Given that the Kim Dum Shrimp in N. Korea is being belligerent against THE most capable military in the world, one that could have had his parade stand go “POOOF!” mid parade with zero notice and undetectable methods, just what would be the legal context for such a thing.
The Korean War ended in an armistice, not a peace treaty. Technically we are still at war and under a UN Authorization.
But such things have a rats nest of “in the details”. This one is worse.
So here’s my take on it.
First off, an Armistice is just an agreement between the belligerent ARMIES (read ‘military’) to stop shooting for a while. Kind of a formal long truce or time-out. There’s some fur on this one (details below) that amounts to them coming in 2 flavors. Those with a specified time limit and those without. Those with have an end time where you can start shooting again. Those without mean you can start shooting anytime. This one has a ‘definite time limit’ of ‘forever’, so is an odd duck… sort of implying can never shoot again… but also not forbidding it.
Another bit of murk is “Who is the belligerent?”. Turns out the folks who signed the Armistice are not necessarily the ones who did the fighting, so “who knows” if it binds on anyone in particular…
Then there is the ‘violation out’. If a party violates an armistice the other party can start shooting. One of the agreed points was no new armaments in theatre. Since a whole county full of new armament has been loaded up by BOTH sides, looks to me like either side can declare a breech. In fact, N. Korea has claimed it several times, so all Trump needs to do is agree with them… them bomb the living daylights out of them… (“Hey, they said it was over… don’t blame me…”)
OK, here’s the murk and muck:
We’ll start with the wiki:
The Korean Armistice Agreement is the armistice which serves to insure a complete cessation of hostilities of the Korean War. It was signed by U.S. Army Lieutenant General William Harrison, Jr. representing the United Nations Command (UNC), North Korean General Nam Il representing the Korean People’s Army, and the Chinese People’s Volunteer Army. The armistice was signed on July 27, 1953, and was designed to “insure a complete cessation of hostilities and of all acts of armed force in Korea until a final peaceful settlement is achieved.” No “final peaceful settlement” has been achieved. The signed armistice established the Korean Demilitarized Zone (de facto a new border between the two nations), put into force a cease-fire, and finalized repatriation of prisoners of war. The Demilitarized Zone runs not far from the 38th parallel, which separated North and South Korea before the Korean War.
OK, so first off, NONE of the individual NATIONS fighting in Korea, other than North Korea, signed this puppy.
It is binding on a “Chinese Volunteer Army”, not China. It is signed by a US officer, but FOR the “United Nations Command”. OK, so the UN can’t just ignore it, but the USA isn’t bound, near as I can tell.
By mid-December 1950, the United States was discussing terms for an agreement to end the Korean War. The desired agreement would end the fighting, provide assurances against its resumption, and protect the future security of UNC forces. The United States asked there needed to be a military armistice commission of mixed membership that would supervise all agreements. Both sides would need to agree to “cease the introduction into Korea of any reinforcing air, ground or naval units or personnel … and to refrain from increasing the level of war equipment and material existing in Korea.” The U.S. also desired to make a demilitarized zone that would be roughly 20 miles wide. The agreement would address the issue of prisoners of war which the U.S. believed should be exchanged on a one-for-one basis.
Um, I think nuclear bombs and submarine launched nuclear missiles would count as a breech. As would the miles of long range canon N. Korea has put on the border. So, too, IMHO, would all the gear the USA has shipped over. Near as I can recall, sidewinder missiles from jet aircraft and drones and ship launched cruise missiles were not around in 1953.
I think that pretty much all by itself clears the deck for any attack either side wants to launch. But that’s just my opinion (as is all of this, really…)
While talks of a possible armistice agreement were circulating, in late May and early June 1951, the President of the Republic of Korea (ROK, South Korea) Syngman Rhee opposed peace talks. He believed the ROK should continue to expand its army in order to march all the way to the Yalu River and completely unify the nation. The UNC did not endorse Rhee’s position. Even without UNC support, Rhee and the South Korean government launched a massive effort to mobilize the public to resist any halt in the fighting short of the Yalu River. Other ROK officials supported Rhee’s ambitions and the National Assembly of South Korea unanimously passed a resolution endorsing a continued fight for an “independent and unified country.” At the end of June, however, the Assembly decided to support armistice talks, although President Rhee continued to oppose it.
Like Syngman Rhee, North Korean leader Kim Il-sung also sought complete unification. The North Korean side was slow to support armistice talks and only on June 27, 1951 – seventeen days after armistice talks had begun – did it change its slogan of “drive the enemy into the sea” to “drive the enemy to the 38th parallel.” North Korea was pressured to support armistice talks by allies the People’s Republic of China (PRC, China) and the Soviet Union, whose support enabled North Korea to continue fighting.
Hmmm… Looks like South Korea has a free hand, too. I don’t see anything saying the rescinded that resolution, nor that they signed any deal.
There is a bit of an open question for me about what the UNC has in the way of binding agreements on any participants under their flag. Then again, I’m not seeing how the UN has authority over nations in general…
Skipping a bunch of the history of the negotiations in the wiki:
The signed armistice established a “complete cessation of all hostilities in Korea by all armed force” that was to be enforced by the commanders of both sides. Essentially a complete cease-fire was put into force. The armistice is however only a cease-fire between military forces, rather than an agreement between governments. No peace treaty was signed which means that the Korean War has not officially ended.
The armistice also established the Korean Demilitarized Zone (DMZ). The DMZ was decided to be a 2.5-mile (4.0 km)-wide fortified buffer zone between the two Korean nations. The Demilitarized Zone follows the Kansas Line where the two sides actually confronted each other at the time of the signed armistice. The DMZ is currently the most heavily defended national border in the world.
In addition to the established regulations listed above, the armistice also gave recommendation to the “governments of the countries concerned on both sides that, within three (3) months after the Armistice Agreement is signed and becomes effective, a political conference of a higher level of both sides be held by representatives appointed respectively to settle through negotiation the questions of the withdrawal of all foreign forces from Korea, the peaceful settlement of the Korean question, etc.” Even in 2013, 60 years after the signing of the armistice agreement, these issues have not been settled as a peaceful settlement of the Korean question has not been reached and American troops still reside in South Korea.
After the armistice was signed the war is considered to have ended even though there was no official peace treaty. Despite the three-year war, the Korean peninsula greatly resembled what it did before the war with national borders at similar locations. The U.S. views the war as a tie while North Korea and China both claim that they won the Korean War.
So we still have an official hot war, and we still have a failure to make a peace. Seems to me like either side starts shooting anything, even missiles out to sea, the other side can fire back as much as they like.
United States abrogation of paragraph 13(d)
Paragraph 13(d) of the Armistice Agreement mandated that neither side introduce new weapons into Korea, other than piece-for-piece replacement of equipment. In September 1956 the U.S. Chairman of the Joint Chiefs of Staff Admiral Radford indicated that the U.S. military intention was to introduce atomic weapons into Korea, which was agreed to by the U.S. National Security Council and President Eisenhower. However paragraph 13(d) prevented the introduction of nuclear weapons and missiles. The U.S. unilaterally abrogated paragraph 13(d), breaking the Armistice Agreement, despite concerns by United Nations allies. At a meeting of the Military Armistice Commission on June 21, 1957, the U.S. informed the North Korean representatives that the United Nations Command no longer considered itself bound by paragraph 13(d) of the armistice. In January 1958 nuclear armed Honest John missiles and 280mm atomic cannons were deployed to South Korea, a year later adding nuclear armed Matador cruise missiles with the range to reach China and the Soviet Union.
The U.S. believed that North Korea had introduced new weapons contrary to 13(d), but did not make specific allegations. North Korea also believed the U.S. had introduced new weapons earlier, citing Neutral Nations Supervisory Commission inspection team reports for August 1953 to April 1954.
North Korea denounced the abrogation of paragraph 13(d). North Korea responded militarily by digging massive underground fortifications resistant to nuclear attack, and forward deployment of its conventional forces so that the use of nuclear weapons against it would endanger South Korean and U.S. forces as well. In 1963 North Korea asked the Soviet Union and China for help in developing nuclear weapons, but was refused.
Following the abrogation of paragraph 13(d), the Neutral Nations Supervisory Commission (NNSC) largely lost its function, and became primarily office based in the DMZ with a small staff.
So both sides have already abrogated the agreement. OK, that puts us back at ‘legally a hot war’ as I read this.
Now the fun bit. The UNC no longer exists. One of THE key signatories is a no-op. So N. Korea has an ‘agreement’ with a non-entity and with a ‘volunteer’ force that has disbanded (and was a questionable legal entity anyway). So who’s left to be an active signatory other than N. Korea?
In 1975, the U.N. General Assembly adopted resolutions endorsing the desirability of replacing the Armistice Agreement with a peace treaty and dissolving the UNC.
In October 1996, the U.N. Security Council, by a statement of the President of the Council, urged that the Armistice Agreement should be fully observed until replaced by a new peace mechanism. Approving nations included the United States and the Peoples Republic of China, two of the armistice’s signatories, effectively refuting any suggestion that the armistice was no longer in force.
So if you agree to scrapping something entirely that constitutes affirmation it is working right? Come again? But then there is also the point that the wiki says the USA and PRC were “signatories” when in fact the UNC through a subordinate US officer and a “Volunteer Army” were signatories, not the USA and PRC per se. I think this is a dodgy bit in the wiki.
But I think it is a moot point anyway, as after that, North Korea announced it was withdrawing anyway.
North Korean announcements to withdraw from the agreement
North Korea has announced that it will no longer abide by the armistice at least 6 times, in the years 1994, 1996, 2003, 2006, 2009, and 2013.
On April 28, 1994, North Korea announced that it would cease participating in the Military Armistice Commission, but would continue contact at Panmunjom through liaison officers and maintain the general conditions of the armistice. North Korea stated it regarded the U.S. deployment of Patriot missiles in South Korea as terminating the armistice.
On May 27, 2009, North Korea announced it no longer felt bound by the armistice agreement. There were two isolated violent incidents in 2010, the ROKS Cheonan sinking (attributed to North Korea, despite denials) and the North Korean Bombardment of Yeonpyeong.
In 2013 North Korea argued the armistice was meant to be a transitional measure. North Korea had made a number of proposals for replacing it with a peace treaty, but the U.S. had not responded in a serious way. It further argued the Military Armistice Commission and Neutral Nations Supervisory Commission had long been effectively dismantled, paralysing the supervisory functions of the armistice. North Korea believes the annual U.S. and South Korean exercises Key Resolve and Foal Eagle are provocative and threaten North Korea with nuclear weapons. JoongAng Ilbo reported the U.S. vessels equipped with nuclear weapons were participating in the exercise, and The Pentagon publicly announced that B-52 bombers flown over South Korea were reaffirming the U.S. “nuclear umbrella” for South Korea.
In March 2013, North Korea announced that it was scrapping all non-aggression pacts with South Korea, along with other escalations such as closing the border and closing the direct phone line between the two Koreas. North Korea stated it had the right to make a preemptive nuclear attack. A United Nations spokesman stated the armistice agreement had been adopted by the U.N. General Assembly, and could not be unilaterally dissolved by either North Korea or South Korea. On March 28, 2013, the U.S. sent two B-2 Spirit stealth bombers to South Korea to participate in ongoing military exercises in the region, including the dropping of inert munitions on a South Korean bomb range. This was the first B-2 non stop, round-trip mission to Korea from the United States. Following this mission, North Korean state media announced that it was readying rockets to be on standby to attack U.S. targets. In May 2013, North Korea offered to enter into negotiations for a peace treaty to replace the armistice agreement.
In August 2016, North Korea installed anti-personnel mines to prevent potential defectors of its front-line border guards around the “Bridge of No Return,” situated in the Joint Security Area(JSA). The UN Command has protested this move as it violates the Armistice agreement which specifically prohibits armed guards and anti-personnel mines.
The U.S. position, as expressed in 2010, is that a peace treaty can only be negotiated when North Korea “takes irreversible steps toward denuclearization”.
Well, that looks like a UN Weenie trying to claim anything they do is forever, despite everyone else saying “it’s over”. Then, at the bottom, the UN Command says it violates the agreement, that would also mean it is functionally over.
So to me it looks like the whole Armistice thing is a legal red herring. It’s functionally over. It was signed by entities that no longer exist and was not signed by South Korea, China, or the USA as the USA.
All in all, it looks to me like Trump can go ahead and bomb any munitions and sites that are in violation of the armistice (and likely anything else as well) and be on acceptable legal footing.
But what I think doesn’t matter as lawyers have a peculiar way of thinking. So let’s ask the lawyers.
Disclaimer: I’m not a lawyer. I don’t even play one on TV or the internet. I known nothing about law other than contract law and what I learned as a Police Wanna Be Scout (so about 100 hours of training in those areas all told I’d guess) so don’t depend on me to say what is actually legal or what the armistice really means (besides, it looks like the Real Lawyers ™ don’t even know…) BUT if you want me to sound intimidating and nag them about a breach of implied contract on their deliverables, well, that I can do ;-) once you sign a contract to make me Project Manager… 9-0
The actual text is here. I’ve done a quick scan of it. To me, it is lacking a lot of the stuff I expect to see in contract. Who’s legal structure is used for interpretation. How disputes are settled. Terms for exit. It’s a nice little “aspirational goal” statement, but I’m not seeing much in the way of enforcement provisions or penalties for violation. Maybe I just don’t know how “international law” works, but it seems pretty weak tea to me.
Then there is a look at ending the armistice from a legal point of view and a critique of it here:
I. Legal Interpretations of the Korean War
II. The Armistice Agreement
III. Events Subsequent to the Geneva Conference
NAPSNet Invites Your Responses
This paper discusses the legal arrangements necessary to terminate the Korean War and to replace the current Armistice Agreement with a lasting peace. To that end, it discusses the numerous legal issues arising out of: (1) the tension between the war as, on the one hand, a civil war between the two Koreas and, on the other, an international war involving the armed forces of some 20 countries; (2) the unprecedented use of the United Nations’ name and flag by one side to the conflict; and (3) China’s insistence that the Chinese armed forces participating in the hostilities were only “volunteers.” The paper concludes that: (1) each of the governments contributing forces to the U.N. side was a belligerent in the war and is now technically a party to the Armistice; (2) although the Security Council and the General Assembly at various times endorsed one side to the conflict, the United Nations itself was not a belligerent and is not a party to the Armistice Agreement; and (3) the PRC, despite its disavowals, was a belligerent and is now a party to the Armistice. The paper recommends that the Armistice be supplanted by an agreement among the two Koreas, the United States, and China, accompanied by a resolution of the U.N. Security Council endorsing the agreements, pursuant to Chapter VII of the U.N. Charter, as necessary to the restoration and maintenance of international peace and security in Northeast Asia.
Now there’s just now way I can quote the whole thing here, or even enough to make sense of it. So “hit the link” if you want more than a couple of sample bits.
Here’s the response:
On March 3, the NAPSNet Policy Forum Online featured a paper by Patrick M. Norton, “Ending The Korean Armistice Agreement: The Legal Issues.” A set of questions based on the work was appended following the conclusion. The following response, drawing on these questions, was submitted by Kim Myong Chol, an ethnic Korean born and living permanently in Japan. Mr. Kim’s studies include graduate work in US foreign policy at Tokyo University. Mr. Kim worked as a reporter and editor at “The People’s Korea” and has written extensively on DPRK perspectives on Korean and international relations. To join this discussion, contact the NAPSNet Coordinator at: […]
Kim Myong Chol responds to these questions:
Is the Korean conflict most properly characterized as an international or a civil war? Norton finds fault in both the former position (the premise of UN involvement) and the latter position (held by the DPRK and PRC). What bearing does this problem have on strategies for pursuing peace on the Korean peninsula today?
Norton argues that the four-party peace talks proposal represents an accurate grouping of the major parties to the conflict “in practice.” Given the formal UN role as a party to the war and the Armistice, ought there be a role for the UN in any negotiations toward a peace treaty? In particular, what role might the UN Command allies such as the UK or Australia play in the UN debates which may occur over a proposal to end the Armistice?
Norton notes that the UN abrogated its own charter to involve itself in Korea, that it had no actual control over combat forces during open hostilities, that the UN had no role in the Geneva conference following the Armistice, and that today the DPRK is now a UN member. Do these considerations obviate any UN role in such negotiations?
Norton notes that during hostilities ROK forces were effectively under US control, and that the ROK (unlike the DPRK) was not a formal party to the Armistice. Yet he also argues that the DPRK’s insistence that negotiations for a peace treaty include the US but not the ROK are “polemical and without legal foundation,” given the ROK’s role since the Armistice. Does the DPRK position have a credible legal basis?
Is a formal peace treaty required to bring peace to the Korean peninsula? Norton notes that a peace treaty customarily follows an armistice, and that many interested parties have expressed such a need. However, he also notes that an armistice may evolve over time into a de facto peace treaty (although this has not happened among the major belligerents in Korea). Might more of a political focus (i.e. toward a “detente” rather than a treaty) ultimately prove more constructive than continued abortive efforts to convene formal negotiations?
How do decisions regarding bringing a formal peace to the Korean peninsula bear on the objective of Korean unification?
The Soviet military fought in the undeclared war, although Moscow denied US allegations at the time. Does this provide the legal or realpolitik basis for Russian participation in negotiations to end the Armistice, given the argument that the ROK obtains such a right by virtue of its military participation in the fighting on the Peninsula?
To me, it all looks like a giant Cluster Fondle of Legal Bits. Near as I can tell, there is no real governing law, no clear agreement between parties, not even a decent definition of who the parties are, and the whole thing has been violated and abrogated all over by all sides. But you can read they too and fro and see what you think. I’m going to quote a few semi-random bits from the first paper (bold added by me):
The issues are more complex than may appear at first glance. From a legal perspective the Korean War and the Armistice Agreement are anomalous in several respects: (1) there was from the outset a fundamental tension between the character of the war as, on the one hand, a civil war between the two Koreas and, on the other, an international armed conflict between the armed forces of some twenty different countries; (2) for the first time the armed forces on one side of an international armed conflict fought under the flag of the United Nations; and (3) one of the principal belligerents, China, insisted that it was not, in fact, a belligerent and that Chinese armed forces engaged in the conflict were only “volunteers.” The passage of many years and inconsistent positions taken by all of the interested parties as it has suited their purposes have compounded the legal uncertainties resulting from these anomalies.
And on July 7, 1950, the Council adopted its Resolution 84(V), “recommending” that Members provide military forces and assistance “to a unified command under the United States,” requesting the United States to designate the commander of such forces,” and authorizing “the unified command at its discretion to use the United Nations flag in the course of operations against North Korean forces concurrently with the flags of the various nations participating.”
Unless 84(V) was rescinded, looks to me like The USA still has the lead as it feels like it.
The Korean War was the first major armed conflict after the founding of the United Nations and immediately called into question the applicability and effectiveness of the peacekeeping provisions of the U.N. Charter,13 which had superseded in large part the customary international law of war (jus ad bellum).14 The governments contributing to the United Nations Command (“UNC”) expressly invoked the new Charter Law, characterizing their participation in the armed conflict as a “collective action” resisting an “aggression” identified as such by the Security Council.15 By cloaking their operations in the mantle of the United Nations, these governments were able, among other advantages,16 to claim that theirs was a “just war” and, as a consequence, that non-belligerent states were not free to assume the traditional rights and duties of neutrals but were, rather, obligated to “tilt” in favor of the U.N. side.17
For their part, the DPRK, the PRC, and their supporters preferred to characterize the conflict as an internal Korean one. In such a “civil war,” they argued, no foreign forces could properly intervene, and the United Nations had no proper role.18 This position was one of the reasons that the PRC chose to cloak its intervention in the guise of “volunteers.”
Neither side’s legal position, however, stood up to scrutiny. The recommendatory, rather than mandatory character of the Security Council resolutions authorizing a “unified command,” adoption of these resolutions in the fortuitous absence of a Permanent Member (the Soviet Union) that was known to oppose them, failure of the UNC structure to follow the procedures specified in Chapter VII of the Charter for United Nations “enforcement actions,” and lack of any explicit Charter basis for the General Assembly’s Uniting for Peace resolutions caused most observers to conclude that the action in Korea was not an action “of the United Nations” but, at most, an action “sanctioned by the United Nations,” or “under the auspices of the United Nations.”19 By the same token, the contention of the Communist side to the Korean hostilities that this was a “civil” conflict in which the U.N. side was impermissibly intervening was untenable, at least after the PRC’s intervention.20
So even the legal basis of the war, and if it be a war between two parties or a “Civil War” is ill defined. If a “Civil War” and South Korea invites our help… Just sayin’…
1. The United Nations Side
Security Council Resolution 84(V) of July 7, 1950, authorized a “unified command under the United States.” The United States interpreted this authorization as constituting the United States itself, in its sovereign capacity, as the “Unified Command.”24 Fifteen nations other than the United States contributed forces to serve under the Unified Command.25 The United States then created, as an entity theoretically separate from and subordinate to the Unified Command, the “United Nations Command,” which it described as an “international field force” conducting the actual hostilities.26 The military contingents from other participants were placed directly under the UNC,27 and the ROK placed its troops under the operational command of the UNC.28
Throughout the conflict, the United States and its allies emphasized the U.N. character of their actions. Secretary of State Acheson described the Korean operations as being “under the aegis of the United Nations and … not a question of the whole series of nations acting independently to the same result.”29 The U.N. Commander generally characterized his forces as “United Nations forces,” and various of the contributing states made clear that their offers of assistance were to the United Nations.30 One leading legal commentator has concluded that: “There can be no doubt that, in practice, the overwhelming majority of states involved in the Korean action were fully prepared to regard it as a United Nations action involving United Nations Forces.”31
Many actions of the United Nations can also be cited to support the view that the United Nations itself regarded the forces under the UNC as “United Nations forces.” At least three General Assembly resolutions (Nos. 376(V), 483(V), and 498(V)) referred to them as such. And Security Council Resolution 84(V) specifically authorized the “unified command” to fly the U.N. flag.
So the UN via the UNC is a party to the Armistice, but the USA is not, other than any duty to the UN. Since the UNC no longer exists, it would be up to the USA, provided the resolutions were not rescinded, to reconstitute it if needed to restart things… I think… maybe…
Then yet more “what a mess” for S. Korea and the other side:
2. The Role of South Korea
The insistence of the U.N. participants on fighting under at least the auspices of the United Nations also called into question the position of the ROK. The obvious victim of the aggression that started the war and the bearer of the brunt of the casualties on the U.N. side,38 the ROK had been recognized by the U.N. General Assembly prior to the war as the legitimate government in the part of Korea that it controlled.39 Nevertheless, because ROK armed forces were placed directly under the UNC, effectively placing U.S. officers in command of South Korean troops, the political position of the ROK in the conflict was obscured. This was compounded when the Armistice Agreement was signed for all participants on the U. N. side by the U.N. Commander, i.e., a U.S. general, and the ROK, in contrast to the DPRK, did not itself sign the Armistice.
3. The Communist Parties to the Korean War
The status of the Communist forces was subject to other uncertainties. The DPRK was not recognized as a de jure government of an independent state. In order that it could be regarded as a responsible party for applying the laws of war and as a potential party to the Armistice, it was necessary that the DPRK be accorded some form of legal status or “personality.” The U.N. side therefore implicitly recognized the DPRK as a “belligerent” (a sort of de facto recognition for purposes of the law of war), although the articulations of even this position were somewhat ambiguous.40
More problematic was the PRC’s characterization of its millions of troops as “volunteers.” The PRC so characterized its participation in the conflict for several reasons: to preserve the Communist characterization of the war as a “civil war”; to preserve its position that the PRC did not intervene in the internal affairs of other states; and, most importantly, to ensure that its participation in armed hostilities was confined to Korea.
The General Assembly specifically rejected the PRC’s characterization of its role when it found in Resolution 498(V) that the PRC was itself an “aggressor” in Korea.41 The PRC, too, repeatedly contradicted its own position, for example when it appeared at the United Nations to defend Chinese intervention on the grounds of self-defense,42 or when it made demands by diplomatic note that third parties observe neutral duties.43 For present purposes, the important consideration is that China’s solicitude for its ostensible neutrality and the unwillingness of the other belligerents to confront China on the issue led to the Commander of the “Chinese People’s Volunteers” signing the Armistice.
Then this bit seems to say just violating it does not make it go away, but is unclear as to what “belligerents” it binds. South Korea? China? USA? Or just the signatories of UNC and N. Korea?
It further states that the “conditions and terms [of the Armistice] are intended to be purely military in character and to pertain solely to the belligerents in Korea.” Paragraph 60 of the Agreement provided that “the military commanders of both sides hereby recommend to the governments of the countries concerned on both sides that … a political conference of a higher level of both sides be held….” Paragraph 62 provided that the Armistice “shall remain in effect until expressly superseded . . . by provision in an appropriate agreement for a peaceful settlement at a political level between both sides.”44
I think you can make a case that it is binding on the UN and North Korea and nobody else. At least long enough to bomb the snot out of someone and then say “Ooops. My bad.”
It looks to me like this is the bit that lays out the thorns most directly:
C. THE PARTIES TO THE KOREAN ARMISTICE AGREEMENT
The Korean Armistice Agreement is signed by military commanders and is stated to be “purely military in character” (Preamble). Nevertheless, international law has consistently regarded general armistices as of such political significance that they can only be concluded on behalf of the sovereignty of the state.57 As a consequence, although almost invariably signed by military commanders, as in the Korean case, general armistices are universally recognized as binding states.58 Which states are bound is less clear. The Armistice is studiously ambiguous in this regard, referring to “the governments of the countries concerned” (para. 60), a “political conference of both sides” (id.), and a “peaceful settlement at a political level between both sides” (para. 62).
The relationship of the DPRK to the Korean Armistice Agreement conforms to the traditional rules of international law most clearly. Although signed by Kim Il Sung in his capacity as military commander, the Agreement clearly binds the DPRK as such.59
The statuses of the “United Nations Command” and the “Chinese People’s Volunteers” are more problematic. By all objective criteria, the PRC itself was a belligerent in the hostilities. This belligerent status, the rule of customary international law that the parties to general armistices are states and not military authorities, and the PRC’s participation in the 1954 Geneva Conference argue persuasively for considering the PRC itself as a party to the Korean Armistice Agreement. The PRC, moreover, implicitly conceded the point in a series of diplomatic notes invoking rights under the Armistice, which were sent by the Ministry of Foreign Affairs through the British Embassy in Beijing to “the Governments of the other countries on the United Nations Command side.”60 Nevertheless, China’s insistence during the hostilities that it was not a belligerent, and the acquiescence of most of the U.N. side, at one time or another, in that position, gives rise to some ambiguity on this issue.
Throughout the hostilities, the United States and other participants in the UNC maintained that it was the United Nations itself that was engaged in the hostilities. This and the fact that the Armistice Agreement is signed by the “Commander-in- Chief, United Nations Command” have sometimes caused observers to conclude that the United Nations is a party to the Agreement.61 Conversely, the DPRK has long argued that the U.N. Commander was a U.S. general, that it was, therefore, the United States alone that adhered to the Agreement, and that none of the other participants in the UNC, including the ROK, can properly participate in negotiations to supersede the Armistice Agreement.62
The evidence, however, supports neither position. Paragraph 60 of the Armistice specifically suggests that “the governments of the countries concerned on both sides” hold a “political conference of a higher level of both sides … to settle through negotiation the questions of the withdrawal of all foreign forces from Korea, the peaceful settlement of the Korean question, etc.” It thus clearly contemplates that the governments of individual participants, rather than the United Nations, are the real parties in interest here.
It goes on for a few more paragraphs from there. Read it and scratch your head. Copious Scotch, Gin, or Vodka advised.
IMHO, it is such a legal mess that the USA can do whatever it wants and let the thing go to the lawyers for about 40 years. None of the people in power will be alive then so none will care what is finally decided.
Which, IMHO again, puts this all squarely as a Political and P.R. issue.
But at least we know what the legal types think…
To Bomb, or Not To Bomb, that is the question…
Personally, were I POTUS, I’d wait for a missile test launch, then completely flatten the launch site, ALL the nuclear facilities including fab and labs, and any forces within 50 miles of the DMZ that have the capability to shoot over it. Oh, and send a MOAB or related to The Little Kim and all his palaces, bunkers and parade stands.
After that, ask if “Anyone else want to negotiate?”…
Then invoke the peace negotiations part of the Armistice and “Get ‘er done”.
The cost of the post event legal budget would be far far less than the cost of housing an army or two in Korea.