.
174–175, 188–195; UN General Assembly
Resolution 42/22, November 18, 1987.
49 See, generally, Jean-Marie Henckaerts
and Louise Doswald-Beck, Customary
International Humanitarian Law, Vol.
I: Rules, International Committee of
the Red Cross (Cambridge University
Press, 2005); see also U.S. Department of
Defense, Law of War Manual, 9–10, 14–15.
50 There have been skirmishes over
the years, particularly surrounding
a disputed maritime boundary. See,
e.g., Sang-hun Choe, “Korean Navies
Skirmish in Disputed Water,” New
York Times, November 10, 2009.
51 An agreement may be binding under
international law regardless of its title,
meaning even an instrument entitled
“Declaration to End the Korean War” can
potentially be binding. One example is
the USSR–Japan “Joint Declaration” of
October 19, 1956, which despite its title
bindingly normalized relations between
the two countries because they signaled
their consent to be bound. The Vienna
Convention on the Law of Treaties defines
a treaty as “an international agreement
concluded between States in written
form and governed by international law,
whether embodied in a single instrument
or in two or more related instruments
and whatever its particular designation”
(art. 1(a)). See Annex I for a review of how
a peace agreement would work within
each party’s domestic legal system.
52 Oppenheim, International Law, para. 272
(“As soon as the [peace] treaty is ratified,
all rights and duties which exist in time
of peace between the members of the
family of nations are ipso facto and at once
revived between the former belligerents
… all acts legitimate in warfare cease to
be legitimate.”) See also U.S. Department
of Defense, Law of War Manual, 94–96.
53 Oppenheim, International Law, para. 272
(“Attention must be drawn to the fact
that the condition of peace created by
a peace treaty is legally final in so far as
the order of things set up and stipulated