Seunghyun Sally Nam is 3rd Secretary for the Korean Peninsula Peace Regime Division at the Ministry of Foreign Affairs and Trade, Republic of Korea. She is writing in her personal capacity and her views do not necessarily represent those of the South Korean government.
In his recent post, Dapo Akande refers to a recent article by Gordon Chang in which Mr Chang argues that North Korea’s announcement that it is no longer bound by the 1953 Armistice Agreement means that the Korean War has resumed as a matter of law. The issue comes down to whether North Korea’s announcement that it ‘will not be bound by the armistice’ terminates the armistice or not. Gordon Chang makes his assertion based on the idea that the Korean armistice agreement is subject to termination by the announcement of either party. However, Article 62 of the Armistice Agreement states that the Armistice agreement is effective until it is expressly superseded either by mutually acceptable amendments and additions or provision in an appropriate agreement for a peaceful settlement. Article 61 also states that ‘amendments and additions to this Armistice Agreement must be mutually agreed by the Commanders of the opposing side’.
Gordon Chang mentions in his article that the U.N. Command, a signatory to the armistice, responded to North Korea’s argument by insisting that the Armistice is in force and by referring to the termination provision. However, the Korean Armistice Agreement does not have a termination provision. The two provisions which I mentioned in the above are the only provisions which regulate any ‘amendments and additions’ to the agreement.
Therefore, most South Korean scholars argue that based on these two provisions, 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.
North Koreans could argue that South Korea’s participation in the PSI (Proliferation Security Initiative) led by the U.S. and the recent UNSC resolution are all acts of hostilities against the North, violating article 12 of the Armistice agreement where it states for the parties to enforce ‘complete cessation of hostilities’. However, this is debatable. Moreover, this view is opposed by the U.N. Commander and the South Korean government who are both of the view that North Korea’s announcement cannot terminate the agreement and that the agreement is still effective.
I recently completed a dissertation focusing on whether the Armistice agreement, could be regarded as a de facto peace treaty that actually ended the war, considering that it has been more than fifty years since it was concluded. In the Israel-Egypt, Lebanon, Jordan peace processes, the armistice agreement brought about ‘ a kind of de facto termination of war’ where the significance of a peace treaty was lost. Therefore, some scholars argue that the definition of an armistice agreement has evolved to mean ‘de facto termination of war’. Yoram Dinstein argues that the Korean Armistice agreement terminated the war since it stipulates the ‘complete cessation’ of hostilities and not a ‘suspension’ of hostilities. However, this does not mean that this produced peace in the full meaning of the term. (Dinstein, ‘War, Aggression and Self-Defence’, 4th ed., Cambridge University Press, 2005, p. 44.)
My own personal view is that the war between the two Koreas have suspended, but not terminated, since strong tensions still exist and sporadic naval clashes between the two Koreas have occurred over the course of the time, making it difficult to argue that war has actually been terminated.
Nonetheless, as Dapo mentions in his post, there are questions as to whether belligerent rights can continue for fifty years after the conclusion of an Armistice agreement in light of the U.N. Charter prohibiting the use of force in international relations.
Finally, North Korea’s announcement does not immediately lead to resumption of war. Once North Korea conducts an act of hostility, and direct hostilities occur on the Korean peninsula after its formal announcement, there may be resumption of war. North Korea has previously made lots of harsh rhetorics, threatening South Korea and the U.S. of an ‘all-out war’, downgrading the significance of the announcement. Some South Korean scholars argue that they are not formal announcements but mere political statements.