A peace treaty is being mentioned in the course of exploring an ultimate solution to the military confrontation on the Korean Peninsula.
It has been suggested that a peace treaty would tame North Korea by replacing the current armistice agreement and officially ending hostilities in the region.
China supports the idea of pursuing denuclearization and a peace treaty in parallel. The U.S. position has been that denuclearization should be a prerequisite for any meaningful discussion of a peace treaty, but it apparently does not explicitly rule out the possibility that the two issues can be discussed together. So, while the U.S. and China adopt different tones, both signal that a peace treaty is one of the options on the table in dealing with North Korea.
From a legal perspective, a peace treaty is necessary to officially end a war. This is the legal instrument that brings warring nations or parties back to normalcy. Remaining claims and compensation, if there are any, are also settled through a peace treaty. Diplomacy is restored and envoys are exchanged. So, in the absence of such a treaty, the two Koreas are still technically at war, and thus any renewed full-scale hostilities are not an initiation of a war but a resumption of the existing war.
It is indeed unprecedented in modern history for an armistice agreement to regulate warring parties for more than 60 years. Every confrontation under the Korean armistice agreement is like walking on a tightrope. A peace treaty will presumably eliminate these uncertainties.
That said, the term “peace treaty” has prompted an allergic reaction in South Korea since it was first proposed by the North in 1974. This reaction stems from the reflection that the replacement of the armistice with a peace treaty would raise a complex set of issues. Of course, a peace treaty would officially declare the end of the Korean War and the establishment of diplomatic relations. Nevertheless, a prospective treaty does not stop there. It will also have to deal with other transitional measures and situations stemming from the Korean War and the armistice regime.
Once the war is officially terminated, the legal status of the United Nations Command will have to be discussed. A possible dissolution or adjustment of the UNC will have a ripple effect on the role of the U.S. commanding general, who also serves as commander of the UNC and the mobilization of U.S. forces in Japan in the case of a Korean contingency, in which the UNC is to play a linking role. More importantly, with the dismantling of the armistice, the scale and presence of U.S. forces in Korea will also be subject to continuing discussions. All these complexities have made South Korea wary of a peace treaty whenever there is a proposal from the North.
Recent developments in Washington and Beijing indicate that there is some flexibility on this issue depending on how North Korea responds to the conditions set by these two countries. Discussion of a peace treaty, however, should not forget the structural changes that will stem from the dismantling of the existing framework. There should be a guarantee that any new framework is indeed better and safer than the existing one in terms of deterring hostilities and maintaining peace on the Korean Peninsula.
The worst case scenario would be for North Korea to get its long-coveted peace treaty with the United States because of its nuclear weapons development program. It may be a crucially improper reward for the regime’s two-decade nuclear efforts.
By Lee Jae-min
Lee Jae-min is a professor of law at Seoul National University. -- Ed.