A. Third Inter-Korean Summit: The Panmunjom Declaration

The Panmunjom Declaration, officially titled the “Panmunjom Declaration on Peace, Prosperity, and Reunification of the Korean Peninsula”, Footnote ¹ focuses on three main areas: (1) improving inter-Korean relations; (2) alleviating military tensions; and (3) establishing a permanent peace regime on the Korean Peninsula.Footnote ²

First, in the Panmunjom Declaration, the two leaders agreed on improving inter-Korean relations. The two leaders agreed that the future of the two Koreas, including unification, depends solely upon the two Koreas,Footnote ³ i.e. without any interference from third-party states. This is in accordance with Article 2(7) of the Charter of the United Nations [UN Charter] under which states have a duty not to intervene in the domestic matters of other states.Footnote ⁴ The two leaders also agreed that inter-Korean talks must continue, and that these talks should focus on denuclearization, as well as other areas such as humanitarian engagement and cultural issues.Footnote ⁵ Additionally, the two leaders agreed on conducting several joint activities and creating joint establishments, such as establishing a joint liaison office, jointly participating in international events, reconvening Inter-Korean Red Cross talks, and co-ordinating joint economic projects.Footnote ⁶ Recently, following the summit, athletes from the two Koreas marched together during the 2018 Asian Games opening ceremony, and also family members separated during the Korean War were briefly reunited during a one-week period in August 2018.Footnote ⁷ Improving inter-Korean relations is essential in narrowing the seventy-three-year gap between the two Koreas. As long as the two Koreas comply with the Panmunjom Declaration in good faith, inter-Korean relations will ultimately reach a point where the gap, at least in the cultural and social sense, no longer exists.

Second, the Panmunjom Declaration deals with alleviating military tensions. Because the two Koreas are technically still at war, military tensions remain high. Thus, alleviating military tensions is not only of interest to the two Koreas, but is also important to the international community. However, achieving this will take time and effort. To alleviate these tensions, President Moon and Chairman Kim agreed to end all hostile acts, establish a maritime peace zone, and hold frequent military talks.Footnote ⁸ An end to hostile acts is reiterated in the Declaration, because although the 1953 Armistice Agreement and other previous inter-Korean agreements mention an end to hostile acts by the two Koreas, these acts did not cease. For example, in 2010, North Korea was found responsible for sinking South Korea’s navy ship, the Cheonan,Footnote ⁹ and for shelling a South Korean island, Yeonpyeong Island.Footnote ¹⁰ Also, according to the Panmunjom Declaration, hostile acts include loudspeaker broadcasting and leaflet distribution in the Demilitarized Zone.Footnote ¹¹ Following the summit, South Korea’s Ministry of National Defence immediately announced that it would remove these loudspeakers and it did do so within a few days of the signing of the Declaration.Footnote ¹² The peoples of the two Koreas continue to live in fear, knowing that antagonism remains between the two Koreas. Unfortunately, the Panmunjom Declaration is not enough to guarantee that hostile acts will actually cease. The best legal guarantee for a complete cessation of hostile acts is a peace treaty.

Third, in the Panmunjom Declaration, the two leaders agreed to establish a permanent peace regime on the Korean Peninsula. With its most recent nuclear test on 3 September 2017, North Korea remains a threat to the international community.Footnote ¹³ Despite North Korea’s recent shift to a “charm offensive”, the international community has continued to put pressure on North Korea to commit to completing denuclearization. This is because it is too early to stop applying maximum pressure on North Korea, which continues to possess nuclear weapons and has failed to take concrete steps to denuclearize. Therefore, establishing a permanent peace regime on the Korean Peninsula is of the utmost priority. This requires not only a peace treaty officially ending the war, but also the complete denuclearization of the Korean Peninsula.

To establish a permanent peace regime on the Korean Peninsula, President Moon and Chairman Kim agreed to a prohibition on the use of force, disarmament on the Korean Peninsula, the necessity of multilateral talks, and a nuclear-free Korean Peninsula.Footnote ¹⁴ The prohibition on the use of force is a fundamental rule of international law, as stated in the UN Charter.Footnote ¹⁵ Therefore, any use of force against “the territorial integrity or political independence” of either of the two Koreas is prohibited.Footnote ¹⁶ However, while the two leaders agreed to carry out disarmament, the Declaration remains ambiguous as to how this should be done. First, Section 3(2) states that disarmament shall be carried out in a phased manner.Footnote ¹⁷ Without clarity on the meaning of the term “phased”, there is no apparent agreement on the impetus behind the choice of the phrase “disarmament in a phased manner”.Footnote ¹⁸ Second, Section 3(4) states that the two Koreas “confirmed the common goal of realizing, through complete denuclearization, a nuclear-free Korean Peninsula”.Footnote ¹⁹ Ambiguity lies in the absence of a definition of denuclearization. South Korea’s interpretation of denuclearization is, in all probability, different from North Korea’s.Footnote ²⁰ Only when the terms of denuclearization are clarified can complete denuclearization be achievable. As “the devil is in the detail”, the clarity of these terms is essential.

In conclusion, the Panmunjom Declaration is an important agreement because it articulates the aspirations considered important by the two Korean leaders for the future of the two Koreas. Also, the Panmunjom Declaration itself signals another attempt by the two Koreas to improve inter-Korean relations, alleviate military tensions, and establish a permanent peace regime on the Korean Peninsula. Although the Declaration will remain an important historical document between the two Koreas, its legal effect on the cessation of the Korean War is an entirely different legal question, which will be further discussed in Part II.

B. Singapore Summit: US-DPRK Joint Statement

Following the April 2018 inter-Korean summit, President Trump and Chairman Kim met in Singapore on 12 June 2018 for an unprecedented summit, this being the first ever summit held between a sitting US president and a North Korean leader. Similar to the inter-Korean summit, the Singapore summit resulted in a joint statement signed by the two leaders.Footnote ²¹ However, the brevity of the joint statement makes an in-depth analysis almost futile. President Trump and Chairman Kim agreed on four matters: (1) establishing a new US-DPRK relationship; (2) seeking permanent peace on the Korean Peninsula; (3) committing to the complete denuclearization of the Korean Peninsula; and (4) recovering Prisoners of War/Missing in Action [POW/MIA] remains.Footnote ²²

The fourth point regarding POW/MIA remains was implemented soon after, with North Korea returning fifty-five boxes of the remains of US soldiers killed in the Korean War to the US.Footnote ²³ Although it will take a considerable time to identify these remains, this gesture by North Korea is an indication of its readiness to change and to commit to peace. Additionally, regarding the third point of agreement on complete denuclearization, North Korea has initiated closing down some buildings at the Punggye-ri nuclear test site. However, the closing down of these buildings should not technically constitute concrete steps towards denuclearization because the Punggyre-ri site is just one of many nuclear sites and its total shut-down has not yet been verified.Footnote ²⁴ Furthermore, the nuclear sites may no longer be useful, in the light of Chairman Kim’s declaration in his New Year’s speech that North Korea has already completed its nuclear programme.Footnote ²⁵ To have the US fulfil its promises to provide security guarantees and economic assistance, North Korea must take concrete and verifiable steps to complete denuclearization.Footnote ²⁶ In effect, fulfilment of the first two points of the joint statement are dependent on denuclearization.

Although the US-DPRK summit is unprecedented and reveals a significant change to US-DPRK relations, a complete normalization of US-DPRK relations cannot be achieved if North Korea continues to possess nuclear weapons. Only when North Korea completes denuclearization will the US reciprocate and fulfil its duties under the joint statement.

A. Definition of International Treaty

Article 2(1)(a) of the Vienna Convention on the Law of Treaties [VCLT] defines a treaty as an “international agreement concluded between States”.Footnote ²⁷ It is without question that the two summit declarations are signed by their state leaders, so it seems like they can be categorized simpliciter as international treaties.

However, the intent of the parties shows otherwise. The intent of President Moon and Chairman Kim when signing the Panmunjom Declaration was to simply agree on areas for improvement between the two Koreas. The leaders had no intention to be legally obligated to uphold such provisions. In other words, nowhere in the text have the leaders expressed or implied an intention to impose legal consequences upon the parties for any violations of the Declaration. The US-DPRK joint statement is similar in this respect—it can be argued that President Trump and Chairman Kim did not intend to impose legal obligations regarding the four agreed points.

B. Lacking Legal Implementation

Not only do these summit declarations fail to fit into the category of international treaties, they also lack any legal effect. The summit declarations must go through domestic implementation procedures to have legal effect.

According to the Development of Inter-Korean Relations Act, which recognizes inter-Korean documents as “special agreements” and not as international agreements, the Panmunjom Declaration must go through a four-step process.Footnote ²⁸ The four-step process is as follows: (1) deliberation by the State Council; (2) conclusion and ratification by the President; (3) consent by the National Assembly; and (4) promulgation by the President.Footnote ²⁹ At the time of writing, the Panmunjom Declaration was at stage 3, pending the consent of the National Assembly. It is essential to receive the National Assembly’s consent because only then can the President promulgate it as law.Footnote ³⁰ Similarly, the US-DPRK joint statement requires consent by the US Congress. According to Article II, Section 2(2) of the US Constitution, two-thirds of the Senators’ consent is required to ratify treaties.Footnote ³¹

As analyzed above, the two summit declarations fail to meet the definition of international treaties and they both lack legal effect. Therefore, these summit declarations should be considered as mere political declarations. However, non-ratification of these declarations does not give the signatory states leeway to totally disregard their declarations. The leaders initially signed the declarations on the basis of mutual and reciprocal negotiation of terms, and thus all states are expected to carry out the agreed provisions in good faith.Footnote ³² Consequently, both declarations have no legal effect on the ongoing Korean War, which is an international armed conflict governed by international law. Therefore, only a peace treaty governed by international law will bring an official end to the Korean War.

A. Section 3(3) of the Panmunjom Declaration: Armistice Agreement to a Peace Treaty

Unlike the US-DPRK joint statement, the Panmunjom Declaration makes reference to the Korean War, including its combating parties. Consequently, Section 3(3) of the Panmunjom Declaration can be considered the lead point for beginning talks on a Korean peace treaty. The significance of Section 3(3) is that it recognizes three essential facts: (1) the Korean War is ongoing; (2) the armistice agreement shall be replaced by a peace treaty; and (3) the US and China must be involved in the peace-making talks.

Section 3(3) states:

As aforementioned, Section 3(3) indicates that the Korean War, which began on 25 June 1950, is still ongoing and will come to an end through a peace treaty which will replace the 1953 Armistice Agreement.

The Armistice Agreement was signed between the Commander-in-Chief of the UN Command, the Supreme Commander of the Korean People’s Army, and the Commander of the Chinese People’s Volunteer Army.Footnote ³⁴ The preamble of the Armistice recognizes that the agreement will cease all hostilities and acts of armed forces in Korea only “until a final peaceful settlement is achieved”.Footnote ³⁵ Also, because an armistice merely “suspends military operations”,Footnote ³⁶ a subsequent agreement is required to officially end the war between the combating forces.

Critical to the enforceability of the peace treaty is a determination of the appropriate contracting parties. The Korean War started out as a civil war between the two sides of Korea, but eventually evolved into an international armed conflict. Therefore, while an armistice agreement temporarily suspends military operations, a peace treaty will officially end the Korean War. The following section identifies the appropriate contracting parties, procedure, and legal implications of a Korean peace treaty.

B. Parties to the Peace Treaty

To identify the parties to the Korean War, it is necessary to go back to the start of the war. At the beginning of the war, the UN Security Council [UNSC] through Resolution 82 called for the assistance of Member States on 25 June 1950.Footnote ³⁷ This was followed by UN Resolution 83, which recommended that Member States furnish assistance to South Korea to repel the armed attack.Footnote ³⁸ Then, on 7 July, under Resolution 84, the UNSC established a unified command under the authority of the US.Footnote ³⁹ Led by the US, the unified command also involved troop units from sixteen other countries.Footnote ⁴⁰

On the other side of the war was Soviet Union-backed North Korea, which initiated the Korean War by invading the South on 25 June 1950. Later, in October 1950, the Chinese People’s Volunteer Army intervened and helped North Korea fight the war.Footnote ⁴¹

As a peace treaty aims to resolve the causes of war, it must be signed by all belligerent parties.Footnote ⁴² Understanding the origins of the Korean War and making reference to Section 3(3) of the Panmunjom Declaration helps to determine the parties for a binding peace treaty. Under Section 3(3), specific mention of China and the US is significant. Notably, it is a departure from the inter-Korean declaration signed on 7 October 2007, which makes no mention of specific third-party states to be involved in multilateral peace talks.Footnote ⁴³

China and the US were actively involved in the historical events leading to the Korean War. The US supported South Korea, mainly because of former President Truman’s efforts to prevent the spread of communism.Footnote ⁴⁴ The US was involved in the war not only because it militarily supported South Korea, but also because it was the state authorized to lead the unified command.Footnote ⁴⁵ The involvement of China, as aforementioned, began in October 1950.Footnote ⁴⁶ The reasons for China’s direct involvement in a war outside its territory is a matter discussed by other scholars.Footnote ⁴⁷ For the purposes of determining the appropriate Contracting Parties to a peace treaty ending the Korean War, it is sufficient to know that China directly participated in the war as a belligerent party. Therefore, to officially end the Korean War, an agreement among all warring parties—the US, China, South Korea, and North Korea—is required. However, a key note to remember is that the US will be a signatory as a representative of the unified command, in accordance with the position it adopted during the signing of the Armistice.Footnote ⁴⁸

C. Procedure and Implementation

Once the parties to the treaty are determined, the next step is to implement the peace treaty. A peace treaty cannot effectively end the war unless it is fully enforced and implemented. A peace treaty with the two Koreas, the US, and China as signatories will undoubtedly be an internationally recognized treaty. All international treaties, governed by the VCLT, have legally binding force once they are entered into. A Korean peace treaty will require a finding of a clear intention of the parties to adhere to their obligations under the treaty, unlike the summit declarations.

Article 24 of the VCLT provides that a treaty comes into force as agreed by parties in the treaty or once all parties consent to be bound by the treaty.Footnote ⁴⁹ Parties can consent to be bound by “signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession”.Footnote ⁵⁰ Once a treaty enters into force, it remains legally binding upon the parties until it is superseded by a new treaty relating to the same subject matter,Footnote ⁵¹ terminated,Footnote ⁵² or suspended.Footnote ⁵³ Once the four signatories consent to being bound by a peace treaty ending the Korean War and take the necessary steps to show their consent, a peace treaty will enter into force, which will remain legally binding upon the Contracting Parties. Having considered the requirements for a binding peace treaty above, the question which remains is: What are the legal implications of a peace treaty ending the Korean War?

D. Legal Implications of a Korean Peace Treaty

It is important not only to determine the appropriate Contracting Parties and understand the legal procedures for implementing a Korean peace treaty, but also to understand the legal implications of the treaty. Once the four signatories sign a peace treaty ending the Korean War, the treaty will result in three possible legal implications: an official end to the state of war, an effect on the deployment of US troops on the Korean Peninsula, and a normalization of state relations.

First, a Korean peace treaty implies an official end to the state of war. As Member States of the UN, both North and South Korea are prohibited from the use and threat of force.Footnote ⁵⁴ However, prohibition of the use of and threat of force does not preclude states from using military action during a state of war under jus in bello.Footnote ⁵⁵ If a war is still ongoing, as long as the conflicting states comply with international humanitarian law, they may resort to necessary and proportionate use of force.Footnote ⁵⁶ This indicates that a clear distinction exists between being in a state of war and being in a state of peace. Therefore, only an official peace treaty ending the war can completely prohibit the use of force on the Korean Peninsula.

Second, a Korean peace treaty implies that the deployment of US troops on the Korean Peninsula will be affected. As aforementioned, because the US is authorized to lead the unified command, its authority under the 1950 UN resolutions, which is solely based on the Korean War, will most likely lapse. However, a peace treaty does not mean an automatic withdrawal of US troops on the Korean Peninsula because the deployment of US troops is also based on the US-ROK Mutual Defense Treaty, and this is independent from the Armistice.Footnote ⁵⁷ Only the operation of the unified command will cease to exist. Therefore, although a Korean peace treaty does not mean an automatic withdrawal of US troops, it will indicate some changes to the deployment of US troops on the Korean Peninsula, i.e. a minimization of troops.

Third, a Korean peace treaty implies the normalization of state relations. A peace treaty will officially mean that the four signatories recognize each other as legitimate governments. This will most likely have an impact on South Korea-North Korea and US-North Korea relations. For example, South Korea does not recognize North Korea as a separate state, but rather considers the entire Korean Peninsula as the territory of the Republic of Korea.Footnote ⁵⁸ Furthermore, the US does not yet have any diplomatic relations with North Korea.Footnote ⁵⁹ A Korean peace treaty will imply that the US and South Korea recognize the statehood of North Korea and mark the beginning of normal diplomatic relations with it.

Historical precedents in postwar unification of divided territories further support the argument that a Korean peace treaty will imply the recognition of North Korea as a sovereign and independent state. For example, the peace treaty ending the Vietnam War states that the signatories must respect the “independence [and] sovereignty” of Vietnam, including South Vietnam’s right to self-determination.Footnote ⁶⁰ Likewise, a Korean peace treaty must respect the independence and sovereignty of the Koreas, including North Korea’s right to self-determination.

In conclusion, an official peace treaty requires the presence and signatures of the leaders of the four Contracting Parties and must be legally implemented under international law to have an effect on the Korean War. A Korean peace treaty implies that there will be an official end to the war on the Korean Peninsula and that the deployment of US troops will be adjusted. Additionally, a Korean peace treaty will bring changes to the relationship between the four signatories.