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Home Armed Conflict Are the two Koreas Now at War?

Are the two Koreas Now at War?

Published on April 1, 2013        Author: 

In recent days the tensions on the Korean peninsula have risen. On 11 March, North Korea claimed  that it had terminated the armistice agreement that ended the Korean War of the 1950s and on 30 March stated that:

“From this time on, the North-South relations will be entering the state of war and all issues raised between the North and the South will be handled accordingly. The long-standing situation of the Korean peninsula being neither at peace nor at war is finally over.” (see this BBC article for a useful timeline of recent events

But does this statement mean that the two Koreas are back at war, despite the absence of hostilities at this point in time? And why might a state of war be important legally, if there are no hostilities? Also has North Korea validly terminated the armistice agreement and what would the legal implications of this be? We examined all of these issues here on EJIL:Talk! back in July 2009, in two posts written during a previous Korean crisis. One post “The Korean War has Resumed !! (Or so we are told)” was written by me. The other – Has North Korea Terminated the Korean Armistice Agreemennt?  -  was by my former student, Seunghyun Sally Nam, who was, at the time of writing, an official in the Korean Peninsula Peace Regime Division at the South Korean Ministry of Foreign Affairs (but writing in her personal capacity). The issues we covered then are perhaps more relevant now and I invite readers to revisit those posts. They are also in the “From the Archives” box to the right.

In my post, I  examined whether or not the two Koreas (and allies like the United States) could resume belligerent rights like searching vessels at sea on the theory that there was an ongoing war. I stated then that

“The Geneva Conventions (1949) say that they apply in case of a declared war or any other armed conflict (Art. 2, para. 1). These instruments will therefore apply in case of a declared war even where no hostilities take place. Likewise, the Hague Conventions of 1907 (and the customary rules which result from them, in particular the right of visit, search and seizure of enemy merchant vessels) apply in time of war. The question that arises is whether the verbal announcement that an armistice is no longer regarded as binding is to be taken as a declaration of war, meaning that the law of armed conflict immediately becomes applicable. My own view is that this is not the case. There is a strong presumption that States do not intend to create a state of war. As McNair and Watts, The Legal Effects of War (4th ed. 1966), p. 8 state: ‘So serious a matter as the existence of a state of war is not lightly to be implied.’

According to Greenwood: ‘Only if a statement that a country is at war was clearly intended to create a state of war, in the full legal sense, will it be taken to have that effect.’

As far as I can see, North Korea’s statement announcement does not even use the word ‘war’ nor is there any indication that they intend to create a state of war.”

But is the matter different now? Perhaps they are. Readers, any thoughts?

In Sally’s post, she noted that:

“most South Korean scholars argue [that based on two provisions in the armistice agreement that]  . . . North Korea does not have a right to terminate on its own, but termination must be agreed by both sides. The North Koreans argue that their declaration ‘not to be bound’ is because the U.S. has repudiated the Armistice agreement. The view of South Korean scholars is that there has to be material breach on the U.N. Commanders side, based on article 60 of the Vienna Convention on the Law of Treaties, for North Korea to have sufficient grounds to terminate it, and there can be many controversies on this regarding the implementation of the agreement.”

She then noted that ” the U.N. Commander and the South Korean government [were] . . . both of the view that North Korea’s announcement cannot terminate the agreement and that the agreement is still effective.” Presumably, this is still the case in the current crises.

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3 Responses

  1. Jordan

    normally, an armistice agreement merely ends hostilities as long as the agreement holds and war as such does not end until there is a peace agreement, etc. Note also
    Dinstein’s claim regarding the “first” Gulf War with Iraq was that the war never ended, that a cease fire was breached by Iraq and the no-fly zones and conduct of the U.S., U.K., Germany, and France regarding enforcement of such demonstrated that the “war” had not ended by 2002 or 2003.

  2. Iain Scobbie iain

    Dapo, there is some international judicial authority for the position you adopt. In Dalmai Cement Ltd v National Bank of Pakistan (jurisdiction judgment) 67 International Law Reports 611 (1976), Lalive, the sole arbiter comprising an International Chamber of Commerce Arbitral Tribunal, upheld the view that not all armed conflicts constituted “war” and that hostile acts did not necessarily amount to “war” in the legal sense (617, para.7). He then proceeded to erect an effective presumption against the outbreak of “war” by holding that the fact that the opposing parties to the specific conflict before him (India and Pakistan) were United Nations Members was significant. He ruled that their obligations under the Charter were relevant as to whether a state of war existed:

    This minimum effect [of United Nations Membership] may be described as follows: in case of doubt as to the answer to be given to that question [whether a state of war existed], the answer should be negative rather than affirmative, for the existence of a state of war can certainly not be presumed between Members of the [United Nations]. On the contrary, it must be presumed, in dubio, that each Member State, if and when it is using force, intends to use it in a manner which is consistent with its obligations under the Charter (especially under Article 2(4)).

    Lalive held that it followed that if United Nations Members must be presumed not to use force in breach of the Charter a fortiori they must be presumed not to intend to resort to war (see 619-620, paras.25-27). On the other hand, it has to be conceded that Lalive also based himself on McNair and Watts in making this ruling.

    But if South Korea bases its position on the VCLT, should it not take account of Article 73–”The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty…from the outbreak of hostilities between States”? Anyone any views?

  3. Dapo Akande

    Thanks Iain and Jordan for your comments.

    Jordan, the view you attribute to Dinstein is very similar to the US/UK view regarding the authority to resort to force in Iraq in 2003. However, this view, which draws on support from practice prior to the UN Charter, fails to take into account changes brought into effect by the Charter. As Chris Greenwood states in the same chapter I quote above:

    “The changes in the law regarding resort to force brought about by the adoption of the UN Charter have had a particular effect on the right of the parties to resume hostilities after the conclusion of an armistice or ceasefire of indefinite duration. Whereas the law once admitted there was a general right to resume hostilities (Article 36 Hague Reg), today it would be a violation of Article 2(4) for a state to resume hostilities unless the behaviour of the other party to the armistice or ceasefire amounted to an armed attack or the threat of an armed attack.”

    Iain, thanks for reference to that case.