The Case for a Peace Agreement to End the Korean War

Path

to Peace

e Case for a Peace

Agreement to End

the Korean War

Korea Peace Now! Women Mobilizing to End the War | February 2021

2 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

Path to Peace: The Case for a Peace Agreement to End the Korean War

February 2021

Korea Peace Now! Women Mobilizing to End the War, a global campaign to end the Korean War, produced the

present report to assess how a peace-ﬁrst approach can resolve the security crisis on the Korean Peninsula.

This report is a collective work that beneﬁted from

months of consensus-building and input.

Korea Peace Now! would like to acknowledge

in particular Henri Féron, Senior Fellow at the

Center for International Policy, as project lead.

This report is the collective work of the following people:

Ray Acheson, Director of Reaching Critical Will, Women’s

International League for Peace and Freedom (WILPF)

Christine Ahn, Executive Director, Women

Cross DMZ (Chapter V, “Why Women Should

Be Involved in the Peace Process”)

Kozue Akibayashi, Professor at Doshisha University,

former International President of Women’s International

League for Peace and Freedom (WILPF) (Chapter V,

“Why Women Should Be Involved in the Peace Process”)

Elizabeth Beavers, Advocacy Advisor, Women

Cross DMZ (Chapter III, “The Implications of

a Peace Agreement for Human Rights”)

Maria Butler, Director of Global Programmes, Women’s

International League for Peace and Freedom (WILPF)

Youngmi Cho, Executive Director of Korean Women’s

Movement for Peace (Chapter V, “Why Women

Should Be Involved in the Peace Process”)

Henri Féron, Senior Fellow, Center for International Policy

Catherine Killough, Advocacy and Leadership

Coordinator, Women Cross DMZ

Gwyn Kirk, Ph.D. (Chapter V, “Why Women

Should Be Involved in the Peace Process”)

YouKyoung Ko, Consultant, Women’s International

League for Peace and Freedom (WILPF)

Hyun Lee, US National Organizer, Women Cross DMZ

Marie O’Reilly, Gender, Peace and Security

Consultant (Chapter V, “Why Women Should

Be Involved in the Peace Process”)

Kathleen Richards, Communications

Director, Women Cross DMZ

Korea Peace Now! would also like to thank Kevin Gray,

Ph.D., Professor of International Relations at the University

of Sussex; Suzy Kim, Ph.D., Professor of Korean History

at Rutgers University; and Paul Liem, Korea Policy

Institute, who contributed their feedback and review.

External contributions were made by Lt. Col. Daniel

Davis, Senior Fellow and Military Expert at Defense

Priorities; Jessica Lee, Senior Research Fellow on East

Asia at Quincy Institute; Adam Mount, Senior Fellow and

Director of the Defense Posture Project at the Federation

of American Scientists; and Hazel Smith, Professorial

Research Associate at SOAS, University of London.

These external contributions are strictly independent

from the Korea Peace Now! campaign and represent

the personal views of the contributors. Their afﬁliations

are for identifying purposes only and do not represent

the views of those institutions unless speciﬁed.

Edited by Kathleen Richards

Copyedited by Anne Louise Mahoney

Korea Peace Now! Women Mobilizing to End the War is a

global coalition of women’s peace organizations – Korean

Women’s Movement for Peace, Women’s International

League for Peace and Freedom, and Women Cross

DMZ – calling for an end to the Korean War with a peace

agreement and women’s inclusion in the peace processes.

Korea Peace Now! would like to acknowledge

Canada’s Peace and Stabilization Operations

Program (PSOPs) for its grant to the Nobel Women's

Initiative, which made this report possible.

DRAFT

Executive Summary

Despite years of negotiations, the United States, North

Korea, and South Korea remain locked in a dangerous

stando. is stalemate perpetuates the worsening secu-

rity crisis on the Korean Peninsula, which poses an exis-

tential threat to millions of people.

is crisis is a direct result of the unresolved Korean

War, which was halted only by a fragile armistice and is

the root cause of tensions and hostilities on the Korean

Peninsula. e unresolved state of the Korean War fuels

increasing militarization and carries major political and

economic costs.

Attempts to force North Korea’s unilateral denucle-

arization through pressure have continuously failed.

To assess how a peace-rst approach can help resolve

the security crisis on the Korean Peninsula, the Korea

Peace Now! campaign has produced the present report

to examine the political and legal ramications of a

peace agreement. e authors examine the implications

that a peace agreement would have on top US prior-

ities, including the nuclear dispute, the human rights

situation, and the US–South Korean alliance. Addi-

tionally, the report highlights the legal and practical

reasons for including women in a peace process to end

the Korean War.

Key Findings

e rst step in resolving the armed stando should be

to agree to forgo use of force in its resolution. is mutu-

ally benecial ground rule would sap the tensions driving

the main security risks, the uncontrolled militarization,

and the human costs of war.

A peace agreement including the United States and

the two Koreas would bindingly end the state of war,

recognizing that wartime rights to use force have ended

once and for all. Other commonly proposed instruments,

such as end-of-war declarations, nonaggression agree-

ments, or normalization agreements, do not necessarily

end a state of war.

A peace agreement would reduce the risk of nuclear

war and facilitate talks on disarmament or arms control.

A peace agreement that ends the wartime status quo and

enables the normalization of US–North Korean relations

may create the conditions for more eective engagement

on denuclearization by curbing the security risks fueling

North Korea’s pursuit of nuclear weapons. A peace agree-

ment would not legally imply recognition of North Korea

as a “nuclear weapons state.”

e unresolved Korean War has had a negative human

rights impact on all parties. Governments have diverted

resources toward militarism and away from people’s wel-

fare and have imposed restrictions on civil liberties in the

name of security. Pressure has failed to improve human

rights. While a peace agreement to resolve the Korean

War is not a panacea, it would improve people’s lives, sap

the militarism that undergirds abuses, and create the con-

ditions to engage more eectively on human rights.

A peace agreement would also improve the national

security of South Korea and the United States and create

space to recalibrate their relationship in ways that better

t contemporary circumstances and interests. A peace

agreement would not legally imply the end of the alliance

or a withdrawal of US troops, unless otherwise specied.

It would imply dissolution of the Armistice and the “UN

Command.”

Women have a particular stake in resolving the Korean

War due to the gendered impacts of war and militarism.

Despite a rich history of organizing through grassroots

action on the Peninsula and internationally, only very few

have been invited to formal peacemaking initiatives. Sev-

eral sources of international law, including the Women,

Peace, and Security framework, mandate women’s inclu-

sion. Research shows that such inclusion contributes to

more durable peace.

e report recommends that the United States, South

Korea, and North Korea immediately conclude a fair and

binding peace agreement that acts as a nal settlement of

the war and serves as a foundation for a peace regime.

EXECUTIVE SUMMARY 3

4 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

DRAFT

Introduction

I. Why the Armistice Should Be Replaced with a Peace Agreement

What Is a Peace Agreement?

Parties to a Peace Agreement

II.e Implications of a Peace Agreement for Denuclearization

Background: The Nuclear Dimension of the Korean War

Application: Peace as Nuclear De-escalation

III. e Implications of a Peace Agreement for Human Rights

IV. e Implications of a Peace Agreement for US–ROK Relations

V. Why Women Should Be Involved in the Peace Process

VI. Recommendations

Annex I: Ratication of a Peace Agreement

US Ratiﬁcation

South Korean Ratiﬁcation

North Korean Ratiﬁcation

External Contributions

Table of Contents

TABLE OF CONTENTS 5

6 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

DRAFT

Despite several meetings between the leaders of the

United States and North Korea (Democratic People’s

Republic of Korea/DPRK) in recent years, the two

countries have failed to make meaningful progress in

negotiations on peace and denuclearization. is stale-

mate perpetuates the worsening security crisis on the

Korean Peninsula, which has remained a vexing prob-

lem for current and past US administrations and poses

an existential threat to millions of people on the Korean

Peninsula, in Northeast Asia and the United States, and

around the world.

For the last 30 years, the United States has tried to

force North Korea to unilaterally denuclearize. While

there have been some agreements, these eventually col-

lapsed, and over time both sides increasingly hardened

their position. e more the United States engaged in a

coercive diplomacy leveraging military shows of force,

economic sanctions, and diplomatic isolation, the more

North Korea pursued economic self-reliance and nu-

clear weapons development. Despite being one of the

most isolated, pressured, and sanctioned countries in

the world, North Korea now has more nuclear weap-

ons than ever, and its intercontinental ballistic missiles

may have the capability to strike anywhere on the US

mainland.

e United States and North Korea came dangerous-

ly close to military action in 2017,

when US President

Donald Trump threatened to “totally destroy North

Korea”

and Pyongyang responded that its “rocket”

would inevitably “visit” the US mainland.

Tensions re-

ceded in 2018 after the conclusion of condence-build-

ing agreements between North Korea and South Korea

(Republic of Korea/ROK) and between the United

States and North Korea. In the Panmunjom Declara-

tion of April 2018, the two Koreas called for a peace

agreement in talks with the United States and poten-

tially China.

A couple of months later, in June 2018,

Washington and Pyongyang adopted the Singapore

Declaration, in which they committed to establish “new

U.S.-DPRK relations” based on “peace and prosperity.”

ose declarations also included a commitment to work

toward the “denuclearization of the Korean Peninsula.”

However, Trump maintained maximum pressure and

demanded at the Hanoi Summit of February 2019 that

North Korea fully dismantle its nuclear weapons pro-

gram, including chemical and biological weapons and

ballistic missiles, which North Korea rejected.

US in-

telligence had warned for years that North Korea was

unlikely to denuclearize, as it saw its nuclear weapons

as a “ticket to survival.”

In January 2020, Kim Jong Un

gave up on talks, making it clear he didn’t see sanctions

Introduction

In April 2018,

South Korean

President Moon

Jae-in and North

Korean leader

Kim Jong Un met

at Panmunjom

and called for a

peace agreement.

Credit: VOP

INTRODUCTION 7

8 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

relief as sucient and declaring that his country “will

steadily develop indispensable and prerequisite stra-

tegic weapons for national security until the US rolls

back its hostile policy and a lasting and durable peace

mechanism is in place.”

Without a resolution, the risk

of a renewed open conict on the Korean Peninsula

remains high.

is crisis is a direct result of the unresolved Korean

War, which was halted only by a fragile armistice 67

years ago and is the root cause of tensions and hostili-

ties on the Korean Peninsula. While the consequences

of this long-delayed peace unfold, most clearly in the

nuclear crises that iname US–North Korean relations,

the ongoing state of war exacerbates human suer-

ing through the continued division, displacement, and

deprivation of people in the region. Formally ending

the Korean War with a peace agreement would improve

the security of all sides and help create better condi-

tions for denuclearization. A peace agreement would

also positively impact human rights and inter-Korean

relations, as well as allow the reunion of tens of thou-

sands of families that have remained separated for three

generations and whose time is running out.

For all of these reasons, Korea Peace Now! Women

Mobilizing to End the War, a global coalition of wom-

en’s peace groups, is calling for an ocial end to the

Korean War with the signing of a peace agreement and

women’s inclusion in the peace process. e inclusion

of women and civil society groups in peace processes, in

particular, has been shown to improve outcomes

and is

mandated by international law and national law in the

United States, South Korea, and dozens of other coun-

tries.

However, thus far, very few women have been

involved in ocial talks on the resolution of the secu-

rity crisis in Korea. Furthermore, our goals include the

tangible demilitarization of the Korean Peninsula and

redening security away from militarism and war and

toward a feminist understanding that centers human

needs and ecological sustainability.

Few reports have focused specically on a peace

agreement as the main mechanism to resolve the se-

curity crisis on the Korean Peninsula.

Most reports

attempt to resolve the nuclear dispute without rst

ending the war that fuels it. ose that address a peace

agreement at all often raise concerns about its possible

impact on denuclearization, human rights issues, or the

future of the US–ROK alliance.

In the United States,

there are still calls to focus on what would eectively be

a North Korean surrender: forcing the unilateral disar-

mament of the country through pressure.

Decades of

failure in the pursuit of this goal have led to growing

recognition of its limits and risks, including the threat

of renewed conict, nuclear proliferation, and the ongo-

ing human costs of war.

Alternatively, diplomacy-ori-

ented proposals focus on phased trust-building and

threat-reduction processes to address the insecurities

at the root of the crisis.

e current deadlock and re-

versal of gains following the 2018 diplomatic break-

through highlights how vulnerable these multi-stage

processes remain.

is report argues for a new approach that prioritizes

a nal settlement of the Korean War at the beginning

of any threat-reduction process.

Unlike most US poli-

cy proposals that condition peace on North Korea’s de-

nuclearization rst, or in a parallel process, this report

calls for the immediate conclusion of a peace agreement

that ends once and for all any outstanding wartime

claims of the right to use force.

e chapters that follow seek to address any uncer-

tainties regarding a peace-rst approach. Chapter I

outlines the unsustainability of the status quo approach

and details the consequences of the unended Korean

War in terms of its insecurity, growing militarism, and

human costs. It also makes the case for a peace agree-

ment, provides a technical overview of the various other

instruments for peace, and explores the possible parties

to a peace agreement. Chapters II to IV examine the

implications that a peace agreement would have on top

US priorities, namely the nuclear dispute, the human

rights situation, and the US–ROK alliance. Chapter V

relays women’s historic eorts for peace in Korea and

argues for the inclusion of women in a peace process to

end the Korean War. e report concludes with recom-

mendations of principles for a peace agreement.

Additionally, this report includes external contri-

butions from independent authors whose expertise on

human rights, nuclear weapons, the US–ROK alliance,

and the costs of war furthers the discussion of how a

peace agreement can resolve the security crisis on the

Korean Peninsula. While there is a strong consensus

among the authors that the current approach to North

Korea policy is unsustainable and impractical, their em-

phasis on how best to achieve a peaceful resolution may

dier. eir contributions nevertheless demonstrate a

growing recognition of the need for peace in US–North

Korea policy going forward. Each author’s views do not

represent the position of Korea Peace Now! and this

report does not necessarily represent each author’s com-

prehensive position.

Because of the urgent need to advance the ongoing

debate on US policy toward North Korea, we focused

this report specically on a peace agreement because

we believe it is the most viable and eective frame-

work for resolving the security crisis. We do not claim

to settle the entire conict but aim to build upon the

already strong body of research regarding the dierent

possible models for peace on the Korean Peninsula. We

recognize that a peace agreement is just the rst step on

the long road to our ultimate vision of a lasting peace,

which would entail reversing the militarization result-

ing from seven decades of hostile relations and replac-

ing the Cold War structure with a regional peace and

cooperation framework. It is our hope that this report

contributes to the tireless eorts of all those who boldly

refuse to accept the status quo and envision a future

free from war, suering, and nuclear weapons.

DRAFT

e unresolved state of the Korean War poses daunting security risks, fuels

increasing militarization, and carries major political and economic costs for people

living on the Korean Peninsula and in the United States. is chapter lays out

the high stakes of the ongoing war and why the Armistice agreement must be

replaced with a binding peace agreement. It explains what a peace agreement is

compared to other types of agreements and why it is the best way to resolve the

security crisis on the Korean Peninsula. And it lays out the concrete steps toward

a peace agreement, why the United States and the two Koreas are the most critical

parties to a peace agreement, and how to make the peace agreement binding.

BACKGROUND: THE KOREAN WAR

e unresolved Korean War serves as the historical

backdrop to the escalating cycle of tensions in reaction

to North Korea’s weapons program. Korea’s indepen-

dence from Japan’s colonial rule (1910–1945) at the end

of World War II led to the division of the Peninsula by

the United States and the Soviet Union into separate

southern and northern occupational zones, respectively.

What began as a period of liberation for Koreans be-

came an international conict between Cold War blocs

resulting in the outbreak of the Korean War in 1950,

with the intervention of the United States on the side

of South Korea, and China on the side of North Korea.

e ghting resulted in more than 4 million casualties,

and millions of families have been torn apart by the

continued division of the Korean Peninsula.

e Unit-

ed States, South Korea, and North Korea technically

remain in a state of war, as ghting ended in a stale-

mate, with an armistice rather than a peace agreement.

(See the “Parties to a Peace Agreement” section.)

Nearly seven decades later, North and South Korea

remain separated by the most heavily militarized bor-

der in the world, with the armed forces of both sides

ready and primed to engage in combat at a moment’s

notice. e core tensions at play today are not so much

between the two Koreas as they are between the North

and the South’s ally, the United States, which stations

around 28,500 soldiers in South Korea. Although the

two Koreas have at various times called for peaceful

reunication and concluded numerous reconciliation

agreements,

the escalating nuclear crisis between North

Korea and the United States has become the greatest ob-

stacle to peace.

IMPROVING SECURITY

AND HALTING MILITARISM

e irony of the unresolved Korean War is that the Ar-

mistice is frequently credited with keeping the peace. A

US-ROK Joint Communique in October 2018 stated

that the “United Nations Command, as the keeper of

the Armistice, has helped successfully maintain peace

and security on the Korean Peninsula over the past

65 years.”

By the same logic, opponents of a peace

agreement have framed peace as an invitation for war, a

North Korean ploy to get the United States and South

Korea to lower their guard.

ese claims obfuscate

the actual balance of power on the Peninsula today and

gloss over the mutual benets that a peace agreement

Why the Armistice

Should Be Replaced with

a Peace Agreement

CHAPTER I

CHAPTER I: WHY THE ARMIMSTICE SHOULD BE REPLACED BY A PEACE AGREEMENT 9

10 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

would foster, including much-needed military de-escala-

tion and trust-building.

In the absence of diplomatic relations, the Korean

War maintains a low-trust, low-communication envi-

ronment with few safeguards against escalation. is has

needlessly raised the risk of an intentional or accidental

clash,

which would be particularly dicult to contain.

Nowhere else on earth are opposing militaries so primed

and trained to engage in large-scale oensives or count-

er-oensives on momentary notice.

Koreans would be rst in the line of re and suer

the gravest human losses if combat resumed. In the pe-

riod of 1950 to 1953, there were over 3 million Korean

casualties – an estimated 2 million of which were civil-

ians – and every major city in the North was reduced to

rubble.

at represented a staggering 10 percent of Ko-

rea’s population at the time.

If war broke out today, it

is estimated that as many as 300,000 people could die in

the rst days of conventional ghting, and that number

could swell to millions in the event of a nuclear war.

At the heart of the security crisis and increasing mil-

itarization of the Korean Peninsula is the ongoing state

of war. Today, most of South Korea’s defense budget –

the tenth highest in the world – remains tailored to the

eventuality of combat with the North and now grows at a

rate of about 7 percent per year.

North Korea’s increas-

ing militarization is evident in its rapid nuclear develop-

ment, which it claims is necessary to protect itself from

the United States. North Korea is estimated to possess 30

to 40 nuclear warheads,

and its intercontinental ballistic

missiles may have the capability to strike anywhere in the

United States. ese developments have in turn prompt-

ed South Korea to develop a “Kill Chain” preemptive

strike doctrine and a “Korean Massive Punishment and

Retaliation” counterstrike doctrine, including “decapitation

strikes” on the North Korean leadership.

e United States, the biggest military spender in the

world,

extends its nuclear umbrella to the Peninsula

and maintains about 28,500 troops in South Korea. It

also participates in several large-scale joint military exer-

cises with the South, some of which involve nuclear-ca-

pable bombers and aircraft.

ese exercises have been

a particular source of tension with North Korea, which

considers them oensive rehearsals for invasion, despite

Washington’s claims to the contrary.

e militarization of the Korean Peninsula has ripple

eects throughout the region. In the context of rising

US–China tensions, China has been developing a pano-

ply of military capabilities, sometimes referred to as A2/

AD (anti-access/area denial), designed to neutralize US

forces in the vicinity of the Chinese mainland, includ-

ing capabilities with the range to aect US operations

around the Korean Peninsula and Japan.

e two Koreas, the United States, and China have

capitalized on their military development through the

exportation of arms beyond the region. According to the

Stockholm International Peace Research Institute, the

United States was the largest arms exporter in the world

in the 2015–2019 period (36% of global total), China the

fth (5.5%), and South Korea the tenth (2.1%).

Arms

US bombers

destroy supply

warehouses and

dock facilities in

Wonsan, North

Korea, in 1951.

e Korean War

devastated the

Korean Penin-

sula, resulting

in more than 4

million casualties.

Credit: USAF

DRAFT

trade from North Korea has come under intense interna-

tional scrutiny as it is conducted covertly and with even

less transparency or regulatory supervision than the other

countries.

With nearly all trade banned under UN and

US sanctions, North Korea has attempted to recoup its

losses through smuggling and illicit activities.

e militarization will continue to run unchecked un-

less and until the belligerents muster the political will to

end the war with a peace agreement and work to reverse

the militarization in a peace regime that establishes

cooperative security, for instance through arms control,

military condence-building, and phased disarmament.

ENDING THE HUMAN COSTS OF WAR

Beyond the risk of nuclear confrontation, however, the

human costs of the unresolved Korean War are ongoing

and immediate. e continued division of the Korean

people prevents the reunion of long-separated families.

e encroaching militarization of the region has dispos-

sessed local communities and threatens to cause irrepara-

ble harm to the environment. Sanctions, too, continue to

have a detrimental impact on civilians’ livelihoods, crip-

pling North Korea’s healthcare system and causing delays

in the delivery of life-saving humanitarian aid.

e economic consequences of the war have been

particularly crushing in the North. Practically razed to

the ground by US carpet-bombing in 1950–1953, it has

rebuilt itself aiming for a model of economic self-reli-

ance.

e collapse of the Soviet Union in 1991 further

isolated the North, contributing to a catastrophic eco-

nomic crisis and famine. While North Korea managed

over time to adjust and somewhat stabilize its economy,

it is today boxed in by the US-led “maximum pressure”

campaign, which has resulted in a quasi-total embar-

go.

Nearly all trade, investment, and nancial transac-

tions involving North Korea are banned under penalty

of exclusion from the dollar-based globalized economy.

e perpetual state of war and fear of destabilization

have given rise to national security apparatuses and a

culture that have curtailed individual freedoms in both

North and South Korea. North Korea’s political system

is rigid and hierarchical to the point of resembling a

military chain of command. ere is little to no space to

voice dissent or organize independently from the state.

(See Chapter III, “e Implications of a Peace Agree-

ment for Human Rights.”) North Koreans who try to

leave the country without authorization are also heavily

punished, as deserters would be in a military context. In

South Korea, society underwent violent political repres-

sion from the country’s founding and during the military

dictatorship era. While democratization in 1987 greatly

expanded personal freedoms, the war continues to distort

political life. Allegations of North Korean sympathy are

used to suppress a wide variety of views, as exemplied

by excessive interpretations of the dictatorship-era Na-

tional Security Act, electoral interference by the National

Intelligence Service in 2012, and the dissolution of the

third-largest party in South Korea in 2014.

An agreement between the warring parties would

set the foundation for a durable peace that can succeed

where pressure has failed for decades. e endless war

has so deteriorated mutual trust that both sides to the

stando remain too suspicious of the other to lower

their weapons. Under these circumstances, negotiations

on complex issues – from denuclearization to human

rights – are tense, inexible, and fruitless, if they hap-

pen at all. A comprehensive peace agreement, however,

can provide a foundation for the negotiation of such

critical issues of interest to the parties and relieve the

continued human costs of war.

What Is a Peace Agreement?

is report uses the term “peace agreement” to mean an

international legal instrument that solemnly, bindingly,

and permanently ends the state of war.

is is dier-

ent from an armistice, which merely imposes a ceasere

but does not end the state of war.

It is also dierent

from a peace regime, which refers to the possibility of

future security arrangements ensuring that peace re-

mains lasting and stable.

In recent years, all sides have agreed to the end goal of

a “lasting and stable peace regime.”

Many instruments

have been proposed to advance this goal, from end-of-

war declarations to nonaggression pacts to normaliza-

tion agreements. Of all options, a binding and nal peace

agreement has the most chance for success.

A peace agreement would signify that the parties

recognize once and for all, with no ambiguity, that any

wartime rights to use force have ended.

It would also

be the clearest available expression of the parties’ sin-

cerity in building toward a fair, lasting, and stable peace

regime. e two Koreas have together called for talks

with the United States, and optionally China, to replace

the Armistice with a peace agreement.

Further delay

in this long-overdue step will continue to undermine

trust and fuel military tensions.

CHAPTER I: WHY THE ARMIMSTICE SHOULD BE REPLACED BY A PEACE AGREEMENT 11

If war broke out today, it is

estimated that as many as

300,000 people could die in

the ﬁrst days of conventional

ﬁghting, and that number

could swell to millions in the

event of a nuclear war.

12 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

End-of-War

Declaration

Also referred to as a

“peace declaration,” an

end-of-war declaration

is generally framed in

the Korean context as a

nonbinding political decla-

ration that is not a peace

agreement. In the Pan-

munjom Declaration, the

two Koreas called for three

distinct items: an end-of-

war declaration, a peace

agreement, and a peace

regime.

More recently,

South Korean President

Moon Jae-in renewed his

call for an end-of-war dec-

laration at the UN General

Assembly on September

23, 2020.

An end-of-war declaration

is not a legal term of art. It

is only binding under inter-

national law if the parties

intend it to be binding.

It also only legally termi-

nates the state of war if the

parties indicate that this is

what they intend.

Since

an end-of-war declara-

tion does not necessarily

legally end a state of war,

there are limits to such

an agreement’s ability to

provide the parties with

sucient security assur-

ances to build trust and

realize a lasting and stable

peace regime.

But an end-of-war decla-

ration, even if nonbinding,

can still serve as important

evidence that the parties

consider the war end-

ed, especially if paired

with other steps like the

establishment of diplomat-

ic relations.

Aside from

any legal implications, an

end-of-war declaration

would carry great politi-

cal momentum toward a

binding and durable peace

agreement.

Nonaggression

Agreement

A nonaggression agree-

ment is generally under-

stood as an agreement in

which the parties renounce

hostile acts against each

other. Agreements purely

focused on nonaggression

have become rare today,

given the advent of the

United Nations Charter and

the development of the

law of armed conﬂict. The

Charter already requires

all members to refrain from

use of force and to settle

disputes peacefully.

It is

nevertheless not uncom-

mon to include nonaggres-

sion clauses in bilateral

agreements.

The two Koreas have

already pledged nonaggres-

sion, beyond the Armistice

requirement of a “complete

cessation of all hostilities

by all armed forces under

[the parties’] control.”

The

Inter-Korean Basic Agree-

ment of 1991, for instance,

requires both sides not

to “use force” or conduct

“armed aggression” against

each other.

There is less clarity between

the United States and North

Korea. The United States

did state in the Six Party

Joint Statement of Septem-

ber 19, 2005, that it had “no

intention to attack or invade

the DPRK with nuclear or

conventional weapons,”

but that could nevertheless

be interpreted more as a

statement of intent at the

time than a commitment

to nonaggression.

The

United States committed in

the Singapore Declaration

of 2018 to provide “security

guarantees” to the DPRK.

After the collapse of the

Hanoi summit of 2019, North

Korean Foreign Minister Ri

Under international law, states are meant to remain by

default in a state of peace and refrain from using force

to solve conicts. A state of war is meant to be a rare ex-

ception in limited circumstances.

During those limited

circumstances, the rules governing the use of deadly force

are more permissive than they are during peacetime.

But the Korean War is an oddity in that the parties

have yet to nally settle it, even though large-scale

active combat ended 67 years ago.

As such, a peace

agreement alone will not be sucient to resolve the

decades of tensions or all the areas of dispute, which

is a process that requires political will. But a peace

agreement would constitute a binding recognition that

wartime rights to use force have ended. is would not

only demonstrate a sincere will and commitment to a

peaceful resolution, but also create more will and po-

litical momentum for the conclusion of a lasting and

stable peace regime.

For an agreement to be binding under internation-

al law, the key element is the parties’ intent that it have

binding force.

For that agreement to qualify as a peace

agreement, the parties must pledge to abide by peacetime

rules governing the use of force or otherwise recognize

once and for all that wartime rights to use force have

ended.

e agreement must also articulate nality by

assuring one another that they consider the state of war

to be over and that future relations will be nonhostile.

Finally, the agreement must be fair from the perspec-

tive of all parties. Insisting that one side lower their guns

rst is not an oer of peace, but a demand of surrender.

Unless all sides feel that they were given their due and

that the agreement serves their interests, there will either

be no agreement or it will only be a matter of time until

conict arises again.

e chart below outlines the comparative strengths

and weaknesses of other mechanisms that fall short of a

binding peace agreement.

Unless the parties clearly intend a normalization

agreement to be a binding and nal settlement of the

war, it may not be sucient to resolve the conict in Ko-

rea, particularly if other hostile postures continue. But it

could be an important political step that builds momen-

tum for a nal and binding end of the war and a founda-

tion for a peace regime.

Parties to a Peace Agreement

ere is a long list of actors who engaged in the Korean

War, including the two Koreas, the United States, the

other UN Members that intervened with combat forc-

es, and China through the “Chinese People’s Volunteer

Army.” A peace agreement, however, need not include

all belligerents. In the Korean context, the ability of

a peace agreement to meaningfully improve security

DRAFT

Yong-ho stated that “security

guarantees” are “more im-

portant” to North Korea than

sanctions relief.

Since a nonaggression

agreement does not neces-

sarily terminate the state of

war – again, this occurs only

when the parties intend their

agreement to be a binding,

ﬁnal settlement – there are

limits to the certainty and se-

curity it can ensure between

the parties. There have been

armed clashes between the

two Koreas even after the

Basic Agreement.

However, like an end-of-war

declaration, a nonaggression

agreement can still help the

parties signal to one another

an intent to refrain from

hostilities and serve as an

important political step for

the parties on the path to a

ﬁnal peace settlement. The

Inter-Korean Military Agree-

ment of 2018, for instance,

renewed the inter-Korean

nonaggression pledge and

allowed for unprecedented

military conﬁdence-building

measures.

Unfortunately,

the cooperation birthed by

the Agreement gradually

broke down, as security talks

between the United States

and the North continued to

stall.

Normalization

Agreement

A normalization agreement

is generally understood as

an agreement to establish

or restore formal diplo-

matic relations and may

also include a reduction of

obstacles to trade. Almost

all UN Members that fought

North Korea in the 1950s

have by now established

formal diplomatic relations

with Pyongyang, though any

economic interaction that

followed is now blocked by

Security Council or unilateral

sanctions.

The United States and North

Korea made detailed prom-

ises to normalize relations,

but these never fully came

to fruition. In the Agreed

Framework of 1994, the two

countries agreed to “move

towards full normalization of

political and economic rela-

tions,” which was to include

the reduction of “barriers to

trade and investment,” the

opening of liaison oces,

and an eventual upgrade of

relations to the Ambassado-

rial level. In the Singapore

Declaration of June 12, 2018,

the United States and North

Korea also committed to

“establish new U.S.-DPRK

relations in accordance with

the desire of the peoples of

the two countries for peace

and prosperity.”

States have the discretionary

right to establish, maintain,

or end diplomatic ties with

one another, and are thus

free to set whatever political

conditions they wish for

normalization.

Whether

those conditions will be ac-

cepted by the other state is

another question. Conditions

relating to sovereign matters

of the other state can be

particularly sensitive.

In the

end, diplomatic ties can be

sustained only if both sides

are convinced that those ties

are in their interests.

Peace and normalization do

not necessarily go hand in

hand. For example, rela-

tions were not normalized

between the United States

and Vietnam for decades

after peace was concluded.

But normalization can serve

as a strong signal between

the parties that they intend

to build peaceful relations

and may demonstrate that

they tacitly recognize a state

of peace.

CHAPTER I: WHY THE ARMISTICE SHOULD BE REPLACED BY A PEACE AGREEMENT 13

depends rst and foremost on the participation of the

United States and the two Koreas. is section focuses

on the model of a single multilateral peace agreement

for ease of reference, but the same conclusions are ap-

plicable to a peace concluded through a series of bilat-

eral peace agreements.

e participation of other members of the United Na-

tions Command (“UNC”) intervention force or of China

is not legally necessary and would only have a limited

practical impact, as most relations in these cases have

already been normalized or pose a comparatively lower

security risk. e two Koreas and the United States may

nevertheless decide to include other parties if they believe

it is helpful to reach a sustainable peace agreement.

PARTICIPATION OF THE UNITED STATES

It is key that the United States participate in the peace

process.

e United States remains one of the parties

most susceptible to be engaged in use of force in Korea,

given its massive military presence, its regular participa-

tion in joint military exercises with the South, and the

fact that it would have operational control over South

Korean armed forces if combat resumed. It is especially

important for peace and security that the United States

unambiguously recognize that wartime rights to use

force have ended and acknowledge that the Korean War–

era UN Security Council resolutions cannot be cited as

authorization to use force today.

Calls for US participation in a peace agreement have

often been dodged by controversies over whether the

United States is in a state of war with North Korea in the

rst place. President Harry Truman famously described

the intervention in Korea as a mere “police action,” argu-

ing that intervention was justied under the UN Partic-

ipation Act and did not require a separate declaration of

war by Congress.

Some commentators have argued more

generally that armed intervention on the basis of a Secu-

rity Council authorization does not trigger a state of war,

insofar as the intervening States would be agents of the

UN. e United States has entertained that interpretation

in various ways, by leading operations through an organ

it called “United Nations Command” (UNC) under the

UN ag. It pointed to UNSC Resolution 84, which had

recommended that UN Members deciding to assist South

Korea make their forces “available to a unied command

under the United States of America” and had authorized

use of the UN ag.

Neither of these arguments disproves that the United

States is at war with North Korea. Under international

law, a state of war may arise explicitly through a decla-

ration of war or de facto through engagement in armed

conict,

and thus the absence of a US declaration of

war against North Korea is irrelevant.

e central aw

14 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

in the argument that the United States was a UN agent

rather than a belligerent is that the UN had, in practice, no

control over the UNC or its aliated troops. e United

States made all combat decisions and reported them to the

UN only after the fact.

e UNC went beyond the Se-

curity Council mandate of repelling the North Korean at-

tack of June 1950 by crossing the border northward in the

name of restoring peace and security, invading the North,

and triggering a Chinese counter-intervention. Adding in

the devastating human impact, it is clear that under any

denition, the Korean War was a war.

e practical purpose of a peace agreement is to

demonstrate that all parties are serious about taking the

risk of renewed hostilities o the table and laying the

foundation for a peace regime. e Security Council res-

olutions from 1950 were not intended as a blank check

to maintain an endless war in the name of peace. US

participation is not a question of legal obstacles but of

political will.

PARTICIPATION OF THE TWO KOREAS

e two Koreas are essential participants to the peace pro-

cess, but the unique circumstances of their relationship to

one another require special attention, particularly as they

do not consider their relationship as one “between States”

but as “a special interim relationship stemming from the

process towards reunication.”

Several commentators

have interpreted this to mean that “the principal obstacle

to a peace agreement has been the refusal of both Koreas

to recognize the legitimacy of the other.”

However, this is

a misconception not based in reality.

It is possible for belligerents who do not fully recog-

nize each other to conclude peace agreements,

and the

two Koreas have amply reached the required level of mu-

tual recognition. After all, they have concluded numerous

inter-Korean agreements and have established mecha-

nisms to recognize them as binding (see Annex I). e

two Koreas have also together explicitly called for a peace

agreement.

In any case, they are recognized as fully

sovereign separate states by the rest of the world, most

clearly evidenced by their respective accession to the UN

Charter in 1991.

OTHER POTENTIAL PARTICIPANTS

A peace agreement can end the state of war as between

the United States and North Korea, and as between the

two Koreas, without requiring the participation of other

combatant members of the UNC intervention force or of

China. Including the latter could improve the sustain-

ability of a peace agreement but will have to be weighed

against the potentially added complexity of increasing the

number of negotiation parties.

Some of the other combatant members of the UNC

intervention force may still qualify as belligerents to the

Korean War. ey each entered a state of war with North

Korea when they engaged in armed conict with it in

1950.

at said, they have long normalized diplomatic

relations with North Korea, except for France.

ese nor-

malizations are two decades old or more and indicate that

their role in the ongoing security crisis and state of war is

minimal to nonexistent and thus are not essential parties

to a peace agreement.

Determining whether China is a continued belliger-

ent and necessary party to the agreement is complicat-

ed by its claim during the Korean War that it was only

sending “volunteers” and by the fact that it normalized

relations with the United States and South Korea de-

cades ago. Insofar as the Chinese People’s Volunteers

ultimately answered to Beijing and also structured their

relations with the UNC based on the law of war, there

is a strong case for arguing that China was a belligerent

at least pre-normalization.

In any case, the Panmunjom Declaration explicitly cites

China as a possible participant to peace talks.

Indeed,

there is precedent for countries with normalized relations

to be party to the nal settlement of a war, as exemplied

by the Final Settlement of 1990 between the World War

II allies and the (then-)two Germanies, and by Russia’s

and Japan’s continued pursuit of a nal settlement re-

garding World War II.

China’s proximity to the Korean

Peninsula, its military power, and its continuing alliance

with North Korea are important factors to consider in

its relevance to a peace agreement that is key to regional

peace and security.

From top: U.S.

armed forces test

a Minuteman III

intercontinental

ballistic missile

on May 3, 2017,

at Vandenberg

Air Force Base,

California.

Credit: U.S. Air

Force photo/2nd

Lt. William

Collette; North

Korean armed

forces test a

Hwasong-14

intercontinental

ballistic missile

on July 20, 2017

in Chagang

province, North

Korea. Credit:

KCNA

DRAFT

e prospect of a peace agreement with North Korea raises critical questions

about its implications for international eorts to denuclearize the country, which

is estimated to possess enough ssile material to build between 30 and 60 nuclear

weapons.

is chapter addresses some of the most common questions regarding

the legal, political, and practical considerations of a peace agreement in relation

to the nuclear conict in three parts: First, it provides a brief contextual history

of the present-day nuclear stando and its development throughout the Korean

War; second, it addresses the legal distinctiveness of the issue of peace from the

dispute on nuclear weapons to demonstrate how a peace agreement would not

legally imply recognition of North Korea as a “nuclear weapons state”; and, nally,

it concludes that ending the war with a peace agreement may create the conditions

for more eective engagement on denuclearization by curbing the security risks

fueling Pyongyang’s pursuit of nuclear weapons.

e Implications of a

Peace Agreement for

Denuclearization

CHAPTER II

CHAPTER II: THE IMPLICATIONS OF A PEACE AGREEMENT FOR DENUCLEARIZATION 15

Background: The Nuclear

Dimension of the Korean War

e specter of nuclear war has loomed over the Korean

Peninsula since the outbreak of the Korean War. From as

early as July 1950, high-ranking US ocials, including

Central Intelligence Agency Director Roscoe Hillenkoet-

ter and General Douglas MacArthur, have pondered and

recommended the use of atomic weapons in Korea.

After

China’s intervention on behalf of North Korea in No-

vember 1950, President Truman publicly conrmed that

“there has always been active consideration” of their use.

Nuclear weapons gured seriously in US military planning

throughout the Korean War, as evidenced by Truman’s de-

ployment of nuclear-congured aircraft to the region and

the authority granted to the UNC Commander-in-Chief

to use nuclear weapons “in retaliation for a major air attack

originating from beyond the Korean peninsula.”

Despite the signing of the Armistice in 1953, the US

nuclear presence in the region escalated as the Cold War

advanced. In a repudiation of Paragraph 13(d) of the

Armistice, the United States introduced tactical nuclear

weapons to South Korea in January 1958.

For the next

three decades, the United States deployed hundreds more

nuclear weapons to the South, maintaining as many as 950

nuclear warheads at one point.

100

NORTH KOREA’S NUCLEAR

DEVELOPMENT

North Korea’s nuclear development began in the late

1950s through its pursuit of nuclear energy with the

assistance of the Soviet Union.

101

is was common

among developing states at the time, including South

Korea, which received civil nuclear energy assistance

through the US “Atoms for Peace” campaign. By the

end of the Cold War, both Koreas had developed their

own civilian nuclear programs, and both eventually

joined the Nuclear Non-proliferation Treaty (NPT).

Created in 1968, the NPT is a multilateral treaty that

16 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

prohibits non–nuclear armed states from acquiring

nuclear weapons. In exchange, nuclear-armed states

pledge not to attack non–nuclear armed states, to

provide civilian nuclear assistance, and to ultimately

achieve global nuclear disarmament.

Before joining the NPT in 1975, South Korea had

pursued a clandestine nuclear weapons program under

President Park Chung-hee.

102

While the United States

successfully prevented Park’s eorts to nuclearize, the US

nuclear umbrella continues to extend over South Korea

as part of the US-ROK alliance.

North Korea began to pursue sensitive nuclear tech-

nologies during the 1980s with the construction of an

experimental 5-megawatt reactor, which, in addition to

generating electrical power, would have been capable of

producing weapons-grade plutonium. In 1985, North

Korea joined the NPT as part of a condition to secure

Soviet assistance on the construction of a light-water

reactor, ostensibly to meet the country’s energy demands

and “to realize international cooperation in the nuclear

power industry sector, remove nuclear threats toward us,

and make the Korean peninsula a non-nuclear zone.”

103

Concluding a peace agreement would

not undermine the legal positions

of the parties in the nuclear dispute,

and peace may be politically more

conducive to international peace and

security than delaying or denying it in

an unlikely bid to disarm one side.

However, in what may have reected the changing

regional security dynamics following the collapse of the

Soviet Union in 1991, North Korea delayed concluding

a key safeguards agreement as part of its commitment

to the NPT. In North Korea’s account, the delay was in

protest of US violations of its international obligations as

a nuclear-armed state and the continuation of the Team

Spirit joint US–ROK military exercise. In response, the

United States declared that it “will not pose a nuclear

threat on North Korea.”

104

South Korea followed with a

commitment not to produce nuclear weapons and tem-

porarily suspended the Team Spirit exercise.

105

On Janu-

ary 20, 1992, the two Koreas adopted the South-North

Joint Declaration on the Denuclearization of the Korean

Peninsula.

106

Shortly after, North Korea held dialogue

with the United States and nally implemented its safe-

guard agreement with the International Atomic Energy

Agency (IAEA).

107

ese commitments were short-lived amid grow-

ing international concerns that North Korea may have

been developing an illicit nuclear weapons program. In

March 1993, North Korea announced its intention to

withdraw from the NPT over objections to the US-led

push for IAEA special inspections of suspected mil-

itary facilities and the resumption of the Team Spirit

joint military exercise, which North Korea regarded as

attempts to spy on, disarm, and infringe upon the sover-

eignty of the state.

108

In a major breakthrough spurred by a meeting be-

tween former US President Jimmy Carter and North

Korean leader Kim Il Sung, a series of bilateral talks cul-

minated with the US–North Korea Agreed Framework

on October 21, 1994. North Korea agreed to dismantle

its graphite-moderated reactors in exchange for prolif-

eration-resistant light-water reactors and alternative en-

ergy assistance from the United States. Importantly, the

deal aspired to go beyond a nonproliferation agreement

as both sides also pledged to normalize political and

economic relations, albeit conditioned on North Korea’s

compliance with the IAEA.

109

e Agreed Framework

lasted for nearly a decade, during which time North Ko-

rea stopped producing plutonium and allowed inspec-

tions of key facilities, preventing the development of as

many as 100 nuclear weapons, in the analysis of several

experts.

110

However, the Agreed Framework did not survive the

political changeover to a new US administration under

President George W. Bush, whose approach toward

North Korea reected a hardline shift from the Clinton

administration’s strategy of engagement. President Bush,

who condemned North Korea as part of an “axis of evil”

in his 2002 State of the Union address,

111

suspended

negotiations for the next two years.

112

Leaked versions

of the classied Nuclear Posture Review in 2002 re-

vealed that the Bush administration had listed North

Korea as one of seven countries that could be targets

of a US nuclear strike.

113

It further came to light that

senior ocials, including Vice President Dick Cheney

and Undersecretary of State for Arms Control and In-

ternational Security John Bolton advocated for a policy

of regime change.

114

Under mounting distrust, North

Korea ultimately withdrew from the NPT in 2003, pre-

cipitating the rst of many nuclear crises between the

two countries.

North Korea’s resolve to acquire what it presents as “a

nuclear deterrent capable of containing the US nuclear

threat and guaranteeing [the country’s] long-term secu-

rity” is symptomatic of the asymmetry of power that has

long dened US–North Korea relations in the context

of the ongoing Korean War. North Korea’s early criti-

cisms of the NPT also reected a core tension among

non–nuclear armed states that have challenged the trea-

ty’s enshrinement of a global nuclear regime in its privi-

leging of so-called nuclear powers on the arbitrary basis

of having tested nuclear weapons before 1970.

115

While

the NPT serves as an important arms control mecha-

DRAFT

nism to prevent the global spread of nuclear weapons, it

has also been used to assert the legitimacy of the nuclear

monopoly of a small number of states that have formal-

ized the use of nuclear weapons in their national securi-

ty doctrines and continue to modernize their arsenals.

e world today remains locked in a strategic imbal-

ance, as nuclear-armed states that are party to the NPT

have yet to disarm, certain non–nuclear armed states

place their security under the nuclear umbrella of nucle-

ar-armed states, and certain nuclear-armed states never

joined the NPT at all. While almost all non–nuclear

armed states have remained party to the NPT, many

have sought to correct its double standard with a new

instrument, the Treaty on the Prohibition of Nuclear

Weapons (TPNW). is treaty bans outright and with-

out exception the possession of nuclear weapons and the

practice of relying on nuclear umbrellas.

From the Clinton administration onward, the Unit-

ed States has unevenly pursued the denuclearization

of North Korea through a series of diplomatic and

pressure-based strategies. e UN Security Council,

under US leadership and with veto-wielding members

that happen to be the NPT’s nuclear-weapon states,

has taken a sanctions-based approach to discourage,

obstruct, and punish specic countries from acquiring

nuclear weapons: today North Korea and Iran, while

other known nuclear-armed states outside of the NPT

– Israel, India, and Pakistan – have not been subject to

those sanctions. Sanctions against North Korea were

originally designed to be “smart sanctions,” blocking

only military or luxury goods transfers, but evolved over

time into quasi-comprehensive sanctions with signi-

cant, “unintended” humanitarian consequences on the

population.

116

e eorts of both US Democratic and Republican

administrations have, over the course of three decades,

not only failed to achieve their intended outcome but

also prolonged the irresolution of the Korean War. US

policy has overwhelmingly conditioned dialogue with

North Korea, as well as the process of peacemaking, on

the prospect of North Korean disarmament. Washing-

ton’s conventionally preferred sequencing, which may be

summarized as “denuclearization rst, peace later,” nar-

rows the political space for an end to the conict – the

Korean War – at the root of the crisis.

e reverse sequencing of “peace rst, denucleariza-

tion later” oers a viable pathway to meet the security

interests of all parties. e following section addresses

the legal and practical applications of such an approach.

Application: Peace as

Nuclear De-escalation

e issue of the Korean War pregures the now dead-

locked dispute between North Korea and the UN Security

Council regarding the legality of the nuclear weapons pro-

gram. Contrary to the concerns of many commentators,

concluding a peace agreement would not undermine the

CHAPTER II: THE IMPLICATIONS OF A PEACE AGREEMENT FOR DENUCLEARIZATION 17

South and North

Korean army

ocers certify to

each other the

destruction of

guard posts in

the Demilita-

rized Zone in

Cheolwon, Gang-

won province,

implementing a

condence-build-

ing measure of

the Inter-Ko-

rean Military

Agreement of

September 19,

2018. December

12, 2018. Credit:

ROK National

Defense Ministry

/ 국방부

18 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

Former US

President Jimmy

Carter meets with

North Korean

leader Kim Il

Sung to de-es-

calate tensions,

paving the way

for the Clinton

administration

to conclude the

Agreed Frame-

work four months

later. June 17,

1994. Credit:

Korean Central

News Agency/Ko-

rea News Service

via AP, File

legal positions of the parties in the nuclear dispute, and

peace may be politically more conducive to international

peace and security than delaying or denying it in an un-

likely bid to disarm one side.

THE SEPARATE LEGAL REGIMES

GOVERNING PEACE AND

DENUCLEARIZATION

Many commentators fear that a peace agreement would

amount to a tacit recognition of North Korea as a nucle-

ar weapons state, but this is based on a misunderstanding

of a term of art from the NPT. e NPT does designate

certain parties as “nuclear weapons states,” but these are

subject to a legally binding obligation to eliminate their

nuclear weapons through the Treaty’s article VI require-

ment to negotiate in good faith “eective measures relat-

ing to cessation of the nuclear arms race at an early date

and to nuclear disarmament.”

117

e NPT nevertheless

denes “nuclear-weapons state” for its purposes as “one

which has manufactured and exploded a nuclear weap-

on or other nuclear explosive device prior to 1 January

1967.” North Korea conducted its rst nuclear weapons

test in 2006 and accordingly cannot claim the privileg-

es of a “nuclear-weapons state” under the NPT. is rule

cannot be changed by a peace agreement. A reform of

this provision would instead require consent from all

NPT parties.

Moreover, arguments for the illegality of the North

Korean nuclear weapons program do not depend on the

existence of a state of war. One strand of reasoning ar-

gues that North Korea either did not lawfully withdraw

from the NPT or continues to be bound by a customary

version of the NPT. is would mean that its nuclear

program is in continuous violation of rules for non–nu-

clear weapons states. Whether or not this reasoning

stands, the applicability of the NPT is not in any way

subject to the existence of a state of war or peace.

Another strand of reasoning holds that the North Ko-

rean nuclear weapons program violates Security Council

resolutions: hence the UN Charter rules that require UN

Members to respect Council decisions.

118

is argument

may at rst sight appear sensitive to the conclusion of a

peace agreement as the Council bases the relevant reso-

lutions on the designation of the North Korean nuclear

weapons program as a “threat to international peace and

security.” is may lead to questions as to whether the

program still constitutes such a threat after the conclu-

sion of a peace agreement. at said, the UN Charter

leaves it to the discretion of the Security Council to de-

termine whether there is a threat to the peace. ere are

numerous examples of the Council nding such a threat

DRAFT

CHAPTER II: THE IMPLICATIONS OF A PEACE AGREEMENT FOR DENUCLEARIZATION 19

even in peacetime, as in the case of the resolutions sanc-

tioning the Iranian nuclear program. In this sense, the

resolutions sanctioning the North Korean program do

not depend on the existence of a state of war.

THE POLITICAL RELATIONSHIP

BETWEEN PEACE AND

DENUCLEARIZATION

While peace and the nuclear dispute are legally distinct,

they are politically linked. North Korea has repeated-

ly stated that it developed nuclear weapons to ensure its

security amid the unresolved state of war.

119

Meanwhile,

the United States has consistently refused North Kore-

an peace oers on the grounds that they did not involve

denuclearization.

120

e relationship of peace and the

nuclear dispute is in obvious tension, but they may be

reconciled by a peace agreement that ends the state of

war and enables the basic conditions for a reduction of

military tensions.

Arguments to the contrary typically claim that con-

cluding peace without prior denuclearization would not

fully resorb insecurity as it would maintain an imbal-

ance between a nuclear-armed North and a non–nucle-

ar armed South that relies on the US nuclear umbrel-

la. Some analysts posit that South Korea, and possibly

Japan, would seek to nuclearize out of concern for US

commitments to the security of its ally. In the most ex-

treme scenario of North Korean nuclear blackmail, the

argument follows that the United States may not risk a

nuclear strike on American cities to protect South Korea.

ese concerns are, however, a present reality and reect

the contradictions inherent in nuclear deterrence theory.

As evidenced in the case of Korea, the notion that nucle-

ar weapons provide security is highly contested.

121

In the wider context of global nonproliferation, it is

commonly argued that concluding peace would under-

cut eorts to convince North Korea to denuclearize. A

common refrain is that it would constitute a “reward for

bad behavior,” undermining the nonproliferation regime

and the authority of the Security Council. At the same

time, it is evident that denuclearization eorts have con-

tinuously failed for more than a quarter century to stop

the development of the North Korean nuclear program.

e impact of sanctions on the civilian population may

also have a counterproductive, “rally-round-the-ag”

eect, as Pyongyang’s domestic messaging emphasizes

US responsibility for the economic situation.

122

is has

resulted in an unresolved and increasingly dangerous cri-

sis, an outcome that itself undermines the credibility of

the nonproliferation regime and the Security Council in

ensuring international peace and security.

INCLUSION OF NUCLEAR ELEMENTS

IN A PEACE AGREEMENT

As was demonstrated previously, a peace agreement

would not prejudice the position of the parties regard-

ing the dispute on the North Korean nuclear program. A

peace agreement could also improve international peace

and security by including disarmament provisions, in

addition to raising the bar for the use of force and estab-

lishing the basic conditions for diplomatic relations.

123

However, it bears emphasizing that the nuclear crisis

is also predicated on the US nuclear posture in the re-

gion. At a minimum, addressing the nuclear crisis would

necessitate security commitments on the part of the

United States or reorienting US policy on North Korea

to an arms control approach.

124

is is particularly sa-

lient in light of measures by the Trump administration

to modernize US nuclear forces, which is a continua-

From top: North Korean Leader Kim Jong Il shakes hands with U.S. Secretary of State

Madeleine Albright at the Pae Kha Hawon Guest House in Pyongyang Monday, October

23, 2000. Albright, the highest level U.S. ocial to visit North Korea in 50 years, met with

the North Korean leader in an eort to ease tensions between the two nations. Credit: AP

Photo/David Guttenfelder/POOL; President Bill Clinton meets with Special Envoy Vice

Marshal Cho Myong-nok, First Vice Chairman of the National Defense Commission of

North Korea, in the Oval Oce, October 10, 2000. Credit: David Scull/e White House

20 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

tion of a $1 trillion modernization program initiated by

President Barack Obama.

125

If a peace agreement were to

include an arms control agreement or commitments to

denuclearize, it should address mutual security concerns

and enact reciprocal actions to those ends. Negotiations

should also be mindful of the legally and ethically prob-

lematic impact of the current level of sanctions on the

civilian North Korean population, which appears dicult

to reconcile even with the humanitarian principles pro-

tecting noncombatants in wartime.

Practically speaking, the United States, which has the

second-largest nuclear arsenal in the world, is in a dif-

cult position to compel North Korea to denuclearize.

North Korea has pointed to the concept of the “denucle-

arization of the Korean Peninsula,” meaning that it would

be ready to disarm if the United States also abandons the

means of conducting nuclear strikes on the Peninsula.

Since the US nuclear arsenal has a global reach, it is con-

sidered a veiled way of saying that North Korea will give

up its nuclear weapons when the United States does the

same. Current US nuclear doctrine makes such a prospect

untenable and underscores the challenges that proponents

of arms control and global nuclear disarmament face well

beyond the context of Korea.

In order to achieve consensus at least on the basic

benets of a peace agreement, particularly the reduction

of the risk of nuclear war, it would hence be advisable to

forgo nuclear demands for now or only to include some

that can be compensated with other positive incentives.

One option that may be compatible with the national se-

curity calculus of all sides is to agree on an arms control

mechanism to veriably freeze the development of the

North Korean nuclear program with corresponding mea-

sures. is can be achieved either in provisions includ-

ed in the peace agreement or in a parallel or subsequent

arms control agreement.

It must be noted that the option of an arms control

agreement compensated by partial sanctions relief will

be constrained by domestic US legal provisions that

set conditions on relief of US unilateral sanctions. e

sanctions imposed under the North Korea Sanctions

and Policy Enhancement Act of 2016, for instance,

can only be lifted under conditions that North Ko-

rea appears to consider an infringement upon its

sovereignty, such as signicant progress toward the

complete dismantlement of its weapons of mass de-

struction programs and wide-ranging changes to its

political system. ese requirements do not bind Pres-

idential authority to reform Security Council sanc-

tions, however.

The arms control option should not obscure the

fact that both the United States and North Korea

have made commitments for nuclear disarmament.

126

Nuclear weapons, given their immense destructive

power, threaten to have catastrophic humanitarian

consequences and pose grave implications for hu-

man survival. The fairest and most desirable course

of action, not just for the parties to the Korean War,

but for humanity as a whole, is for all nuclear-armed

states to join the Treaty on the Prohibition of Nuclear

Weapons.

127

Ultimately, a peace agreement that is concluded sep-

arate from a nuclear agreement would not imperil the

prospects of North Korea’s or the United States’ future

disarmament. Pressure-based denuclearization eorts

have been pursued at the cost of a growing risk of cat-

astrophic nuclear war, and withholding a resolution to

the Korean War has prolonged and exacerbated the se-

curity crisis. A peace agreement that ends the wartime

status quo and enables the normalization of US–North

Korean relations may improve, if not establish, the con-

ditions for negotiating denuclearization.

DRAFT

e Implications of a Peace

Agreement for Human Rights

is chapter demonstrates that generally, and in the case

of the Korean War specically, peace and human rights

are not in conict with one another. On the contrary,

they are mutually reinforcing. While a peace agreement

to resolve the Korean War is not a panacea, it would im-

prove people’s lives, sap the militarism that undergirds

abuses, and create the conditions to engage more eec-

tively on human rights. In fact, the UN Special Rap-

porteur on the situation of human rights in the DPRK,

Tomás Ojea Quintana, acknowledged this linkage: “A

declaration on peace and development in the Korean

Peninsula, and a swift resolution of the armistice status,

would create the atmosphere and space needed for fur-

ther discussions on denuclearization, less isolation, more

access, and respect for human rights.”

129

PEACE AND HUMAN RIGHTS

GO HAND IN HAND

Aspirations of peace are built into the very fabric of the

international human rights framework. e Universal

Declaration of Human Rights states that the “recogni-

tion of the inherent dignity and of the equal and inalien-

able rights of all members of the human family is the

foundation of freedom, justice and peace in the world.”

130

e UN Charter sets forward a vision “to develop friend-

ly relations among nations based on respect for the prin-

ciple of equal rights and self-determination of peoples,

and to take other appropriate measures to strengthen

universal peace.”

131

e very foundations of the interna-

tional human rights system were rooted in the devastat-

ing experience of World War II.

132

Upon this foundation, the diverse nations of the

world have built a shared infrastructure for identifying

the rights of every human, agreeing to protect those

rights within their territories, and endeavoring to hold

one another accountable. Of course, diering perspec-

tives within this framework remain.

133

While certain

states tend to emphasize the “rst generation” rights

represented in the International Covenant on Civil and

Political Rights, such as freedoms of speech and polit-

ical participation, other states tend to focus more on

“second generation” rights ensured by the International

Covenant on Economic, Social, and Cultural Rights,

such as healthcare and housing.

134

Post-decolonization, the Global South has led the

way in urging recognition of a “third generation” of hu-

man rights that go beyond the traditional framework

in which governments owe duties to the individuals

within their own territory.

135

is grouping of rights in-

stead views rights as collective “people’s rights” in which

many states owe duties to many peoples as a means of

enabling them to enjoy their rst- and second-genera-

tion rights.

136

Many have advocated for the recognition

of a right to peace within this category. Consequently,

in 1984, the UN General Assembly (UNGA) adopted a

resolution declaring that life without war is “the primary

international prerequisite for the material well-being,

development and progress of countries, and for the full

implementation of the rights and fundamental human

is chapter examines some of the core concerns among human rights advocates

regarding a potential peace agreement with North Korea. is includes such

commonly raised questions as whether a peace agreement would “legitimize”

North Korea and its human rights record or whether such an agreement should be

conditioned on internal human rights reforms.

128

CHAPTER III

CHAPTER III: THE IMPLICATIONS OF A PEACE AGREEMENT FOR HUMAN RIGHTS 21

22 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

freedoms proclaimed by the United Nations.”

137

e legal

status of this and other “people’s rights” remain disput-

ed in the international community.

138

In 2016, UNGA

recognized an individual dimension to the right to peace,

stating that “everyone has the right to enjoy peace such

that all human rights are promoted and protected and

development is fully realized.

139

Human rights and peace are closely intertwined.

140

least one study indicates that women-led civil society or-

ganizations are more likely to make this connection and

advocate for both peace and human rights jointly in a

holistic strategy.

141

In the context of North Korea, these

interconnections warrant greater examination.

MILITARISM AND ENDLESS WAR

DIRECTLY THREATEN HUMAN RIGHTS

e unresolved Korean War has had a negative human

rights impact on all parties, including governments’ di-

version of resources toward militarism and away from

people’s welfare, and civil liberties restrictions in the name

of security.

e North Korean government ranks rst in the world

in military spending as a percentage of its GDP,

142

even as

chronic hunger and poverty have devastated the country,

and exerts an unparalleled amount of state control in the

name of security.

143

Although North Korea has ratied

six major international human rights treaties,

144

engages

with international human rights bodies,

145

and includes

extensive human rights provisions in its Constitution,

146

the country’s continued human rights abuses are widely

documented and subject to intense international scruti-

ny.

147

Areas of particular international concern include the

freedoms of thought, expression, religion, residence, and

movement, the rights to food and to life, as well as ques-

tions of discrimination, arbitrary detention, torture, execu-

tions, prison camps, and enforced disappearances.

148

In response, North Korea has denounced what it calls

a US-led “smear campaign” and “fabrications.”

149

It point-

ed to what it considers the “hostile policy” of the United

States as a root cause of its human rights challenges.

150

its second Universal Periodic Review, for example, North

Korea identied US-led “sanctions, pressures, and military

threat” as “the most serious challenges and obstacles to

its independent and peaceful development as well as the

enjoyment of human rights by Korean people.”

151

North

Korea has also insisted that “the safeguard of national sov-

ereignty is the precondition and indispensable necessity

for the protection and promotion of human rights” and

cited, for instance, restrictions on freedom of association

and freedom of religion as necessary to safeguard this sov-

ereignty against foreign subversion eorts.

152

While North

Korea’s stated justications for its behaviors may remain

unconvincing to human rights advocates,

153

they are criti-

cal to examine in order to better inform future policy.

e human rights consequences of the continued state

of war are also evident within South Korea. Of particu-

lar concern is the country’s National Security Act, a relic

of the Korean War that criminalizes positive statements

about North Korea and has been used by the South Ko-

rean government to curtail freedoms of expression and

dissent.

154

e United States has entered into, and continues to

engage in, other conicts in the decades since active hos-

tilities ceased on the Korean Peninsula. us, remnants

of the “Forgotten War” are less visible in American life.

But the human rights impact of continuous US warfare is

undeniable, and the Korean War helped usher in the era

A mother, living

in the south of

Korea, meets her

son, living in the

north, at a group

reunion for sepa-

rated families on

August 20, 2018,

at the Kumgang-

san Hotel in

North Korea.

Credit: 남북정상

회담준비위원회 /

2018 Inter-Ko-

rean Summit

Preparation

Committee

DRAFT

of expanded US militarism that continues today. Accord-

ing to University of Chicago historian Bruce Cumings,

the Korean War “was the occasion for transforming the

United States into a very dierent country than it had

ever been before: one with hundreds of permanent mili-

tary bases abroad, a large standing army and a permanent

national security state at home.”

155

In just three years, the

Korean War tripled US military spending and inaugurat-

ed the US military-industrial complex.

156

e results are a

mammoth military-rst economy

157

alongside a gutted so-

cial safety net that is ill-equipped to provide basic support

to American people.

158

As the endless war paradigm of the

Korean War has been applied in post-9/11 contexts, the

United States has repeatedly drawn international condem-

nation for its human rights abuses conducted in the name

of national security.

159

A peace agreement would help remove reasons of na-

tional security and military necessity that the warring

parties frequently invoke to justify curtailing liberties,

overspending on militarism at the expense of their people,

and otherwise failing to respect or protect human rights.

A peace agreement would also help protect lives. A formal

end to the war will eliminate the ability of any parties to

claim the permissive wartime use of force standards under

the law of armed conict. Instead, the more restrictive

peacetime protections would indisputably apply.

160

e

risk of intentional or accidental escalation of the perpetual

state of war into resumed active hostilities that could turn

nuclear would be an unconscionable human rights disaster.

PEACE CAN SUCCEED

WHERE PRESSURE HAS FAILED

e modern international order is premised on respect

for principles of sovereignty and nonintervention. ere

is a wide spectrum of ways that governments attempt to

inuence one another’s behaviors, stretching from the

clearly lawful (retorsions such as setting conditions on

diplomatic relations) to the plainly unlawful (armed at-

tacks that defy the law of armed conict). In the murky

area between those two ends of the spectrum, states are

meant to be guided by the principle of nonintervention in

one another’s internal aairs, one of the oldest and most

fundamental principles of international law.

161

is is evident in the international human rights in-

frastructure, as binding human rights standards meant to

govern internal aairs are developed only with states’ con-

sent through treaties or custom.

162

Even as governments

work to hold one another accountable in upholding these

standards, human rights are ultimately duties owed by a

government to its own people.

163

e process is more complex in practice. e idea of

strict national sovereignty above all has been eroded,

often in the name of human rights. Increasingly, many

within the international community have urged recogni-

tion of a “responsibility to protect,” meaning that states

have an obligation to protect not just the rights of their

own people but also citizens of other countries, if their

own governments cannot or will not protect their popu-

lations against egregious violations of their human rights.

Such interventions, many argue, may include the use of

force.

164

e lawfulness of “responsibility to protect” as a

justication for interventions remains hotly disputed, as

does its viability as a policy choice.

165

In the case at hand, the United States has long led an

international pressure campaign with participation from

many other nations and international bodies in the name

of improving North Korean human rights. In addition to

maintaining the Korean War in perpetuity, the pressure

campaign has included crippling sanctions

166

and dip-

lomatic isolation.

167

Some advocate for the UN Securi-

ty Council to authorize further intervention under the

auspices of a “responsibility to protect,”

168

with others pro-

moting forcible regime change.

169

But after decades of war, sanctions, and isolation,

North Korea has adapted and become even more resil-

ient against pressure.

170

e country has become autarkic

enough to resist external forces and clearly has the will to

bear the consequences. North Korean ideology emphasiz-

es national sovereignty and self-reliance above all else, an

approach designed to withstand what it considers “hostile

policy.”

171

Continuing or expanding aggressive pressure

tactics will likely only validate that mindset.

172

Additionally, the ongoing Korean War and resulting

diplomatic isolation severely limit the impacted par-

ties’ ability to verify information, communicate directly,

provide social and economic opportunities, and promote

stated values with one another. North Korea’s particularly

extreme isolation has meant that human rights documen-

tation by other countries frequently relies on testimony

from defectors that is unable to be corroborated.

173

e

status quo also narrows opportunities for the parties to

build credibility and trust between their governments

and peoples that could bolster momentum and leverage

toward greater human rights protections. Meaningful hu-

man rights improvements do not happen overnight and

require years of follow-up work that a peace agreement

and increased engagement would facilitate.

174

e US-led international pressure campaign against

North Korea has been at best ineective and at worst

counterproductive. ere is little evidence that extreme

pressure can succeed in improving human rights in North

Korea or elsewhere. e United States’ decades of isola-

tion of Cuba, for example, has produced no tangible hu-

man rights results. Conversely, minor temporary openings

in relations between the two countries not only provided

more opportunities for the governments to directly en-

gage one another on human rights, but also widened op-

portunities for Cubans to travel, obtain economic support,

stay in touch with their families abroad, and participate in

people-to-people exchanges that expose Americans and

Cubans alike to diverse perspectives.

175

A similar lesson

can be learned from US engagement with China. e

US decision to normalize relations with China over the

period of 1972 to 1979 proved far more liberating and

empowering for the lives of Chinese people than the hos-

CHAPTER III: THE IMPLICATIONS OF A PEACE AGREEMENT FOR HUMAN RIGHTS 23

24 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

tility it maintained for the 30 years prior.

More recently, in the case of Afghanistan, many who

advocate for a continued US military presence in the

country frequently cite human rights concerns as ratio-

nale. But peacebuilders on the ground in Afghanistan

have long insisted, and experts are increasingly accepting,

that pressure from external actors cannot secure rights

guarantees and that the continued state of war only ex-

acerbates the suering. Only a negotiated political settle-

ment of peace with the meaningful participation of those

impacted, particularly women, can facilitate sustainable

human rights gains.

176

While the international human rights system is pred-

icated on duties and enforcement mechanisms between

states to ensure that rights are protected domestically, it

is a system that depends on dialogue, cooperation, and

diplomacy.

177

From a principled and practical perspective,

it is ill-advised for any country to expect to dictate or en-

sure specic human rights outcomes in another country

through coercion or force.

178

Neither should govern-

ments or civil society seek to facilitate regime change in

any country under the auspices of improving its human

rights situation – not only because such endeavors defy

the international legal order, but also because as a policy

matter they have proven disastrous.

Being in a state of peace with another country is not a

gift to or stamp of approval upon the other country, but

a mutually agreeable arrangement that is meant to be the

norm and helps take the risk of catastrophic conict o

the table. Some fear that North Korea gains credibility

on the international stage when it receives attention or

concessions from the United States, and that continued

isolation alone will persuade North Korea to change its

practices.

179

But the United States is in a state of peace

and frequently enters into partnerships and alliances with

many countries with poor human rights records, such as

Saudi Arabia.

180

Few would argue that the United States

should be in the business of invading and going to war

with every government that fails in its human rights obli-

gations, lest it become at risk of constant invasion itself.

As unsatisfying as it may be for all with the noble goal

of creating a world in which human rights for all people

are fully realized, the most practicable steps that govern-

ments can take toward these ends is to critically assess

their own foreign policy and commit to actions that are

most likely to help and not harm the conditions for im-

proved human rights protections at home and abroad.

A PEACE AGREEMENT CAN BE

A FOUNDATION UPON WHICH

TO BUILD GREATER HUMAN

RIGHTS ENGAGEMENT

A remaining issue in the interplay between peace and

human rights on the Korean Peninsula is the matter of

sequencing. Some in civil society encourage the parties to

center human rights discussions in any peace discussions,

in order not to capitulate, stay silent, or give up leverage

that could be used to seek human rights concessions.

181

Others fear that inclusion of human rights provisions may

impede peace talks and indenitely prolong the conict.

182

It is a frequent, and complex, point of debate in many con-

texts, particularly in the resolution phase of international

conicts.

183

e United States can hardly be accused of remaining

silent on the issue of human rights in North Korea thus far.

e US State Department has repeatedly made statements

to the eect of requiring human rights reform in North

Korea before there can be normalization of diplomatic

ties.

184

Congress has also posited that North Korea must

enact human rights improvements as a condition for relief

from sanctions.

185

As previously discussed, these eorts

have been met with little to no success, particularly consid-

ering that the United States has been pressuring the North

on human rights practically since the country’s founding.

e continued state of the Korean War adds an extra

layer of complication, as conditioning peace on inter-

nal human rights reforms within North Korea could be

interpreted as an implied threat by the United States and

allied forces to secure a change in North Korea’s internal

workings by military means.

186

A comparative analysis of

other peace agreements shows that those that include hu-

man rights provisions are typically ones in which one side

was clearly beaten and hence saw its bargaining power in

tatters. Or they are agreements resolving internal, nonin-

ternational armed conicts.

187

e Korean context is quite

dierent, as the use of force was originally approved by the

Security Council with the narrow purpose of repelling the

North Korean attack of June 1950,

188

and active hostilities

to that end have long concluded.

e hard reality is that the conict is likely to remain

intractable so long as either party makes unilateral de-

mands of the other before there can be an end to the war.

North Korea is unlikely to agree to a peace agreement

formally ending the Korean War if the United States or

South Korea demand specic human rights reform in

North Korea rst. As previously discussed, a state of peace

would be much more likely to create the conditions for

better human rights engagement and heal the wounds of

war that continue to cause suering.

It must be reiterated that a peace agreement is not a

panacea. It is impossible to guarantee that a peace agree-

ment and more normalized engagement would deni-

tively improve the human rights situation of those who

have been impacted by the war. But a state of peace has

consistently proven to be far more conducive to promoting

human rights and improving people’s lives than adversarial

pressure, which tends to exacerbate the economic and so-

cial impacts on people living under war. e United States

has an opportunity to advance a peace agreement that

would signicantly lower the risk of catastrophic conict

on the Korean Peninsula, reduce barriers to North Korea’s

economic development,

189

and even facilitate the possibility

of post-war reconciliation and accountability

190

– condi-

tions that would armatively improve people’s lives in

ways that the human rights framework is meant to achieve.

DRAFT

e Implications of a

Peace Agreement for

US–ROK Relations

In 1953, the United States and South Korea concluded a military alliance in

the name of deterring “Communist aggression,” in a context of war with North

Korea and China and of the Cold War with the Soviet Union.

191

Today, t he

Soviet Union is no more. Washington and Seoul have both normalized relations

with Beijing, and the US–ROK relationship has expanded far beyond military

cooperation, in both economic and human terms. But as military allies, both still

spend billions of dollars each year on joint preparedness for war, ready to “ght

tonight” in case tensions with North Korea escalate into open conict.

Ending the Korean War raises questions about the future

of the US–ROK alliance. It is a deep and complex secu-

rity relationship, informed by at times polarizing history.

Polls showing widespread support for the alliance coexist

with recurrent public protests in South Korea on various

aspects of US troop presence.

192

is chapter examines

the political and legal implications of a peace agreement

on US–South Korean relations with respect to the alli-

ance, US troop presence, operational control (OPCON)

over South Korean armed forces, as well as the Armistice

and the United Nations Command (UNC). Ultimately,

it nds that a peace agreement would not imply the end

of the alliance or the withdrawal of US troops, unless

otherwise specied, but would help to recalibrate the re-

lationship in ways that better t contemporary circum-

stances and interests.

THE WARTIME ORIGINS

OF THE ALLIANCE

e US–ROK alliance is often said to be “forged in

blood” insofar as it grew out of the Korean War.

193

1953, after three years of ghting and millions of dead,

the United States decided to move ahead with the con-

clusion of the Armistice. South Korean President Syn-

gman Rhee opposed the planned agreement, insisting

that an end result short of unication by force or of a

Chinese withdrawal would maintain an existential threat

to South Korean national security.

194

He asked for a mil-

itary alliance

195

and President Eisenhower accepted to

negotiate one.

196

e Armistice itself emphasized being a temporary

arrangement with the end goal of a prompt and peaceful

settlement.

197

Two months later, in this context of sus-

pended war, the United States and South Korea agreed

on a Mutual Defense Treaty. It provided for defensive

obligations tailored to the context of conict on the Ko-

rean Peninsula. Each party committed to act to meet the

common danger in accordance with its constitutional

processes in case of an armed attack on either party, but

only in the Pacic area, on territories under their respec-

tive administrative control.

198

e alliance was a tentative arrangement. It was con-

cluded for an indenite period, “pending the develop-

ment of a more comprehensive and eective system of

regional security in the Pacic area,” and revocable by

either side with a year’s notice.

199

Beyond the goal of deterring “Communist aggression,”

the US wanted to make clear to Rhee that he would be

alone if he were the one that resumed hostilities.

200

In a

joint statement immediately after the signing of the Mu-

tual Defense Treaty, the United States and South Korea

emphasized the goal of “peaceful unication of historic

Korea as a free and independent nation.”

201

CHAPTER IV

CHAPTER IV: THE IMPLICATIONS OF A PEACE AGREEMENT FOR US-ROK RELATIONS 25

26 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

DRAFT

e Armistice and the alliance endured in largely the

same form for nearly seven decades despite North Ko-

rean peace oers, the collapse of the Soviet Union, and

the normalization with China.

202

ese originally ten-

tative arrangements have, in a word, become “systems,”

sustained by enough vested interests to become resilient

to shocks and internal contradictions.

203

A SYSTEM OF GROWING

CONTRADICTIONS

Systems may be resilient to contradictions, but they

are not immune to them. e success of the Armistice

in stopping active combat long gave credence to the

claim that it stood for peace and security. More than six

decades on, this originally tentative arrangement ap-

pears like a crumbling legal ction, laying bare intense

military tensions and spiraling militarization.

204

Both

Koreas agree today that “bringing an end to the current

unnatural state of armistice … is a historic mission that

must not be delayed further.”

205

Similarly, the alliance is also plagued by many con-

tradictions: the extent to which both allies see each

other as a potential liability, practices that have raised

tensions with the forces they are supposed to deter, and

arrangements that appear increasingly anachronistic.

206

e extent to which each side perceives the other as a

potential liability matters insofar as an alliance, like any

agreement, is only sustainable as long as both sides feel

better o with it than without it. One of South Korea’s

concerns is that Washington’s failing eort to achieve de-

nuclearization through pressure has clashed with Seoul’s

eorts to improve security through reconciliation with

the North. Washington has invoked alliance leverage to

press Seoul to wait for progress on denuclearization be-

fore advancing inter-Korean cooperation projects.

207

a 2019 Chicago Council poll, a majority (55 percent) of

South Koreans said their country and the United States

worked in dierent directions on regional security.

208

South Korea has also increasingly worried about the

possibility that the United States could conduct military

strikes on the North, as this would leave the South rst in

the line of retaliatory re.

209

Seoul intervened to oppose

strikes during the “re and fury” escalation of 2017, which

in many ways echoed a similar dynamic from the esca-

lation of 1994.

210

Conversely, some commentators have

also raised the question of the extent to which the United

States would remain committed to defend the South, giv-

en the rising stakes of military escalation in Korea.

211

CHAPTER IV: THE IMPLICATIONS OF A PEACE AGREEMENT FOR US-ROK RELATIONS 27

Major General Blackshear M. Bryan, U.S. Army (2nd from left),

Senior Member of the Military Armistice Commission, United

Nations' Command, exchanges credentials with Major General

Lee Sang Cho, North Korean Army (3rd from right), Senior

Communist delegate, at the Conference Building at Panmun-

jom, Korea, 28 July 1953. is was the day after the Korean

War Armistice went into eect. Credit: Photograph from the

Army Signal Corps Collection in the U.S. National Archives.

28 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

Meanwhile, in the United States, there has been

growing public debate on whether maintaining a global

military footprint serves US national interests, especially

in the midst of multiple crises that cannot be addressed

militarily – such as pandemics, climate change, and sys-

temic racism.

212

President Trump interpreted this debate

in a way that sparked an ongoing dispute with Seoul. He

demanded a quintupling of the South Korean contri-

bution to the costs of US troop presence, accusing the

country of freeriding on security.

213

South Koreans op-

posed these demands across the political spectrum, with

many accusing them of being extortionist.

214

Another contradiction is that the alliance, although

claimed to deter “Communist aggression,” has practices

that actually raise tensions with North Korea and Chi-

na, perpetuating Cold War divisions and fueling a vi-

cious circle of mutual insecurity and militarization – in-

cluding North Korea’s development of nuclear weapons.

US–ROK joint military exercises are a well-known

source of tension with the North. ey have at times

included training for preemptive strikes, “decapitation”

strikes targeted against the leadership, and incursions

in the North.

215

Another target of North Korean pro-

test is US eorts to “revitalize” original UN Sending

State participation in the UNC, an institution pre-

mised on war with the North.

216

e sending states

and South Korea remained skeptical of the revitaliza-

tion project.

217

Like North Korea, China has reacted with ire to the

introduction of certain types of US military hardware

on the Korean Peninsula. In particular, Beijing protest-

ed the installation of a US THAAD (Terminal High

Altitude Area Defense) missile defense battery in the

South. Economic pressure on Seoul soon followed.

218

is has left South Korea walking a tightrope between

its military ally and its main trade partner.

219

Bei-

jing also lent increased diplomatic assistance and aid

to North Korea amid rising Sino-American tensions,

blunting US pressure on the North.

220

In 2020, Chinese

ocial discourse signicantly played up commemora-

tion of the Korean War as a “victory” against the Unit-

ed States, mirroring contrary claims by Washington and

raising tensions with Seoul.

221

A third contradiction is the anachronism of certain

alliance arrangements, such as the mass stationing of

US troops and the delegation of OPCON over South

Korean forces. ese arrangements reect the priori-

ties of a time when the South was a poor and unstable

edgling state, worlds apart from the imposing military

and economic power it has become today.

e original purpose of maintaining tens of thou-

sands of US troops in Korea was to deter an invasion

from the North by having US forces serve as a “trip-

wire,” guaranteeing US intervention in case of con-

ict.

222

Today, this arrangement appears ill adapted to

the primary risk: an intentional or accidental nuclear

escalation, rather than a 1950-style invasion by North

Korean forces.

223

South Korea has, from the start of the war, also

heavily relegated OPCON over its armed forces to a

US commander to ensure increased military eective-

ness through greater coordination.

224

OPCON, roughly

speaking, stands for the authority to determine how

particular armed forces should achieve an objective

set by their ultimate command authority.

225

e per-

petuation of South Korean OPCON delegations has

nevertheless been described as “the most remarkable

concession of sovereignty in the entire world” by for-

mer US Forces Korea commander Richard Stilwell.

226

While there have been some adjustments over the years,

it is still the case today that, if combat were to resume,

South Korean forces would be controlled by a bilater-

al but US-led organ, the US–ROK Combined Forces

Command.

227

Eorts to change this status quo have

been delayed for years.

228

Some or all of these contradictions have factored into

South Korean popular protests directed against various

aspects of US military presence in the country. Mass

protests erupted in 2002 when two Korean girls were run

over by a US military vehicle and a US military court

acquitted them of negligent homicide, raising controver-

sy about US extraterritorial jurisdiction for troops in the

line of duty in Korea.

229

Environmental pollution caused

by oil leaks and toxic chemicals from US military bases

has also long been an issue of concern.

230

So, too, have

military developments that are perceived as driven by a

US policy to contain China, such as the construction of a

new naval base on Jeju island.

231

More recently, in 2015, public outrage followed the

revelation that the United States had imported anthrax

samples into South Korea for a biosurveillance pro-

gram.

232

In 2016, news that the US THAAD missile

defense system would be installed in Seongju led to

sustained protest by local residents, to the point where

even now it has to be supplied by helicopter.

233

ere

have been repeated accusations that the United States

and the UNC interfered in inter-Korean reconciliation,

which they have denied.

234

A peace agreement would improve the national se-

curity of all sides, reducing perceptions of each ally as

a security liability, negative impacts on relations with

North Korea and China, and the perceived need for the

mass presence of US troops and for OPCON delega-

tion. A peace agreement could also reduce the perceived

need to compromise before a security threat, potentially

intensifying scrutiny about costs such as the mainte-

nance of US troops or the cleanup of environmental

damage caused by the US military. How these trends

would play out depends on the sort of peace agreement

and subsequent peace regime that the United States

and South Korea would seek. is requires identifying

what a peace agreement legally entails for US–ROK

relations.

e following chart outlines the legal implications of

a peace agreement for the alliance, US troop presence,

OPCON, the Armistice, and the UNC:

DRAFT

Alliance

A peace agreement per se does not change relations

between allied co-belligerents and hence does not

legally imply an end to the alliance, unless otherwise

speciﬁed. The US–ROK Mutual Defense Treaty pro-

vides that the alliance “shall remain in force indef-

initely” until either side decides to revoke it with a

year’s notice, stating no conditions for revocation.

235

Certain commentators have raised the question of

whether the parties should include explicit clauses

regarding the revision or abolition of the US–ROK

alliance and the China–DPRK alliance in a peace

agreement.

236

The parties are free to include a com-

mitment thereto if they so choose. They are also free

to refuse, as alliances are ultimately a bilateral matter

legally protected from interference by third parties.

237

US troop presence

The presence of US troops in South Korea is

governed by the US–ROK Mutual Defense Treaty

and the US–ROK Status of Forces Agreement, and

neither are expressly predicated on the war.

238

Some

commentators have claimed that North Korea condi-

tions peace on a withdrawal of US forces from South

Korea, but this is disputed.

239

US troop presence in South Korea is, like the alliance

itself, a bilateral matter legally protected from inter-

ference by third parties.

240

South Korea, by virtue of

its territorial sovereignty, has a right to independently

decide whether it wants to end consent to the pres-

ence of US forces.

241

The United States may maintain

troops on South Korean soil only with South Korean

consent, but otherwise has the sovereign right to

independently decide to withdraw its troops.

242

Both

sides would be bound by certain procedural require-

ments in implementing such decisions.

243

OPCON

A peace agreement, by improving the security

environment, could accelerate change in OPCON

arrangements over South Korean forces. Currently,

the South Korean Joint Chiefs of Sta assume OPCON

over South Korean armed forces in “peacetime,” and

the bilateral but US-led Combined Forces Command

does so in “wartime.” “Peacetime” and “wartime” are

here descriptive shorthand that refers to active com-

bat rather than whether there is a legal state of peace

or war.

244

A peace agreement would nevertheless be

relevant to these arrangements, insofar as the United

States and South Korea regularly stress the need to

consider changes in the security situation.

245

South Ko-

rea retains ultimate command authority over its armed

forces and has the sovereign right to decide inde-

pendently whether to maintain delegation.

246

Likewise,

the United States has the sovereign right to decide

whether to continue accepting this responsibility.

Armistice

A peace agreement would imply the dissolution

of the Armistice or bar any claims that it is still in

force, as there is no raison d’être for a ceaseﬁre

under a state of peace.

247

The Panmunjom Declara-

tion, among numerous other statements, explicitly

states that a peace agreement should “replace”

the Armistice.

248

A peace agreement should

provide for a recognition of the demarcation line

agreed upon in the Armistice, to the extent that it

has also been recognized by the two Koreas in the

Basic Agreement of 1991.

249

United Nations

Command

A peace agreement must provide for the long

overdue dissolution of the UNC.

250

While there

has been dispute on the prospect of an end to the

UNC,

251

it should be clear that its persistence today

relies on an extreme interpretation of UN Security

Council resolutions 82 to 84 that is inconsistent

with peaceful coexistence.

252

The US-led UNC forc-

es fought North Korean forces back to the 38th par-

allel by September 1950, fulﬁlling the mandate to

“repel” the North Korean June oensive. They then

invaded the North by crossing the 38th parallel,

relying on an interpretation of the mandate to “re-

store international peace and security” that painted

North Korea’s very existence as a threat to it.

253

Insofar as a peace agreement would be a ﬁnal

settlement of the Korean War, it must be based on

a recognition that the resolutions of 1950 cannot

be a legitimate basis for use of force today. This

leaves no place for the UNC or any other inter-

pretations of “peace and security” grounded in

regime change. The persistence of the UNC is in

any case irreconcilable with the acceptance of

North Korea as a UN Member State in 1991

254

and

with the notion of “assistance” to South Korea

when Seoul is itself calling for a peace agreement.

UNC actions stiﬂing inter-Korean exchanges ap-

pear especially out of place.

255

The parameters of

inter-Korean reconciliation should be determined

by Koreans themselves.

256

The security component

at the border can be handled, for instance, under

the responsibility of the Inter-Korean Joint Military

Committee.

257

While the dissolution of the UNC would be a key

marker of intent to settle the war, its legal implica-

tions for US security arrangements in the region

are negligible.

258

The UNC has for decades been a

shell organ without standing troops.

259

The United

States itself informed the Security Council that it

would terminate the UNC on January 1, 1976.

260

never followed through, but it took steps to man-

age the consequences of dissolution, such as the

transfer of OPCON over South Korean forces from

the UNC to the CFC in 1978.

261

CHAPTER IV: THE IMPLICATIONS OF A PEACE AGREEMENT FOR US-ROK RELATIONS 29

30 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

e tentative arrangement of the US–ROK alliance,

born of wartime circumstances, has crystallized into a

resilient system. e gradual disappearance of its origi-

nal premises nevertheless highlights growing contradic-

tions. A peace agreement could reduce scrutiny of some

contradictions or intensify it on others, depending on

how cooperatively the United States and South Korea

manage the requisite implications of a peace agreement,

such as the dissolution of the Armistice and the UNC

and how the two countries recalibrate their relationship

in the pursuit of a peace regime.

e rst step in resolving an armed stando is for

all sides to agree as solemnly as possible not to harm or

threaten each other. As such, the rst priority of a peace

agreement should be to end the state of war and bind-

ingly recognize that wartime rights to use force have

ended. is reduces tensions and creates the space neces-

sary to discuss sustainable solutions to the causes of con-

ict. A peace agreement is the start of a process that cul-

minates in a lasting and stable peace regime. What this

means for the future of the security relationship between

the United States and South Korea should ultimately

be determined by the people and should aim to create a

peaceful, stable, and sustainable world.

The alliance, although claimed to

deter “Communist aggression,”

has practices that actually

raise tensions with North

Korea and China, perpetuating

Cold War divisions and fueling

a vicious circle of mutual

insecurity and militarization.

Press conference against THAAD deployment at

Soseong-ri, April 26, 2017. Credit: 소성리종합상황

실/No THAAD Situation Oce at Soseong-ri

DRAFT

Why Women Should Be

Involved in the Peace Process

is chapter explains why women should be meaningfully involved in the Korea

peace process, outlining the gendered costs of war, women’s eorts for peace on

the Korean Peninsula to date, and research into women’s participation in peace

processes in other nations that shows their positive impact.

THE COSTS OF WAR FOR

KOREAN WOMEN

As has been the case for women in conicts in other

countries, Korean women have been physically, emo-

tionally, and socially harmed by the Korean War and its

ongoing eects.

During the war, as people were forced to ee their

homes and villages, women were responsible for the dif-

cult task of nding food and shelter for their families.

ey were also subject to violence, including systemic

sexual violence that continued from the Japanese colonial

occupation of Korea (1910–1945).

Before the war, from 1931 until the end of World War

II, the Japanese Imperial Army sexually enslaved Kore-

an women in so-called comfort stations throughout the

Asia-Pacic region. While Chinese, Filipino, and other

women were part of this extensive system of sexual slavery

servicing Japanese troops, Korean women and girls – as

colonial subjects under Japanese occupation of Korea –

made up the majority of the estimated 50,000 to 200,000

“comfort women.”

262

Although state-regulated prostitution was outlawed in

South Korea in 1948, during the Korean War the South

Korean government set up a similar comfort station sys-

tem for the South Korean armed forces and, separately

with the US Army, for the Allied forces (90 percent of

whom were US troops).

263

Entrenched patriarchal no-

tions of women’s sexuality in Korea made it nearly im-

possible for these women to reincorporate into society;

many were labeled outcasts and rejected by their families

and communities.

264

After the war and with the mass stationing of US

troops in South Korea, the system of military prostitu-

tion established during Japanese rule continued. Since the

Korean War, over 1 million Korean women have worked

in “camptowns” alongside US military bases to service US

troops. “e war, with its accompanying poverty, social

and political chaos, separation of families, and millions of

young orphans and widows, ‘mass produced’ prostitutes,

creating a large supply of girls and women without homes

and livelihoods,”

265

wrote Katharine H.S. Moon, a political

scientist and expert on US military prostitution in South

Korea. e South Korean government actively encour-

aged the women in camptowns to engage in prostitution

to allow US troops to “relax” and “enjoy sexual services”

with them.

266

e government operated and managed the

camptowns – implementing a “comfort women” registra-

tion system and conducting so-called patriot education

with the US military – to strengthen military alliances and

acquire US dollars by “promoting and boosting morale”

among US troops.

267

us, camptowns became a critical

part of the South Korean economy, which struggled in the

aftermath of the war. “Our government was one big pimp

for the U.S. military,” recounted Ae-ran Kim, a South Ko-

rean survivor of camptown prostitution. “ey urged us

to sell as much as possible to the GI’s, praising us as ‘dol-

lar-earning patriots.’”

268

Yet the women were stigmatized,

“destined to invisibility and silence.”

269

e unresolved state of the war has also had insid-

ious eects on women. Both North and South Korea

have become highly militarized societies, with universal

male conscription. Research suggests that greater mili-

tarization is signicantly correlated with higher gender

CHAPTER V

CHAPTER V: WHY WOMEN SHOULD BE INVOLVED IN THE PEACE PROCESS 31

32 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

inequality and lower levels of women’s participation in

the workforce.

270

In South Korea, women’s participa-

tion in the workforce has grown over the years

271

but

remains low among similarly developed countries.

272

Among such countries, South Korea consistently ranks

last on indicators of equality for women in the work-

place, with women earning 35 percent less per year than

men.

273

In North Korea, women’s participation in the

workforce is highly segregated, with women overrepre-

sented in low-paying elds such as light industry and

education. As a result, many women instead choose to

work in the unocial labor market.

274

Militarized societies also have higher rates of vio-

lence against women

275

and reinforce gender subordina-

tion.

276

While rates of intimate partner violence in South

Korea have declined in recent years, they remain higher

compared to many other countries.

277

In 2019, women

accounted for 98 percent of intimate partner crime vic-

tims.

278

South Korea also has one of the highest rates of

female homicide victims in the world.

279

In North Korea,

women are reportedly subject to widespread sexual vio-

lence by government ocials, police, soldiers, and others,

with little recourse.

280

281

Societies that invest heavily in the military divert re-

sources away from healthcare, childcare, welfare programs,

and job training – things that disproportionately impact

women of both Koreas, who bear the double burden of

being primary caregivers of children and aging parents, as

well as working outside the home.

In North Korea, widespread sanctions impact women

economically, socially, and physically. Sanctions hurt wom-

en’s economic security by targeting industries, such as tex-

tiles, that have high ratios of female workers. As observed

in other countries such as Iraq,

282

Haiti,

283

and Myanmar,

284

sanctions destabilize society, producing greater social dis-

order and leading to increased gendered discrimination.

Sanctioned states are less likely to enforce women’s rights.

Sanctions against North Korea also cause delays in the

delivery of life-saving humanitarian aid and impede the

production of food.

285

According to the UN Commission

on Inquiry on human rights in the DPRK, North Korea’s

“dire economic and food situation” is increasingly pushing

women into spaces and activities where they are more vul-

nerable to assault and exploitation.

286

More than 70 percent of North Korean migrants are

women, and they are particularly vulnerable to sexual and

labor exploitation.

287

According to a 2018 Human Rights

Watch report, North Korean women migrants and women

traders experience unwanted sexual advances and violence

by police or government ocials.

288

In August 2020, two

South Korean military ocers were indicted for sexual-

ly assaulting and raping a North Korean woman migrant

who was in their custody.

289

In South Korea, North Korean women lack market-

able skills to survive in a hyper-capitalistic society, and

most struggle to acculturate, much less compete, in South

Korea’s highly globalized society where overseas study and

the acquisition of foreign languages have become com-

monplace. ey also face prejudice due to long-standing

stereotypes of North Koreans as either cold-blooded com-

munists or starving refugees.

290

Although more research is needed on the impact of the

unresolved Korean War on women, it is clear that women’s

equality, status, and safety have been undermined by the

ongoing conict.

LEGAL FRAMEWORKS: WOMEN’S

STAKE AND REPRESENTATION

IN PEACE PROCESSES

Due to the gendered impacts of war and militarism,

women have a particular stake in resolving the Korean

War but have been excluded from formal peacemaking

initiatives – a typical pattern internationally. Very few

women participated in the inter-Korean summits held

between 2000 and 2018, whether as ocial delegates,

advisors, or those representing sports, business, art, or

religion. From 1971 to 2018, a total of 667 inter-Korean

talks were held at the government level, but no ocial

talks have taken place that address women’s issues.

International Law

Mandates Women’s Participation

North Korea, South Korea, and the United States have

contributed to and are subject to an extensive established

body of international law that supports women’s inclusion

in eorts to resolve conict and promote peace.

A key treaty is the UN Convention on the Elimina-

tion of All Forms of Discrimination Against Women

(CEDAW), which requires that states parties ensure

women’s equal participation with men in public and

political life (Article 7) and in representing their gov-

ernments at the international level (Article 8). In 2013,

these provisions were strengthened to include conict

situations and peacemaking in CEDAW’s General Rec-

ommendation 30. To fulll these obligations, states may

need to take special measures to overcome obstacles to

women’s participation.

North Korea acceded to CEDAW in 2001 and has

submitted four periodic reports for consideration by the

CEDAW Committee.

291

South Korea ratied the treaty

in 1984, and the government has submitted eight coun-

Research shows that the full,

eective, and meaningful

participation of women and civil

society groups will contribute to

a more durable peace.

DRAFT

try reports for consideration by the CEDAW Commit-

tee. e United States has not ratied CEDAW but has

signed the convention, which demonstrates that it is

legally prohibited from acting in contravention of its ob-

ject and purpose. Moreover, as a permanent member of

the UN Security Council, the United States has helped

to create a comprehensive multilateral framework known

as the Women, Peace and Security (WPS) Agenda.

Starting with Resolution 1325 in the year 2000, the

UN Security Council has issued ten resolutions articulat-

ing the close connection between women’s rights, gender

equality, and peace and security. ese resolutions draw

on states’ existing binding commitments under the UN

Charter and other international laws dealing with peace,

security, and human rights.

292

Taken together, CEDAW’s

General Recommendation 30 and these Security Coun-

cil resolutions on WPS constitute a framework of inter-

national law that upholds women’s rights to substantive

and equal participation in peace negotiations, mediation,

and social reconciliation initiatives.

293

As members of the United Nations, North Korea,

South Korea, the United States, and any other states

involved in facilitating peace on the Korean Peninsu-

la must uphold these international legal obligations and

norms. A similar obligation extends to multilateral orga-

nizations and nongovernmental organizations seeking a

Korean peace agreement.

Domestic Laws and Policies

Support Women’s Participation

To implement these international laws and policy frame-

works domestically, 86 countries have adopted National

Action Plans on women, peace, and security.

294

In 2017,

the United States passed the Women, Peace and Security

(WPS) Act, which makes women’s meaningful participa-

tion in peacemaking a US foreign policy priority.

e 2019 US Women, Peace and Security Strategy for

implementing the Act focuses on women’s participation

in peace and security processes. It emphasizes the need to

train US diplomatic, military, and development personnel

in women’s inclusion and to support and consult with lo-

cal women in conict situations. e Act and the Strategy

provide for elected ocials to hold the Administration

accountable in implementing US law in all its foreign re-

lations, including participation in peace processes.

Although North Korea has not adopted a WPS Na-

tional Action Plan, in its CEDAW reporting it has made

clear that it seeks to champion gender equality. A peace

process with substantive participation of women would

support this goal. It would also help the government

achieve its legal obligations to promote gender equality

and women’s participation in public life, as articulated

in the country’s 2010 Law on the Protection and Pro-

motion of the Rights of Women, and its 1946 Gender

Equality Law.

Women from the

two Koreas met

at Panmunjom

in 1992 to discuss

the role of women

in creating peace

in East Asia.

Credit: ⓒe

Kyunghyang

Shinmun, Korea

Democracy Foun-

dation

CHAPTER V: WHY WOMEN SHOULD BE INVOLVED IN THE PEACE PROCESS 33

34 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

In 2010, women’s and peace organizations in South

Korea began to press for the establishment of a 1325

National Action Conference. In 2012, the National As-

sembly passed a resolution for the systematic and stra-

tegic implementation of the 1325 National Action Plan.

Women Making Peace, the Korean Women’s Association

United, and 45 other women’s organizations formed an

NGO Working Group on Women, Peace, and Security.

rough a consultative body composed of representatives

from government agencies, civil society, and academia, as

well as open discussions and activities to revise laws by

government ministries, the South Korean government

established the UNSCR 1325 National Action Plan in

2014. In 2017, a revision of the Framework Act on Gen-

der Equality stipulated the mandatory establishment of

the National Action Plan and evaluation of implemen-

tation. South Korea is currently working on a third Na-

tional Action Plan from 2021 to 2023.

Research on the Eects of Women’s

Participation in Peace Processes

When women inuence peace processes, the result-

ing peace is more likely to last.

295

In addition, a study of

peace accords in 51 countries between 2000 and 2016

found that women’s inclusion in negotiations increased

the likelihood that the nal agreement would include

gender provisions by 37 percent.

296

Gender equality is

an end in itself, but it is also a greater predictor of peace

than a nation’s wealth, religion, or level of democracy.

297

Connecting civic groups to ocial peace talks also

has a positive impact. Peace agreements were 64 percent

less likely to fail when civil society representatives par-

ticipated.

298

Although women are typically underrepre-

sented among the warring parties who dominate peace

negotiations, they are often at the forefront of civic peace

movements. Research into documented informal peace

processes shows that women’s organizations were in-

volved in 71 percent of cases between 1991 and 2017.

299

In these unocial dialogues (Track II diplomacy), wom-

en’s groups advocated for peace consistently. Further, they

helped to legitimate the formal peace process among the

public, engaged in smaller-scale conict resolution initia-

tives, and advocated for gender equality provisions.

300

Interactions between women’s groups and those with

access to formal negotiations can have a positive eect.

In Colombia, for example, women’s organizations suc-

cessfully pushed for greater representation of women in

the formal peace process to end the country’s conict.

Female negotiators advocated for a gender sub-commis-

sion, a formal channel for women’s groups to access the

negotiations. e 2016 peace agreement contained 100

strong gender provisions.

301

In the Philippines, women with access to formal nego-

tiations between the government and the Moro Islamic

Liberation Front created multiple channels for women’s

groups to contribute in formal roles and in national con-

sultation processes. As a result, women secured signif-

icant commitments to their political participation and

protection from violence in the 2014 Comprehensive

Agreement on Bangsamoro.

302

Also, in Kenya, women’s groups helped ensure that the

African Union appointed a woman, Graça Machel, as

one of its three mediators. She supported the civil society

Women’s Consultation Group in advocating for gender

equality provisions in the National Dialogue and Recon-

ciliation Accord 2008.

303

WOMEN’S EFFORTS

FOR PEACE IN KOREA

For decades, women on the Peninsula and internationally

have mobilized to end the Korean War through grass-

roots action.

Inter-Korean

Women’s Eorts

ere have been three contexts for inter-Korean women’s

eorts for peace:

Seminar on Peace in Asia and Women’s Roles:

After more than 40 years of forced division, a histor-

ic meeting between North and South Korean women

took place in Tokyo, Japan, in May 1991, entitled “Peace

in Asia and Women’s Roles.” It continued from 1991 to

1993, marking the rst time civilians visited North and

South Korea through Panmunjom since the division. A

second conference was held in Seoul where 15 North

Korean women leaders set foot on South Korean soil

for the rst time. A year later, 30 South Korean women

leaders took part in a third conference in Pyongyang.

A fourth meeting was held in Tokyo. e participants

discussed the issues of Japanese military sexual slavery,

unication, patriarchy, Korean survivors from atom-

ic bombings, and peacebuilding. ey decided to meet

regularly on the issue of Japanese military sexual slavery.

A fth meeting, slated for Seoul, had to be canceled due

to the strained relationship between the two Korean

governments. However, North Korean women who had

organized and participated in the previous conferences

founded the Korean Women’s Association in Solidarity

with Asian Women.

304

Japanese women reorganized their

meetings into a council in solidarity with Korean wom-

en. e South Korean women who led the conferences

formed Women Making Peace in 1997 and provided

leadership for the women’s peace movement.

Inter-Korean Women’s Exchanges for Victims of

Japanese Military Sexual Slavery: Justice for former

“comfort women” is an important shared concern for

both Koreas. In 1988, the Korean Council for the Wom-

en Drafted for Military Sexual Slavery by Japan was

established in South Korea, and North Korea launched

its own organization, Jongtaewie

305

(Korean–Japanese

Military Sexual Slavery and Forced Training Victims

Countermeasure Committee) in 1992. e two Koreas

have participated in eight forums to discuss Japan’s post-

DRAFT

war settlement regarding this issue. e 1995 Beijing

Declaration and Platform for Action addressed it, and

in 1996, the UN Human Rights Commission conrmed

military sexual slavery as a criminal violation of inter-

national law and a legal responsibility of the Japanese

government, including compensation to victims. In 2000,

the Women’s International War Crimes Tribunal on

Japan’s Military Sexual Slavery, a people’s tribunal that

included women from several aected nations, convicted

the Japanese Emperor for this crime against humanity.

Further inter-Korean meetings followed, although this

issue remains unresolved, as the Japanese government has

refused to accept responsibility for it.

The Committee on Women under the June 15

Inter-Korean Joint Declaration: In 2000, at the his-

toric rst inter-Korean Summit, the two Koreas agreed

to a new initiative, the June 15 Joint Declaration, to begin

the process of reconciliation and reunication. Several

inter-Korean civil society committees were established to

support its implementation, including farmers, workers,

academics, and women’s groups. Various North–South

women’s reunication events took place from 2002 to

2005, including a gathering at Mount Kumgang in the

North where 350 South Korean women met 350 North

Korean women and 20 women from the Korean diaspora.

At this meeting, attendees launched a joint women’s com-

mittee to implement the June 15 Declaration. Since then,

the North–South Women’s Committee has contributed to

the peace process as an inclusive commission by holding

regular meetings with a common goal of implementing

the Inter-Korean Joint Declaration. Five women from

North Korea and eight women from South Korea met to

continue its work in 2019.

International

Women’s Solidarity

ere have been three situations where international

groups of women have used their independent status to

support Korean women’s peace eorts:

International Fact-ﬁnding Delegation to North

Korea: During the Korean War, the Korean Democrat-

ic Women’s Union in North Korea invited the Women’s

International Democratic Federation (WIDF) to witness

and report on the impacts of the war. In May 1951, 21

women from 17 countries documented the devastation

and called for an immediate end to the war. Submitted

to the United Nations, the WIDF report accused the

United States–led UN forces of war crimes, for which

the organization was stripped of its NGO consultative

status at the UN. Nonetheless, the group continued to

call throughout the Cold War for the withdrawal of all

foreign troops from Korea for a permanent peace settle-

ment to replace the Armistice.

Northeast Asian Women’s Peace Conference:

Following the progress made during the “sunshine years”

(2000–2008), a conservative South Korean government

stymied inter-Korean women’s eorts. To create new

momentum, South Korean women’s groups organized

the Northeast Asian Women’s Peace Conference, with

In 2015, an

international

delegation of

30 women

— including

feminist icon

Gloria Steinem

and Nobel Peace

laureates Leymah

Gbowee and

Mairead Maguire

— crossed from

North to South

Korea calling

for the end of

the Korean War

with a peace

agreement. ey

held symposiums

in Pyongyang

and Seoul, and

walked with some

10,000 women

on the streets of

Pyongyang, Kae-

song, and Paju.

Credit: Stephen

Wunrow

CHAPTER V: WHY WOMEN SHOULD BE INVOLVED IN THE PEACE PROCESS 35

36 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

participants from South Korea, Japan, the United States,

Russia, and China that paralleled the ocial government

six-party talks from 2008 to 2012. e Northeast Asian

Women’s Peace Conference, held in Seoul and Washing-

ton, aimed at resolving the North Korean and Northeast

Asia nuclear issue. It was organized by congresswomen,

scholars, and civil society organizations to develop mod-

els of women’s participation in 1.5-track negotiations

(diplomacy involving ocial and nonocial participants)

in the peacebuilding process on the Korean Peninsula.

It also contributed to improving the global leadership

of the Korean women’s peace movement and provided

an opportunity for women from ve Northeast Asian

countries to engage in international solidarity activities

toward the denuclearization of the Korean Peninsula and

the establishment of a peace regime in Northeast Asia.

Unfortunately, North Korean women did not participate

in this conference due to tensions in North–South re-

lations following the death of a South Korean tourist at

Kumgang in 2008.

Women Cross DMZ: In 2015, also under a conser-

vative South Korean government, an international del-

egation of 30 women worked with women’s and peace

committees in North Korea and South Korea to call for

the end of the Korean War with a peace agreement. Over

250 Korean women discussed the impacts of the unre-

solved war on women’s lives at symposiums in Pyong-

yang and Seoul, and some 10,000 women walked on

the streets of Pyongyang, Kaesong, and Paju with the

international group of women. e group that organized

this action, Women Cross DMZ, has continued to build

a transnational feminist movement, including the launch

of the 2019 campaign Korea Peace Now! Women Mobi-

lizing to End the War jointly with the Korean Wom-

en’s Movement for Peace, Nobel Women’s Initiative, and

Women’s International League for

Peace and Freedom. In 2019, the

campaign commissioned a multidis-

ciplinary panel of experts to produce

the rst comprehensive report on

“e Human Costs and Gendered

Impact of Sanctions on North

Korea.”

306

Women Cross DMZ ac-

tivities have included peace walks

and symposiums along the southern

border of the DMZ in 2016, 2017,

and 2018; meetings with North and

South Korean women in Indonesia

in 2016; a gathering of Northeast

Asia women in Beijing in 2018; and

substantial input on a US Congres-

sional resolution (H.Res. 152) call-

ing for an end to the Korean War

with a peace agreement, which has

52 co-sponsors as of the publication

of this report.

KEY RECOMMENDATIONS FOR WOMEN’S

INCLUSION IN A KOREA PEACE PROCESS

e Korea Peace Now! campaign urges all parties involved

in the peace process to ensure the full, eective, and mean-

ingful participation of women and civil society groups.

Research shows this will contribute to a more durable

peace. International law and national laws and policies also

mandate women’s participation in peace processes.

To this end, we recommend that governments ensure

that at least 30 percent of ocial negotiating teams are

composed of women, which should be considered a oor

rather than a ceiling. Governments should also appoint

Women, Peace and Security Ambassadors to anchor and

coordinate women’s participation. A consultative forum

should be established to enable civil society groups to

contribute in meaningful ways by engaging in consis-

tent two-way communication with negotiating parties

and mediators – including through advanced sharing of

agendas and documents. Finally, we urge all parties to

help reduce barriers to women’s meaningful participation

in the peace process. Flexible funding could cover sup-

port for childcare, travel, accommodations, and security,

among other needs, and training and mobilization initia-

tives could help amplify women’s voices.

Given the paucity of women involved in ocial talks,

we believe these small but signicant steps can contrib-

ute to a durable peace regime that will pave the way for

demilitarization of the Korean Peninsula and redening

security away from militarism and war toward a feminist

understanding that centers human needs. Over 65 years

have passed since the signing of the Armistice in 1953.

Women are eager and able to participate in a Korea peace

process that will bring greater stability, healing, and peace

to the Korean Peninsula, the Northeast Asia region, and

the wider world.

With her brother

on her back, a

war-weary

Korean girl

trudges by a

stalled M-26

tank at Haengju,

Korea, June 1951.

Credit: U.S.

Navy/Maj. R. V.

Spencer, UAF

DRAFT

Recommendations

e failure to ocially end the Korean War continues to fuel deep insecurity,

intense militarization, and unconscionable human costs. Pressure has failed

for decades to resolve this worsening crisis. Based on this report’s ndings, we

recommend that the United States, South Korea, and North Korea promptly

decrease military tensions by concluding a fair and binding peace agreement. A

peace agreement would mark unambiguous recognition, by all sides, that wartime

rights to use force have ended. It is a long overdue and mutually benecial step

that is critical to the eective resolution of the wider crisis, including nuclear and

human rights issues. As the most solemn instrument available to renounce use of

force, a peace agreement would demonstrate the sincerity of the parties in seeking

a peaceful resolution. It would create unparalleled new momentum toward the

creation of a lasting and stable peace regime in the region.

For a peace agreement to succeed, we recommend that its

negotiation and conclusion be based on the following prin-

ciples.

1 // Peace now: e prospective parties should con-

clude a peace agreement without delay or preconditions

to rein in as soon as possible the growing insecurity and

human costs of war. ere are no legal preconditions for

belligerents to conclude a peace agreement. e prospec-

tive parties should not set political preconditions.

2 // Binding peace: e prospective parties should

conclude a peace agreement that is binding in interna-

tional law to achieve a legal and permanent conclusion

to the state of war. ey may rst declare an end to the

war in a nonbinding instrument, if necessary, to build

political momentum toward the ratication of a binding

agreement.

3 // Peace as ﬁnal settlement of the war: e pro-

spective parties should recognize that a peace agreement

represents a nal settlement of the war. ey should rec-

ognize that wartime rights to use force have ended, and

that UN Security Council resolutions 82 to 84 cannot

today be relied upon as a legitimate basis for use of force.

e parties should recognize that a peace agreement im-

plies the end of the Armistice and the United Nations

Command. e parties should recognize the borders de-

clared in the Armistice.

4 // Peace as foundation for a peace regime: e

prospective parties should conclude peace regardless of

whether they achieve consensus on aspects of the security

crisis beyond the use of force. ey should recognize that

peace is a trust-building foundation that would facilitate

consensus on these other aspects. ey should commit

to further pursue the resolution of the crisis through the

eventual realization of a lasting and stable peace regime

and through the normalization of diplomatic relations.

5 // Peace as duty: e prospective parties should

recognize that a peace agreement does not represent a

concession from either side: peace is mutually bene-

CHAPTER VI

CHAPTER VI: RECOMMENDATIONS 37

38 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

cial and a duty in itself. e parties should refrain from

instrumentalizing the prospect of a peace agreement as

a bargaining chip for subjects beyond the use of force.

ese subjects should be negotiated on the basis of reci-

procity and fairness. Any deviation from these principles

changes the nature of negotiations and reduces the like-

lihood of peace.

In order to maximize the sustainability of a peace agree-

ment, we recommend that the negotiation and realization

of a subsequent peace regime be based on the following

principles:

1 // Cooperative and shared security: A peace re-

gime should be based on the pursuit of cooperative and

shared security, as opposed to the confrontational and ze-

ro-sum logic of deterrence that has prevailed during the

war. A peace regime should recognize that all sides are

safer when they realize fair arms reduction and imple-

ment military condence-building measures than when

they compete in an arms race amid a low-trust environ-

ment.

2 // Ending the Cold War divide: A peace regime

should aim to end the division of the region into Cold

War blocs. A peace regime should be based on mutual

recognition of each side’s right to exist, their sovereign

equality, and their basic freedom to choose their own po-

litical, social, economic, and cultural system. A peace re-

gime should recognize the right of Koreans to determine

the fate of their own nation without foreign interference.

3 // Nuclear–weapons free world: A peace regime

should hold all sides accountable to their responsibil-

ity in realizing a nuclear–weapons free world. A peace

regime should recognize that nuclear weapons, given

their immense destructive power, threaten to have cat-

astrophic humanitarian consequences and pose grave

implications for human survival.

4 // Right to peace: A peace regime should be based

on the full realization of the right to peace and on the

recognition that life without war is the primary inter-

national prerequisite for the full implementation of the

rights and fundamental human freedoms proclaimed by

the United Nations. A peace regime should be based on

the protection of the inherent dignity and worth of all

human beings, regardless of gender, political orienta-

tion, nationality, or other distinguishing features.

5 // Women’s participation: A peace regime should

be based on the inclusion of women in the peace pro-

cess, pursuant to the requirements of the Convention

on the Elimination of all Forms of Discrimination

Against Women, as well as the Women, Peace, and

Security Framework laid out in United Nations Secu-

rity Council resolution 1325. A peace regime should

establish procedures for the full, eective, and mean-

ingful participation of women and civil society groups

advocating for peace and redene security away from

militarism and war and toward a feminist understand-

ing that centers human needs and ecological sustain-

ability.

ousands of

prayer ribbons

wishing for peace

and reunica-

tion are tied at

the fence of the

Demilitarized

Zone at Imjingak,

South Korea.

DRAFT

Ratication of

a Peace Agreement

is report covered the key elements for a binding, nal settlement of the Korean

War under international law. is annex supplements that analysis by outlining

the key parties’ relevant domestic legal procedures for concluding a binding peace

agreement with one another.

US Ratiﬁcation

Under US law, the President raties international

agreements – though, depending on the nature of the

agreement, he may have to seek advice and consent of

the Senate, or in other cases the approval of Con-

gress.

307

US law is unsettled on which category peace

agreements fall under.

308

e Constitution does not explicitly dene who has the

power to conclude or declare peace. It divides war powers

by making the President the Commander-in-Chief of the

armed forces and by giving Congress the power to declare

wars and raise and support armies.

309

e record neverthe-

less shows that the Founders decided to remain silent on

the power to end war and declare peace, with representa-

tives arguing that the power to declare peace should not be

limited exclusively to Congress.

310

e Constitution gives the President the “power, by

and with the advice and consent of the Senate, to make

treaties, provided two-third of the Senators present

concur.”

311

Under US law, “treaties” are dierent and

narrower than in international law.

312

It is well-estab-

lished practice that the President may also conclude and

ratify so-called sole executive agreements without going

through a supermajority in the Senate, and in fact do so

with great frequency.

313

In other instances, Congress au-

thorizes the President to conclude a certain agreement.

Both types of executive agreements are still “treaties” in

the eyes of international law, in the sense that they are

agreements between states that are binding under inter-

national law.

314

Precedents suggest that peace agreements may

be concluded either with advice and consent of the

Senate or simply as sole executive agreements. e

Treaty of Versailles ending World War I, for instance,

was submitted to the Senate and famously rejected,

delaying peace with Germany.

315

e San Francisco

Peace Agreement ending World War II between the

United States and Japan was also submitted to advice

and consent of the Senate.

316

A relatively more recent

peace agreement, the Paris Peace Accords ending US

participation in the Vietnam War, was concluded as a

sole executive agreement.

317

Overall, the general trend

in US practice since World War II has been toward the

ratication of even major international agreements as

executive agreements.

Put simply, there is no reason under international law

and likely not even under domestic law that should pre-

clude the President of the United States from ratifying

a peace agreement as sole executive agreement.

Of course, from a political perspective, however, the

path that would most thoroughly, durably, and cred-

ibly resolve the Korean War would be for the United

States to secure consent of two-thirds of the Senate, or

at least a subsequent Congressional stamp of approv-

al as a Congressional-executive agreement. Ending the

Vietnam War through a sole executive agreement left

American society divided on the issue, and the United

States did not normalize relations with Vietnam until

two decades after peace.

318

Ultimately, peace will come

down to political will, and the more that can be demon-

strated, the better.

CHAPTER VI: RECOMMENDATIONS 39

ANNEX I

40 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

South Korean Ratiﬁcation

e South Korean Constitution is comparatively clearer

on powers relating to ratication and peace. e President

has the power to “conclude and ratify treaties” and specif-

ically to “declare war and conclude peace.”

319

Meanwhile,

the National Assembly has “the right to consent to the

conclusion and ratication” of a host of dierent types of

treaties, including “peace treaties.”

320

e President can

therefore conclude a peace agreement and ratify it upon

approval by the National Assembly. To what extent the

“special interim relationship stemming from the process

towards reunication” aects the rules on agreements

with North Korea, however, requires clarication. A peace

agreement with the North may not require approval by the

National Assembly to be binding.

When the two Koreas concluded the Inter-Kore-

an Basic Agreement of 1991, a landmark nonaggression

agreement that laid down the foundations of inter-Kore-

an relationships, disputes erupted in South Korea about

its binding force.

321

South Korean President Roh Tae-woo

did not submit the agreement to the National Assem-

bly for consent, but the agreement contained a clause

providing that it would come into force upon exchange

of instruments of ratication, and the two parties did so

on February 19, 1992. e South Korean Constitutional

Court nevertheless found that it was a mere “gentlemen’s

agreement,” based on the Agreement’s own provision that

it was not an agreement between states.

322

e South Ko-

rean Supreme Court found similarly that the Agreement

could not be considered as a treaty between states or an

equivalent, at least for the purpose of determining whether

its provisions applied with the same force as domestic law

in the South Korean legal system.

323

Partly in reaction to the controversy on the Basic

Agreement, and partly because inter-Korean economic

projects required legal certainty and protection, in 2003

South Korean President Roh Moo-hyun took the nec-

essary steps to ensure that four inter-Korean agreements

concluded by his predecessor in 2000 would get recog-

nized as having legal force.

324

ese agreements – on in-

vestment protection, clearing settlement, double taxation,

and dispute resolution – were ratied after approval by the

South Korean National Assembly on June 30, 2003, and

by the Presidium of North Korea’s Supreme People’s As-

sembly on July 24, 2003.

325

By 2005, South Korea was adopting the Development

of Inter-Korean Relations Act, which claried the legal

regime for the ratication of inter-Korean agreements.

Under the Act, the President has the power to conclude

and ratify inter-Korean agreements, after deliberation by

the State Council – the cabinet of ministers.

326

e Act

also gives the National Assembly the right to “consent to

the conclusion and ratication of South-North Korean

agreements which place heavy nancial burdens on the

State or nationals, or South-North Korean agreements

concerning legislative matters.”

327

e stated scope of in-

ter-Korean agreements that have to be submitted to the

National Assembly for consent is much narrower than the

scope described in the Constitution for treaties. In partic-

ular, there is no mention of “peace treaties” in the scope of

the Act.

e question of the ratication of security-related

agreements with the North came to the fore in 2018,

when President Moon ratied the Inter-Korean Military

Agreement.

328

He did so on the basis of a State Council

approval, rather than a National Assembly approval. e

South Korean Ministry of Government Legislation had

previously validated that approach insofar as it did not

involve heavy nancial burdens or legislative matters.

329

is suggests that a bilateral peace agreement with the

North could also be ratied after State Council approval,

as long as it ts those same conditions. at said, if peace

is concluded in a single multilateral agreement rather than

a joint series of bilateral ones, there may be disputes as

to whether State Council approval is sucient, given the

involvement of parties outside the scope of the Develop-

ment of Inter-Korean Relations Act.

North Korean Ratiﬁcation

Under the North Korean Constitution, the Chairman of

the State Aairs Commission – the Supreme Leader – has

the authority to “ratify or rescind major treaties conclud-

ed with other countries.”

330

e Presidium of the Supreme

People’s Assembly has the authority to “approve or nullify

treaties concluded with other countries.”

331

e Constitu-

tion does not specify which agreements should go through

this procedure. North Korea is a party to a wide variety of

bilateral and multilateral treaties.

332

ere is no known in-

stance of a dispute between the Assembly and the highest

executive authority on the power to ratify.

CONCLUSION

It is important to note not just the international legal

contours of a potential peace agreement to end the Ko-

rean War, but also the domestic procedural implications

for each party. is is because, as previously discussed, the

key element in making a peace agreement binding under

international law is that the parties must demonstrate that

they are consenting to be bound by the agreement.

333

failure of any of the parties to comply with their domes-

tic legal requirements could undermine a case that the

new agreement is binding.

334

Further, it could weaken the

signal they are sending to the other parties that they are

serious about conclusively ending the war and building a

peace regime.

EXTERNAL CONTRIBUTIONS 41

To Avoid War with North

Korea, A Change in

Approach Is Needed

By Lt. Col. Daniel L. Davis, USA, ret

im Jong Un does not want to go to

war with the United States. He has no

intention of ever using his arsenal in an of-

fensive strike against either the US or any

of its allies. What he does desire, above all,

is to preserve his regime and continue to

rule in Pyongyang unchallenged.

To accomplish these objectives, Kim

seeks to formally end the Korean War,

achieve closer political and economic ties

with South Korea, and see his domestic

economy expand. All of this gives us enor-

mous opportunity to ensure the security of

the Peninsula and reduce the risk of war.

Alternatively, the United States could

refuse to bring its policies into alignment

with historic and cultural realities at play

on the Peninsula and in the region and

instead cling to the status quo that has

reigned more or less unchanged across ad-

ministrations since the early 1990s. If we

do that – if we choose to maintain an ap-

proach that has manifestly failed to accom-

plish stated objectives – the perpetual cost

to us will continue to pile up and the risk

of war will remain an ever-present reality.

Given the geopolitical realities at play in

1950, there was some merit in Washington

showing concern over what might happen

to US interests in the Asia-Pacic region if

a communist-backed regime in Pyongyang

were to militarily conquer South Korea

and drive the US out. e 1950–53 Korean

War was fought to prevent that outcome. It

eectively succeeded.

In the rst few decades after the war, it

also made sense for the US to retain a mili-

tary presence in South Korea to prevent a

repeat of the North’s invasion. As South

Korea became increasingly wealthy, as its

people became more educated, and as its

armed forces became more modern, how-

ever, the justication for American military

presence began to dwindle.

e “hermit kingdom” nature of North

Korea’s regime ironically also helped tip

the military balance in favor of Seoul, as its

isolation stunted any hope that Pyongyang

would be able to produce as solid an econ-

omy as its neighbors to the south. When

the Soviet Union disintegrated in 1992,

however, North Korea was locked into a

permanent military and economic position

of inferiority to the South from which it

could never recover.

I rst served in South Korea as a member

of the U.S. Army in the late 1990s, serving

as a US coordinator to the Second Korean

Army headquartered in Taegu. Working

directly with South Korean soldiers, I saw

rst-hand that they had improved tremen-

dously from the rag-tag outt that could

barely conduct even basic military opera-

tions in the 1950s. ey were well trained,

motivated, and had vastly superior military

technology to their northern counterparts.

e two decades since have only seen the

disparity between the two Koreas grow even

greater in the South’s direction.

ere has long been a belief among

many in the United States that South Ko-

rea was weak militarily and that without

American combat troops defending the

Demilitarized Zone (DMZ) that separates

the two Koreas, Pyongyang forces would

be able to overwhelm the South and con-

quer it. Since at least the mid-2000s, that

has not been true.

External Contributions

e following external contributions are by authors independent from the Korea

Peace Now! campaign. eir expertise on human rights, nuclear weapons,

the US-ROK alliance, and the costs of war furthers the discussion of how a

peace agreement can resolve the security crisis on the Korean Peninsula. e

contributions represent the personal views of the authors. eir aliations are

for identifying purposes only and do not represent the views of those institutions

unless specied.

42 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

While North Korea does have a massive

land army and an impressive artillery and

missile force, it does not have the infra-

structure or suciently modern military

technology to have even a chance at con-

quering the South. To attempt it would be

suicidal – and hence its dictator, Kim Jong

Un, would not make such an attempt.

In fact, Kim is quite rational (if also

brutal), and his desire to live is exactly

what will restrain him from ever launch-

ing an unprovoked attack, as his grand-

father did in 1950. But Kim’s desire to

live – and his recognition of his relative

weakness in relation to South Korea and

the US – is what drove his father, Kim

Jong Il, to develop a deliverable nuclear

weapon.

Kim Il Sung, the rst dictator in North

Korea, accelerated his drive to get a nu-

clear weapon following the collapse of the

Soviet Union when he realized that with-

out the backing of the Russian military, he

was at the mercy of both China and the

United States. Kim Il Sung died in 1994;

his son continued the drive, nally testing

a warhead in 2006.

When Kim Jong Un took over in 2011,

following the death of his father, he ac-

celerated the nuclear program yet again,

and by late 2017 had allegedly succeeded

in developing an intercontinental ballistic

missile capable of carrying nuclear weap-

ons to the continental United States. He

did not do this to set the stage for an un-

provoked attack, as many in the West are

so eager to claim, but to more forcefully

deter Washington from trying to attempt

regime change against him. Kim wanted

to deter, not attack, the US.

When the policy of the Trump Ad-

ministration – at the earnest insistence of

former National Security Advisor John

Bolton – was to demand full denuclear-

ization before any sanctions could be re-

lieved against the Kim regime, we locked

ourselves into a situation in which tensions

will remain high and the risk of acciden-

tal war (or miscalculation leading to war)

remains high. at’s not a good policy, as

it has virtually no chance of succeeding.

We need, therefore, to make changes in

our approach and try something that has a

chance to accomplish valid US and South

Korean security objectives.

A good rst step would be to pur-

sue long-term denuclearization of the

Peninsula and seek short-term security

gains as initial steps. at would mean

opening the door to incremental, step-

by-step approaches that make reciprocal

action on both sides. Second, we should

support South Korea’s President Moon

Jae-in in his eorts to establish and ex-

pand ties with North Korea, work on

joint economic development between the

two countries, and negotiate an end-of-

war declaration with his neighbor to the

North. Anything that reduces the tensions

between the two countries and lessens

the chance of war is something we should

pursue.

e balance of power between the US–

Republic of Korea alliance and North

Korea is so strong toward the US side that

there is no genuine military or economic

competition. Kim likely does have a small

stockpile of nuclear weapons and does have

potent conventional forces, but it is not

a fraction of the power Washington and

Seoul can bring to bear in the event of war,

and Kim knows this better than anyone.

us, Kim is already successfully de-

terred and there would be no reason for

America to launch a war to attack him.

Our security is already guaranteed by our

standard nuclear and conventional forc-

es. e best course of action would be to

minimize friction and lower the tensions

between North and South Korea to pre-

serve the security of all.

Regardless of how much we all wish it

weren’t so, the fact is that Pyongyang has

nuclear weapons. No amount of coercion

or threats of preemptive war will compel

North Korea to give up its one power-

ful deterrent card. Trying to force that

outcome is to guarantee failure and keep

alive the risk of accidentally stumbling

into war.

e best way to ensure US security is

to facilitate reconciliation between South

and North Korea, reduce tensions so no

party feels threatened, and over time work

toward disarmament. Countries that are

making economic progress and improving

the lives of their people are the least likely

to ever start a war.

Daniel L. Davis is a Senior Fellow for Defense

Priorities and a former lieutenant colonel in the

U.S. Army who retired in 2015 after 21 years,

including four combat deployments. e views in

this article are those of the author only and do not

represent the opinions of any organization. Follow

him @DanielLDavis1.

Building a Durable

Peace with North Korea

By Adam Mount

policy debates on North Korea

sometimes suggest that there are

two irreconcilable options: pursue a peace

process that accommodates the regime as

a nuclear power or pursue a pressure policy

to disarm it. In fact, this dichotomy is mis-

leading. North Korea has acquired nuclear

weapons, is rapidly expanding its capabil-

ities, and has demonstrated the capability

and resolve necessary to resist economic

coercion. North Korean ocials have re-

peatedly stated their intention to retain and

expand their arsenal and have declined to

engage in consistent and detailed negotia-

tions on a nuclear agreement. e United

States cannot disarm Pyongyang cannot

be disarmed by applying pressure to force

it into a single, cathartic agreement.

335

In-

stead, the road to disarmament and a stable

Northeast Asia requires a protracted eort

to shape North Korea’s transformation and

to build a relationship capable of sustaining

a durable peace.

If the United States did commit to a

peace agreement at the June 2018 summit

in Singapore, it may in practice be a neces-

sary prerequisite to either a partial agree-

ment to shape the North Korean arsenal

or to other diplomatic agreements that can

shape North Korea’s internal evolution—

both of which would be in the US interest.

Conclusion of a peace agreement would not

undermine the legal or political justication

for a US–Republic of Korea deterrence pos-

ture. ough it may put political pressure on

certain elements of the alliance, these costs

are manageable given sucient eort on the

part of the South Korean government.

On the other hand, while a peace agree-

ment might reect and amplify diplomatic

momentum with North Korea, it is unlikely

that such an agreement would be su-

cient to build momentum where none now

exists.

336

Any agreement to constrain the

North Korean nuclear arsenal should be

concluded, implemented, and veried on the

basis of steps and incentives delineated in

the agreement itself rather than made con-

tingent on promises for peace or develop-

ment that Pyongyang is likely to doubt.

at having been said, there are signif-

icant benets to the United States and its

allies to adopting a more holistic approach

EXTERNAL CONTRIBUTIONS 43

to negotiations that resembles the Moon

administration’s concept of a peace regime

and might include a peace agreement.

e exclusive focus on nuclear disarma-

ment has not only failed to achieve its stated

objectives, it has also contributed to several

trends that harm the interests of the United

States and its allies over the long term.

337

In the vain hope of applying pressure that

could coerce Pyongyang to rapidly disarm,

the United States has constructed a porous

sanctions regime that has inhibited the

work of humanitarian organizations, pre-

vented the emergence of trading companies

not solely dependent on the regime, and

incentivized the regime to build a highly

sophisticated clandestine global procure-

ment network.

338

e United States and its

allies have virtually no inuence over the

internal evolution of North Korean society,

including human rights, marketization, agri-

cultural production, gender equality, and the

proliferation of consumer technologies. In

each of these areas, trends that could have

nudged North Korea toward greater person-

al freedom and welfare have instead been

exploited by the regime to expand its system

of internal control. Military displays intend-

ed to alarm and pressure the regime have

incentivized the expansion and diversica-

tion of that arsenal and may soon contribute

to the adoption of destabilizing command

and control procedures or the acquisition

of nonstrategic nuclear capabilities.

339

Ei-

ther by diverting attention and resources

away from these challenges or by actively

exacerbating negative trends, the exclusive

US focus on disarmament has harmed US

interests in these areas.

Like the artful rhetorical device of “denu-

clearization,” North Korea’s insistence that

the United States drop its “hostile policy” is

an elastic and imprecise demand that can be

used as a scapegoat to avoid negotiations in

perpetuity. Washington and Seoul cannot

meet the demand by oering to sign sym-

bolic agreements, issuing declaratory policy,

or unilaterally adjusting allied force posture

on the Peninsula.

Nuclear disarmament is now impossi-

ble without a broader eort to construct

a more equitable North Korea that has a

greater stake in regional stability through

engagement with it. rough controlled but

collaborative economic projects, reciprocal

conventional and nuclear arms control, and

concerted humanitarian eorts, it may be

possible over decades to build a relationship

with North Korea that could result in a deci-

sion to eliminate its nuclear arsenal.

340

How-

ever, because disarmament is now a long-

term objective that requires a broader eort

to transform our relationship with North

Korea, it cannot be accomplished with any

singular agreement in isolation from the rest

of North Korea policy, whether a coercive

disarmament agreement or a peace decla-

ration. An agreement to end the Korean

War is likely a necessary part of this broader

process and should be adopted in the man-

ner that can most eectively contribute to a

more peaceful and stable relationship.

Reticence toward transforming our

relationship with North Korea relies on

political incentives or the mistaken belief

that time is on our side. Time is not on our

side: each month that passes, we run a risk

of war, the North Korean arsenal expands,

and the regime solidies its control of the

market economy and information technolo-

gy. A more constructive eort to transform

our relationship with North Korea would

not constitute acceptance of that country as

a nuclear power any more than a series of

presidential summits has—and in any case

it is misguided to allow cosmetic concerns

about “acceptance” to stand in the way of

eective steps to reverse North Korea’s pos-

session of nuclear weapons.

341

e conve-

nient political ction that North Korea can

be disarmed by a presidential administration

or a sanctions package might sound inspir-

ing, but it is actively detrimental to US and

allied interests.

A nuclear-free peninsula requires a sus-

tained eort to build the conditions for

disarmament: a more equitable North Korea

and a relationship that can support a dura-

ble peace.

Adam Mount is a senior fellow and director of

the Defense Posture Project at the Federation

of American Scientists. He holds a Ph.D. in

government from Georgetown University.

North Korea: Human

Rights and a Peace Treaty

By Hazel Smith

he choice today is not between a per-

fect versus an imperfect policy; it is

between all the options that are realistical-

ly available. In these circumstances, a peace

treaty has a great deal of merit.

e pursuit of a peace treaty between the

United States and the Democratic Peo-

ple’s Republic of Korea (DPRK) provides a

concrete negotiating goal in the face of the

real-world alternatives of regime change or

continuing diplomatic paralysis. It would be

foolish to minimize the diculties of achiev-

ing an agreement, but the consequences, if

successful, would go far beyond the realm of

state security. e foreign investment that

would likely follow a peace treaty would pro-

vide jobs and lift millions of North Koreans

out of poverty. Another result would be to

reduce the power and reach of the state into

personal and social life and, in so doing, ex-

pand and legitimize the nonstate private and

civic sphere of decision-making and activity.

In turn, this would provide more permissive

conditions for North Koreans to challenge

state abuses and to generate and implement

alternative political projects for themselves.

A large number of human rights organi-

zations have reported human rights abuses

in North Korea, documenting deciencies

in political rights, such as the right to dis-

sent; civil rights, such as due process; and

social rights, such as the rights to health

and food. Criticisms of the political sys-

tem gain traction because of the opacity

of the North Korean state, which means

it is dicult to assess the scope, scale, and

representative nature of specic claims. Yet

the very lack of transparency and account-

ability of the North Korean government to

its own people, let alone to outsiders, gives

grounds in itself for a critique of the politi-

cal system. e lack of transparency leads to

worst-case-scenario speculation. ere are

grounds for skepticism of the most lurid ac-

counts and a need for critique of the factual

accuracy of some of the generalized claims

about government food and health policies,

but there is no question that individual

rights are subordinated to the interests of

the state and that brutal measures are rou-

tinely used to suppress dissent.

Important questions for international

human rights campaigners are these: What

can foreigners do? What should they do?

And what are the realistic options open to

external actors?

For many external interlocutors, the

primary aim of any deal with North Korea

should be to bring about political change

toward a rights-based polity, as opposed to

the current political structure, in which the

North Korean state possesses institution-

ally uncontested authority over its citizens.

44 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

Some see this objective as being possible

only if the regime is overthrown; they reject

any negotiation with the DPRK as appease-

ment. One problem with this approach is

that there is not much evidence that regime

change activities using force are successful.

ere are exceptions; Vietnam’s invasion of

Cambodia to unseat the Pol Pot regime and

the UK’s intervention in Sierra Leone in the

1990s were, arguably, both ethical and eec-

tive. Yet these really are the exceptions that

prove the rule. Afghanistan, Libya, Iraq, and

Yemen provide a more common outcome,

in which external intervention designed to

achieve regime change goals has ended with

ongoing conict and disastrous human con-

sequences in terms of the numbers of inno-

cents killed, raped, maimed, made orphans,

and displaced.

In my own view, a regime-change sce-

nario in North Korea would be unlikely to

bring about the changes desired by inter-

national campaigners because the military

intervention that would be required would

cause widespread devastation, including

possibly millions of casualties. While the

Kim family may well be overthrown in such

a scenario, the formation of a military gov-

ernment – perhaps with the appurtenance

of a democratic structure as in Myanmar –

would be as likely a result as absorption into

a democratic South Korea, the usually un-

stated goal of advocates for political change.

e alternative policy of doing noth-

ing – arguably, the current approach – has

consequences that are devastating for North

Korea’s population of 25 million. With an

average yearly income of less than $2,000,

North Koreans are some of the poorest

people in the world, according to authori-

ties ranging from the Central Intelligence

Agency to the World Bank. Without some

form of diplomatic initiative, the DPRK

will not likely abandon what it considers

its “nuclear deterrent.” UN sanctions on

the civilian economy, including the ban on

necessary imports for the agricultural sector,

have already caused massive losses in food

production. Levels of poverty as expressed

in child mortality, maternal mortality, de-

creasing life expectancy, disease prevalence,

and malnutrition will inevitably increase.

A peace treaty is a legally binding agree-

ment between two (or more) sovereign

states. Sovereignty is constituted by a legal

recognition of state supremacy over territory

and population at home and equality with

all other sovereign states. Sovereign equality

does not, of course, imply that states are equal

in power but because sovereignty provides

the foundational principle of international

law, unless the DPRK were vanquished in

war and its sovereignty forcibly extinguished,

a peace treaty could not include prescrip-

tive caveats about domestic aairs, including

human rights safeguards, unless the DPRK

agreed to their incorporation. Nevertheless,

the consequences of a peace treaty could be

transformational for North Koreans because

it would likely provide the necessary condi-

tions for the introduction of a rights-based

legal system to the DPRK.

In the wake of a treaty, foreign invest-

ment restrictions would likely be eased or

abandoned. Given the government’s active

pursuit of foreign investment, and the po-

tential for foreign investors in the min-

ing, mineral, communications, and tourism

sectors, there are reasons to anticipate that

foreign investors would have interest in

investing in the DPRK. South Korea, Chi-

na, and Russia have already declared likely

support for public infrastructure projects

like rail, roads, and bridges. Multilateral

organizations such as the World Bank and

the Asian Development Bank would also

be free to negotiate investment projects in

North Korea.

For the North Korean government to

attract the volume of investment for which

it hopes, it would need to provide a legally

acceptable operating environment for for-

eign investors in which contracts would be

secure from arbitrary interference from the

state. At a minimum, this would require the

legal institutionalization of a new system of

property rights, a functioning and transpar-

ent regulatory structure, and guarantees that

an independent rule of law would prevail in

disputes. Without these reforms, major for-

eign investors will stay away.

Legal changes would be transformational

for North Koreans in that for the rst time,

citizens would have civil, economic, proper-

ty, and social rights vis-à-vis the state. Such

changes may also mean the formal aboli-

tion of the North Korean equivalent of the

Chinese danwei system, in which the Party

– via workplace authorities, – must give

permission for many aspects of private life,

including marriage, travel, and educational

choices, and is the source of housing, food,

and employment allocation. As in China

since the 2000s, such change could bring

signicant improvements in personal free-

doms, even though they would not likely,

again as in China, entail the introduction of

liberal democratic political structures.

e DPRK government is aware that legal

and institutional reforms would be a quid pro

quo of substantial foreign investment. Over

the years, its ocials have had many discus-

sions with the Chinese government, NGOs

like the Singapore-based Choson Exchange

that engage in training of DPRK economic

ocials, and ocials from international orga-

nizations and foreign governments.

e institutionalization of a system where

business and individuals have rights against

the state would allow recognition of new

norms and practices, such as self-help and

the pursuit of the interests of the family

(compared to putting the state rst). ese

are already embedded in the behavior and

goals of North Koreans, particularly the

younger generations that did not grow up

in the Cold War days when the state really

did control all economic interactions, and

much else as well. ese new norms have

become prevalent in North Korean society

via the marketization that has sustained the

economy over the last 20 years, yet the state

so far still refuses to recognize these psycho-

logical and social changes that have trans-

formed the expectations and aspirations of

all North Koreans. Given an inow of for-

eign investment, millions of North Koreans

at home will encounter foreigners through

tourism and development projects. It will

be very dicult for the North Korean state

to maintain the political fantasy that North

Korean society has not already changed in

very fundamental ways.

Policy planning in respect to North Korea

has been paralyzed by a reluctance to accept

that we start from where we are rather than

where we would like to be, combined with

frustration that optimal outcomes cannot

realistically be achieved by the instruments

available. A peace treaty is more achievable

than regime-change options, precisely be-

cause of the narrowness of its scope and the

concrete nature of its aim. It is too ambitious

to argue that, of itself, a peace treaty between

the United States and the DPRK would

bring about all the various objectives sought

by human rights campaigners. Nevertheless,

the peace treaty proposal provides a concrete

response to the questions of what can and

should be done to improve the economic and

civil rights of North Koreans.

Hazel Smith Ph.D. FRSA is Professorial Research

Associate, School of Oriental and African Studies

EXTERNAL CONTRIBUTIONS 45

(SOAS), University of London; Professor emerita

of International Security, Craneld University,

UK; Fellow, Member, Global Future Council on

Korea, World Economic Forum. Her publications

include North Korea: Markets and Military

Rule (Cambridge University Press) and Hungry

for Peace: International Security, Humanitarian

Assistance, and Social Change in North Korea

(United States Institute of Peace).

A New U.S. Strategy for

the Korean Peninsula

By Jessica J. Lee

–South Korea relations have had

many ups and downs since the

two countries signed the Treaty of Peace,

Amity, Commerce and Navigation in 1882.

Bilateral relations have come under intense

strain in recent years due to President Don-

ald Trump’s transactional approach toward

cost sharing for US defense of South Korea.

As President Joe Biden takes oce, a stra-

tegic rethink on US–South Korea relations

must be a top priority. America needs a new

strategy toward the Korean Peninsula, one

that reects the American people’s desire

for a less militarized foreign policy and the

long-term need for the Korean people to

lead on Korean issues.

Ending the Korean War and Updating

the US–South Korea Alliance

Joe Biden has pledged to revitalize Ameri-

can alliances as part of his strategy to “lead

the world.”

342

In the case of the Korean

Peninsula, President Biden will inherit a

complex set of interconnected challenges,

from jumpstarting talks with nuclear-armed

North Korea to improving US–Republic of

Korea relations.

It is in America’s long-term interests to

create the conditions necessary for allies to

eventually provide for their own defense

rather than rely on the U.S. Armed Forces

indenitely. is was true even before the

COVID pandemic, but it is especially true

now as Americans reckon with inequities

stemming from chronic underinvestment

in domestic infrastructure while Pentagon

spending has grown. Poll after poll shows

that Americans want a more modest foreign

policy, one that prioritizes diplomacy over

military dominance and open-ended con-

icts.

343

A restrained foreign policy centered

on cooperation to combat transnational

threats and a denial-oriented defense strat-

egy that enhances allies’ ability to defend

themselves are needed to maintain a stable

Korean Peninsula.

344

As part of a broader strategy to reduce

the threat of a conict with North Korea

and strengthen South Korea’s position in

the region, President Biden should declare

the Korean War over and announce his in-

tention to sign a peace treaty, to be ratied

by the US Senate, formally ending the war.

e status quo, which relies on the 1953 Ar-

mistice Agreement to maintain peace on the

Peninsula, was never meant to be perma-

nent. Now that it is in its 70th year, Wash-

ington must nally help to end the Korean

War and restore the sovereignty of South

Korea, a prosperous and democratic country

that is capable of defending itself.

To get there, Washington, Seoul, and

Tokyo should discuss in specic terms what

ending the Korean War means for mutual

defense and long-term security interests in

East Asia. Such consultation should take

place before moving from an end-of-war

declaration to a peace treaty.

In the long run, a more stable Kore-

an Peninsula has the potential to bring

Japan and South Korea closer together.

As Narushige Michishita of the Nation-

al Graduate Institute for Policy Studies has

argued, peace on the Korean Peninsula could

present new opportunities for Japan and

South Korea to advance a peaceful East Asia

that serve both countries’ interests.

345

Japan’s

Prime Minister Yoshihide Suga’s pragmat-

ic outlook bodes well for strategic cooper-

ation in this area: “Japan and South Korea

are extremely important neighbors to each

other. In dealing with North Korea and oth-

er issues, I believe Japan-South Korea and

Japan-U.S. cooperation are crucial.”

346

To be sure, progress in ending the war

will depend on North Korea’s cooperation.

Any eort to build pressure for a precipitous

withdrawal of US troops from South Korea

will make progress with a political agree-

ment very dicult.

From the US perspective, ending the

Korean War and moving toward a less se-

curity-dependent South Korea has several

benets. First, it would reduce tensions on

the Korean Peninsula, which is good for

Americans, for Koreans, and for regional

stability. Declaring the Korean War over is

a cost-free way to signal US seriousness in

resolving the North Korea issue through

peaceful means and could induce North

Koreans to take positive steps to de-escalate

tensions on the Peninsula.

Second, it oers a chance to make more

progress on curbing North Korea’s nuclear

weapons program. As Dr. Chung-in Moon,

Special Advisor to the South Korean Pres-

ident, noted in a May 27, 2020, webinar

co-hosted by the Quincy Institute–East

Asia Foundation, establishing a “linkage

between gradual reduction of US troops and

denuclearization” could serve as “a bargain-

ing card” for faster denuclearization.

347

Finally, a militarized US policy on the

Korean Peninsula could heighten the al-

ready tense relationship between the United

States and China. In general, Washington

must resist conating its China strategy

with its Korea strategy. Middle powers in

Asia such as South Korea and New Zea-

land, for whom China is their largest trad-

ing partner, do not wish to take sides in a

Sino–US competition. Forcing US–South

Korea issues within the framework of con-

taining China is illogical, given the US need

for China’s cooperation on ending the Ko-

rean War and maintaining stability on the

Korean Peninsula.

Conclusion

e COVID-19 pandemic is a wake-up

call to those who think that primacy must

remain the goal of US foreign policy toward

East Asia. It must not. e COVID pan-

demic is a salient reminder of the increas-

ing need for global cooperation on a host of

issues aecting people’s lives. As Congress-

man Ami Bera noted, this includes a careful

examination of US–South Korea relations:

“e next 75 years may be dierent than the

past. World War II was the last time when

the entire planet was aected by something.

South Korea is not a developing nation. It’s

a top nation in the world and a partner. So

what will our alliance look like in the fu-

ture?”

348

American strategists need to embrace

change rather than fall into the comforts

of old ways of thinking. e United States

played a vital role in stopping South Korea

from becoming part of the North 70 years

ago. It is time for the United States to make

room for the Korean people to shape their

own future.

Jessica J. Lee is a Senior Research Fellow on East

Asia at the Quincy Institute for Responsible

Statecraft.

46 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

CHAPTER I

1 Still, North Korea’s nuclear arsenal

represents just a tiny fraction – less than

1 percent – of the United States’ nuclear

stockpile. “Nuclear Weapons: Who Has

What,” Arms Control Association, last

modiﬁed August 2020, https://www.

armscontrol.org/factsheets/Nuclearweap-

onswhohaswhat; Hans Christensen and

Robert S. Norris, “North Korean Nuclear

Capabilities, 2018,” Bulletin of the Atomic

Scientists 74, no. 1 (January 2, 2018).

2 James Hohmann, “U.S. Came ‘Much Closer’

to War with North Korea in 2017 than the

Public Knew, Trump Told Woodward,”

Washington Post, September 16, 2020.

3 Donald Trump, “Remarks by Pres-

ident Trump to the 72nd Session

of the United Nations General As-

sembly,” September 19, 2017.

4 Statement by Ambassador Ri Yong-Ho

at the 72nd session of the UN Gen-

eral Assembly, September 23, 2017,

https://gadebate.un.org/en/72/dem-

ocratic-peoples-republic-korea.

5 Inter-Korean Panmunjom Declaration

on Peace, Prosperity and Reuniﬁcation of

the Korean Peninsula, April 27, 2018, para.

3.3. (“The two sides agreed to … actively

promote the holding of trilateral meetings

involving the two sides and the United

States, or quadrilateral meetings involving

the two sides, the United States and China

with a view to replacing the Armistice

Agreement with a peace agreement.”)

6 Joint Statement of President Donald J.

Trump of the United States of Ameri-

ca and Chairman Kim Jong Un of the

Democratic People’s Republic of Korea

at the Singapore Summit, June 12, 2018.

7 Lesley Wroughton and David Brunnstrom,

“Exclusive: With a Piece of Paper, Trump

Called on Kim to Hand over Nuclear Weap-

ons,” Reuters, March 29, 2019. White House,

Remarks by President Trump in press con-

ference, Hanoi, Vietnam, February 28, 2019.

8 David Brunnstrom, “Getting North Korea

to Give up Nuclear Bomb Probably ‘Lost

Cause’: U.S. Spy Chief,” Reuters, Oc-

tober 25, 2016; “North Korea Unlikely

to Give up Nuclear Weapons: U.S. Spy

Chief Coats,” Reuters, January 29, 2019.

9 “Report of the Fifth Plenary Meet-

ing of the 7th Central Committee of

the WPK,” KCNA, January 1, 2020.

10 “Women’s Participation in Peace Process-

es,” Council on Foreign Relations, accessed

November 22, 2020, https://www.cfr.org/

womens-participation-in-peace-processes.

11 “WPS Implementation,” Women’s Inter-

national League for Peace and Freedom,

accessed November 22, 2020, https://

www.peacewomen.org/member-states.

12 For reports analyzing the implications of a

peace agreement outside the context of a

policy proposal, see, e.g., Emma Chan-

lett-Avery et al., A Peace Treaty with North

Korea?, Congressional Research Service,

April 19, 2018; Kyung-ok Do, The Peace

Agreement on the Korean Peninsula: Legal

Issues and Challenges, Korea Institute

for National Uniﬁcation, August 2020.

13 See, e.g., Duyeon Kim, Negotiating Toward

a Denuclearization-Peace Roadmap

on the Korean Peninsula, Center for a

New American Security, June 27, 2019.

14 Bradley Bowman and David Maxwell,

Maximum Pressure 2.0: A Plan for North

Korea, Foundation for Defense of Democ-

racies, 2019 (calling for increased pressure

to achieve what the implementation of

“maximum pressure” did not); Jung H.

Pak, Becoming Kim Jong Un: A Former

CIA Ofﬁcer’s Insights into North Korea’s

Enigmatic Young Dictator (New York:

Ballantine Books, 2020) (a personalist

analysis of the conﬂict, arguing that the

central question is to “alter [North Korean

leader Kim Jong Un’s] calculus in a way

that compels him to believe that nuclear

weapons are a greater threat to his rule

and dynastic preservation than an asset”).

15 Adam Mount et al., Report of the Interna-

tional Study Group on North Korea Policy,

Federation of American Scientists, 2019

(making the case that “an exclusive pursuit

of disarmament will come at the cost of

efforts to manage other critical interests,

including the risks of conventional war,

ballistic missile proliferation, contagion

of infectious disease, and the continued

suffering and repression of the North

Korean people”); Henri Féron et al., The

Human Costs and Gendered Impact of

Sanctions on North Korea, Korea Peace

Now!, October 2019, https://koreapeace-

now.org/wp-content/uploads/2019/10/

human-costs-and-gendered-impact-of-

sanctions-on-north-korea.pdf (a Korea

Peace Now!–commissioned report synthe-

sizing the publicly available information

and reports on humanitarian and human

rights consequences of sanctions for the

North Korean people); Van Jackson, On

the Brink: Trump, Kim, and the Threat

of Nuclear War (Cambridge University

Press, 2019) (arguing that “maximum

pressure” brought the world much closer

to nuclear war than generally recognized);

Ankit Panda, Kim Jong Un and the Bomb:

Survival and Deterrence in North Korea

(Oxford University Press, 2020) (“North

Korea’s success with its own nucleariza-

tion has forced the world into an unsavory

– if gradual – process of recognizing that

coexistence will in all likelihood be the

only plausible path going forward.”); Toby

Dalton, “On North Korea, the Day After,”

Carnegie Endowment for International

Peace, September 9, 2020 (“North Korea’s

nuclear weapons are a fait accompli ….

Neither unilateral disarmament nor

military confrontation is a viable U.S.

policy approach, and maximum economic

pressure will not change Kim’s calculus.”).

16 A selection of the vast literature on the

topic might include Morton Halperin et

al., “Ending the North Korean Nuclear

Threat by a Comprehensive Security

Settlement in Northeast Asia,” NAPSNet

Policy Forum, June 26, 2017; Sung-Yoon

Chung et al., Peace Regime of the Korean

Peninsula and North Korean Policy,

Korea Institute for National Uniﬁcation,

Endnotes

ENDNOTES 47

2018; James Goodby et al., A Framework

for Peace and Security in Korea and

Northeast Asia, Atlantic Council, 2007.

17 A similar emphasis on peace ﬁrst was ad-

vanced in a policy proposal from a Sejong

Institute–RECNA workshop including 26

experts: Peter Hayes et al., From Peace

on the Korean Peninsula to a North-

east Asia Nuclear Weapons Free Zone,

Sejong Institute and Nagasaki University

Research Center for Nuclear Weapons

Abolition, September 18, 2019, http://nau-

tilus.org/wp-content/uploads/2019/09/

Policy-Proposal-Peace-Korea-NEA-NW-

FZ-Sejong-RECNA-Sep18-2019.pdf (“One

of the most important initial steps is to

declare and conclude a ﬁnal Korean War

peace settlement. Conclusion of such

an agreement would pave the way for a

raft of measures to reduce, defuse, and

eventually eliminate high-risk forms of

military deployment and confrontation,

particularly in and close to the DMZ.”).

18 See Bruce Cumings, The Korean War:

A History (Modern Library, 2010), 35

(“Various encyclopedias state that the

countries involved in the three-year

conﬂict suffered a total of more than 4

million casualties, of which at least 2

million were civilians—a higher percent-

age than in World War II or Vietnam. A

total of 36,940 Americans lost their lives in

the Korean theater; of these, 33,665 were

killed in action, while 3,275 died there of

nonhostile causes. Some 92,134 Americans

were wounded in action, and decades

later, 8,176 were still reported as missing.

South Korea sustained 1,312,836 casualties,

including 415,004 dead. Casualties among

other UN allies totaled 16,532, including

3,094 dead. Estimated North Korean

casualties numbered 2 million, including

about one million civilians and 520,000

soldiers. An estimated 900,000 Chinese

soldiers lost their lives in combat.”)

19 Korean War Armistice Agree-

ment, July 27, 1953.

20 Inter-Korean Joint Communique of July

4, 1972; Inter-Korean Joint Declaration,

June 15, 2000; Inter-Korean Joint Dec-

laration, October 4, 2007; Inter-Korean

Panmunjom Declaration on Peace, Pros-

perity and Reuniﬁcation of the Korean

Peninsula, April 27, 2018; Inter-Korean

Pyongyang Joint Declaration, Septem-

ber 19, 2018; Inter-Korean Agreement

on the Implementation of the Historic

Panmunjom Declaration in the Military

Domain, September 19, 2018. On economic

agreements, see also Seong-ho Jhe, “Four

Major Agreements on Inter-Korean Eco-

nomic Cooperation and Legal Measures

for their Implementation,” Journal of

Korean Law 5, no. 1 (2005), 126–144.

21 The United States, while recognizing that

ending the Korean War would be in the na-

tional interest, has conditioned this step on

the prior denuclearization of North Korea.

Meanwhile, North Korea has insisted that

it will continue developing its armament

until peace is made. White House Ofﬁce

of the Press Secretary, “President Bush

Meets with South Korean President Roh,”

September 7, 2007 (Bush: “it’s up to Kim

Jong-il as to whether or not we’re able

to sign a peace treaty to end the Korean

War. He’s got to get rid of his weapons

in a veriﬁable fashion.”); “U.S. Rejected

North Korea Peace Talks Offer Before Last

Nuclear Test,” Reuters, February 21, 2016;

WomenCrossDMZ, “Peace Agreement

with North Korea Is in ‘US Interest,’ Says

US Under Secretary of Defense for Policy,”

January 28, 2020; “Report of the Fifth Ple-

nary Meeting of the 7th Central Commit-

tee of the WPK,” KCNA, January 1, 2020.

22 U.S.–ROK Joint Communique of

the 50th Security Consultative

Meeting, Oct. 31, 2018, para. 4.

23 See, e.g., Sung-Yoon Lee, “Dear America:

Don’t Fall for Pyongyang’s Predictable,

Poisonous Ploy,” The Hill, January 4, 2018.

24 Political scientist Van Jackson lists these

three possibilities in his analysis of the

2017 “ﬁre and fury” escalation, in which

he argues we were much closer to combat

than commonly appreciated. First, he

notes that a number of constituencies

within the US foreign policy community

were making a case for not just preventive

strikes against North Korea, but preven-

tive war. Second, he highlights how both

sides have become accustomed to talking

and acting as if they could enhance deter-

rence through deliberate friction and pres-

ents the much-discussed consideration

of conducting a limited, “bloody nose”

strike against North Korea as an extension

of this logic and “a recipe for inadvertent

war.” Third, Jackson identiﬁes a series of

12 events or signals that could have been

misinterpreted as combat preparations

and led to a “false-positive war,” such as

North Korea’s placement of two ICBMs on

mobile missile launchers, reports that the

United States was planning a noncomba-

tant evacuation operation, or the massive

deployment of troops in the Valiant Shield

and Vigilant Ace military exercises. Van

Jackson, On the Brink: Trump, Kim, and

the Threat of Nuclear War (Cambridge

University Press, 2019), 193–209.

25 Cumings, The Korean War, 35.

26 Central Intelligence Agency, Intelligence

Memorandum: Population and Manpower

of Korea 1954, CIA/RR IM-396, Sep-

tember 13, 1954 (“The most recent ﬁrm

estimate of the population of Korea is for

1949, when the total population of 29.3

million included 9.1 million north of the

38th parallel, and 20.2 million, south.”).

27 Kathleen J. McInnis et al., The North Ko-

rean Nuclear Challenge: Military Options

and Issues for Congress, Congressional

Research Service, November 6, 2017, 18–21.

28 “Defense Budget Trend,” ROK Min-

istry of National Defense database (in

Korean), accessed November 22, 2020,

https://mnd.go.kr/mbshome/mbs/mnd/

subview.jsp?id=mnd_010401020000.

29 Still, North Korea’s nuclear arsenal

represents a small fraction – less than

1 percent – of the United States’ nucle-

ar stockpile. “Nuclear Weapons: Who

Has What at a Glance,” Arms Control

Association, accessed November 11,

2020, https://www.armscontrol.org/

factsheets/Nuclearweaponswhohaswhat.

30 “Missiles of South Korea,” Centre for

Strategic & International Studies, accessed

Nov. 4, 2020, https://missilethreat.csis.

org/country_tax/south-korea/; Choe

Sang-hun, “South Korea Plans ‘Decapita-

tion Unit’ to Try to Scare North’s Leaders,”

New York Times, September 12, 2017.

31 The United States accounts for 38 percent

of global military spending. Nan Tian

et al., Trends in World Military Expen-

diture, 2019, Stockholm International

Peace Research Institute, April 2020.

32 Choe Sang-hun, “In Show of Alliance,

American Forces Fly B-52 Bomber over

South Korea,” New York Times, January

10, 2016; Kevin Baron, “What Is Foal

Eagle?” Foreign Policy, April 4, 2013;

William McKinney, “Ending US-ROK

Military Exercises: An Idea Whose Time

Has Come,” 38 North, June 13, 2018.

33 See, e.g., “North Korea Warns of Retali-

ation Against U.S.-South Korea Military

Drills,” Reuters, November 13, 2019.

34 Ahn Sung Kyoo, Choi Kang, and Eun

Yul Kweon, “Implications of China’s

Ballistic Missiles for Korean Nation-

al Security,” Asan Institute for Pol-

icy Studies, November 10, 2015.

35 Pieter D. Wezeman et al., Trends in

International Arms Transfers, 2019,

Stockholm International Peace Re-

search Institute, March 2020.

36 See, e.g., Bruce E. Bechtol Jr., North

Korean Military Proliferation in

the Middle East and Africa (Ken-

tucky University Press, 2018).

37 Reports by the UN Panel of Experts

responsible for monitoring sanctions

implementation systematically note North

Korea’s sophisticated sanctions evasion

methods. See, e.g., Report of the Panel of

Experts established pursuant to resolu-

tion 1874, S/2020/151, March 2, 2020. See

also Bruce E. Bechtol Jr., “North Korean

Illicit Activities and Sanctions: A National

Security Dilemma,” Cornell International

Law Journal 51, no. 1 (Winter 2018), 57–99.

38 Féron et al., The Human Costs and Gen-

dered Impact of Sanctions on North Korea.

39 The ideal of economic self-reliance has

remained central to North Korea’s state

ideology of Juche at least since a 1965

speech on the subject by state founder

Kim Il Sung. While North Korea obtained

signiﬁcant aid from socialist bloc countries

during its post-war reconstruction and

while it never really attained complete

economic independence, it has still

arguably evolved over the decades into

one of the most self-contained industri-

alized economies in the world. Kim Il

Sung, “On Socialist Construction in the

Democratic People’s Republic of Korea

and the South Korean Revolution,” April

14, 1965; Kim Jong Il, On the Juche Idea

(Pyongyang: Foreign Languages Publish-

ing House, 1982); Charles K. Armstrong,

“The Destruction and Reconstruction of

48 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

North Korea, 1950–1960,” The Asia-Pa-

ciﬁc Journal: Japan Focus 7 (March

16, 2009); Charles K. Armstrong, The

North Korean Revolution 1945–1950

(Cornell University Press, 2003), 245.

40 Féron et al., The Human Costs and Gen-

dered Impact of Sanctions on North Ko-

rea, 4–5, 14–18. For UNSC sanction sourc-

es, see UNSC Resolution 1718, S/RES/1718,

October 14, 2006; UNSC Resolution 1874,

S/RES/1874, June 12, 2009; UNSC Resolu-

tion 2087, S/RES/2087, January 22, 2013;

UNSC Resolution 2094, S/RES/2094,

March 7, 2013; UNSC Resolution 2270, S/

RES/2270, March 2, 2016; UNSC Reso-

lution 2321, S/RES/2321, November 30,

2016; UNSC Resolution 2371, S?RES/2371,

August 5, 2017; UNSC Resolution 2375,

S/RES/2375, September 11, 2017; UNSC

Resolution 2397, S/RES/2397, December

22, 2017. For US sanctions, see Congres-

sional Research Service, North Korea:

Legislative Basis for U.S. Economic Sanc-

tions, R41438, updated March 9, 2020.

41 Amnesty International, The National

Security Law: Curtailing Freedom of

Expression and Association in the Name

of Security in the Republic of Korea, 2012;

UN Human Rights Committee, Conclud-

ing Observations on the Fourth Periodic

Report of the Republic of Korea, CCPR/C/

KOR/CO/4, para. 48–51, December 3,

2015 (“The Committee … reminds the

State party that the Covenant does not

permit restrictions on the expression of

ideas merely because they coincide with

those held by an enemy entity or may be

considered to create empathy for that

entity. The State party should abrogate art.

7 of the National Security Act”); Sukjong

Hong, “Court Dissolution of Left-Wing

Party in South Korea Raises Alarm,”

Al Jazeera, January 15, 2015; Sang-hun

Choe, “Former South Korean Spy Chief

Sentenced for Trying to Sway Election,”

New York Times, August 30, 2017.

42 According to the seminal treatises on war

and peace of the jurist Lassa Oppenheim,

“the chief and general effect of a peace

treaty is restoration of the condition of

peace between the former belligerents.”

Oppenheim, International Law, para.

272. See also U.S. Department of Defense,

Law of War Manual, June 2015 (updated

December 2016), 94 (“hostilities may be

terminated by … an agreement to end

hostilities, normally in the form of a treaty

of peace”). The Vienna Convention on

the Law of Treaties deﬁnes a “treaty” as

“an international agreement concluded

between States in written form and gov-

erned by international law.” (art. 2(1)a).

43 Oppenheim, International Law, para.

231 (“[Armistices] are in no wise to be

compared with peace, and ought not to

be called temporary peace, because the

condition of war remains between the bel-

ligerents themselves, and between the bel-

ligerents and neutrals on all points beyond

the mere cessation of hostilities.”); U.S.

Department of Defense, Law of War Man-

ual, 864 (“An armistice is not a partial or a

temporary peace; it is only the suspension

of military operations to the extent agreed

upon by the parties to the conﬂict. War as

a legal state of hostilities between parties

may continue, despite the conclusion of an

armistice agreement” [citations omitted]).

44 How to best achieve a peace regime

is outside the scope of this report. See

the Introduction for a bibliography

of models and see Recommendations

for proposed guiding principles.

45 Joint Statement of the Fourth Round

of the Six-Party Talks, September 19,

2005, para. 4; Inter-Korean Panmun-

jom Declaration on Peace, Prosperity

and Reuniﬁcation of the Korean Penin-

sula, April 27, 2018, para. 3; Singapore

Declaration, June 12, 2018, para. 2.

46 There are different interpretations of the

legal signiﬁcance of the long-standing

cessation of large-scale active combat in

Korea. Some scholars have argued that

this cessation ushered in a tacit state of

peace over the years. Others argue that the

state of war persists, given the continuing

heavy militarization and military tensions

on the Korean Peninsula and calls by the

two Koreas and UN organs to replace

the Armistice with a peace agreement.

Insofar as a state of war may arise based

solely on intention as opposed to actual

use of force, for instance in the case of a

declaration of war, the absence of active

combat is not per se conclusive evidence

that a state of war has ended. All sides

have, even relatively recently, threatened

use of force in ways that appear difﬁcult

to reconcile with peacetime rules. The

uncertainties this raises have themselves

fueled the intense military tensions on

the Korean Peninsula. Patrick Norton,

“Ending the Korean Armistice Agree-

ment: The Legal Issues,” NAPSNet Policy

Forum, March 1997 (estimating that “most

authorities have concluded that … the

Korean War … still continues as a legal

matter.”); Korean War Armistice Agree-

ment, July 27, 1953, Preamble and art. 60;

UN General Assembly Resolution 3390A,

para. 2, 3390B, para. 2, November 18, 1975;

Inter-Korean Basic Agreement of 1991, art.

5; UN Security Council President State-

ment S/PRST/1996/42, October 15, 1996;

Inter-Korean Panmunjom Declaration

on Peace, Prosperity and Reuniﬁcation of

the Korean Peninsula, April 27, 2018, para.

3. See also U.S. Department of Defense,

Law of War Manual, 94 (“Hostilities end

when opposing parties decide to end

hostilities and actually do so, i.e., when

neither the intent-based nor act-based

tests for when hostilities exist are met.”);

see also McInnis et al., The North Korean

Nuclear Challenge, 17 (“while the United

Nations has stated that the armistice

agreement still serves as the basis and

starting point for permanent peace on the

Korean Peninsula, it may be difﬁcult to

argue that it still serves as the controlling

source of international law and authority

with regard to all uses of military force.”).

47 Inter-Korean Panmunjom Declaration

on Peace, Prosperity and Reuniﬁcation of

the Korean Peninsula, April 27, 2018, para.

3.3 (“The two sides agreed to … actively

promote the holding of trilateral meetings

involving the two sides and the United

States, or quadrilateral meetings involving

the two sides, the United States and China

with a view to replacing the Armistice

Agreement with a peace agreement.”).

48 The UN Charter, in an effort to outlaw

aggressive war and ensure that states

resolve disputes peacefully, requires all

members to “refrain in their international

relations from the threat or use of force

against the territorial integrity or political

independence of any state, or any other

manner inconsistent with the purposes of

the United Nations.” (art. 2(4)). The prin-

ciple of nonuse of force in international

relations has been further developed

under customary international law, no-

tably prohibiting wars of aggression, and

the use or threat of force in violation of

existing frontiers or of the right of peoples

to self-determination or independence,

among others. The only widely recognized

exceptions to these strict rules are cases

of self-defense or legitimate Security

Council authorizations, although these

exceptions themselves remain subject to

certain limitations. See also UN General

Assembly Resolution 2625 (XXV), October

24, 1970; Military and Paramilitary Activ-

ities in and against Nicaragua (Nicaragua

v. United States of America), Merits,

Judgment, I.C.J. Reports 1986, paras.

174–175, 188–195; UN General Assembly

Resolution 42/22, November 18, 1987.

49 See, generally, Jean-Marie Henckaerts

and Louise Doswald-Beck, Customary

International Humanitarian Law, Vol.

I: Rules, International Committee of

the Red Cross (Cambridge University

Press, 2005); see also U.S. Department of

Defense, Law of War Manual, 9–10, 14–15.

50 There have been skirmishes over

the years, particularly surrounding

a disputed maritime boundary. See,

e.g., Sang-hun Choe, “Korean Navies

Skirmish in Disputed Water,” New

York Times, November 10, 2009.

51 An agreement may be binding under

international law regardless of its title,

meaning even an instrument entitled

“Declaration to End the Korean War” can

potentially be binding. One example is

the USSR–Japan “Joint Declaration” of

October 19, 1956, which despite its title

bindingly normalized relations between

the two countries because they signaled

their consent to be bound. The Vienna

Convention on the Law of Treaties deﬁnes

a treaty as “an international agreement

concluded between States in written

form and governed by international law,

whether embodied in a single instrument

or in two or more related instruments

and whatever its particular designation”

(art. 1(a)). See Annex I for a review of how

a peace agreement would work within

each party’s domestic legal system.

52 Oppenheim, International Law, para. 272

(“As soon as the [peace] treaty is ratiﬁed,

all rights and duties which exist in time

of peace between the members of the

family of nations are ipso facto and at once

revived between the former belligerents

… all acts legitimate in warfare cease to

be legitimate.”) See also U.S. Department

of Defense, Law of War Manual, 94–96.

53 Oppenheim, International Law, para. 272

(“Attention must be drawn to the fact

that the condition of peace created by

a peace treaty is legally ﬁnal in so far as

the order of things set up and stipulated

ENDNOTES 49

by the treaty of peace is the settled basis

of future relations between the parties

…. They may indeed make war against

each other in future on other grounds,

but they are legally bound not to go to

war over such matters as have been

settled by a previous treaty of peace.”).

54 This has been a key dispute in UNSC

resolutions that require North Korea to

unilaterally give up its nuclear weapons.

Unsurprisingly, North Korea sees in

these resolutions the United States being

a judge in its own cause. The ﬁrst step

in resolving the conﬂict should be an

agreement directly involving the United

States and the two Koreas. Chapter II

addresses the potential implications

of such an agreement on denuclear-

ization. Statement by Ambassador Ri

Yong-Ho at the 72nd session of the UN

General Assembly, September 23, 2017.

55 Inter-Korean Panmunjom Declaration

on Peace, Prosperity and Reuniﬁcation of

the Korean Peninsula, April 27, 2018, para.

3.3. (“The two sides agreed to declare the

end of war this year that marks the 65th

anniversary of the Armistice Agreement

and actively promote the holding of

trilateral meetings involving the two sides

and the United States, or quadrilateral

meetings involving the two sides, the

United States and China with a view to

replacing the Armistice Agreement with

a peace agreement and establishing a

permanent and solid peace regime.”)

56 Chi-dong Lee, “Moon Proposes

Declaring End to Korean War, Re-

quests UN’s Support,” Yonhap News

Agency, September 23, 2020.

57 Determining the intent of the parties

requires weighing all relevant evidence. If

one of the parties explicitly characterizes

the end-of-war declaration during nego-

tiations as a “nonbinding” or “political”

declaration, this would clearly weigh

against a conclusion that the declaration

binds that party. Note, for instance, that

the United States considered even the

Agreed Framework nonbinding. Note

also the criteria on the basis of which the

U.S. Government Accountability Ofﬁce

ultimately found the Agreed Framework

of 1994 to be nonbinding: language, tone,

form, subsequent actions of the parties,

and inclusion or omission of provisions

that would “normally” be included in a

binding agreement, “such as provisions

on the process for amending the agree-

ment and for resolving disputes.” Aegean

Sea Continental Shelf, Judgment, I.C.J.

Reports 1978, para. 96 (“[the Court] knows

of no rule of international law which

might preclude a joint communique from

constituting an international agreement

to submit a dispute to arbitration or set-

tlement (cf. Arts. 2, 3, and 11 of the Vienna

Convention on the Law of Treaties)”);

see also Third US Restatement of Foreign

Relations Law, Washington 1987, Vol. I,

149, as cited by Malcolm Shaw, Interna-

tional Law, 7th ed. (Cambridge University

Press, 2014), 656 (“There are no speciﬁc

requirements of form in international law

for the existence of a treaty, although it is

essential that the parties intend to create

legal relations as between themselves by

means of their agreement.”); U.S. General

Accountability Ofﬁce, Nuclear Prolifera-

tion: Implications of the U.S./North Ko-

rean Agreement on Nuclear Issues, GAO/

RCED/NSIAD-97-8, October 1996, 7–10.

58 An end-of-war declaration intended to be

binding and to legally terminate the state

of war would arguably qualify as fulﬁlling

the constitutive elements of a peace agree-

ment. The distinction made in the Pan-

munjom agreement of 2018 between end-

of-war declaration and peace agreement

may nevertheless weigh against such a

ﬁnding. What will be determining to quali-

fy an end-of-war declaration as a peace

agreement is whether it was intended to

constitute a ﬁnal settlement of the war. See

Oppenheim, International Law, para. 272.

59 It should be noted that an end-of-war

declaration could be made unilaterally

by one side, such as when Congress uni-

laterally declared the end of World War I

with Germany through the Knox-Porter

resolution of 1921. However, a unilateral

declaration cannot per se end the legal

state of war as it does not evidence the

intent of the other side. Andrew Glass,

“Knox-Porter Resolution Advances,

June 30, 1921,” Politico, June 30, 2018.

60 An end-of-war declaration that fails to

qualify as a binding peace agreement can

still be legally relevant as evidence for

an implicit peace. Peace may in certain

cases be restored implicitly through

a cessation of hostilities. Oppenheim,

International Law, para. 262 (“Although

such termination of war through simple

cessation of hostilities is for many reasons

inconvenient, and is, therefore, as a rule

avoided, it may nevertheless in the future

as in the past occasionally occur.”).

61 This highlights why a clearly binding

peace agreement is the best path forward:

the more certainty between the parties

regarding the extent to which either side

reserves the right to use force, the better.

North Korean commentary has welcomed

the concept of an end-of-war declaration,

questioned its tangible security value, and

denounced its instrumentalization as a

“bargaining chip” for denuclearization.

DPRK Ministry of Foreign Affairs, “DPRK

Foreign Ministry Roving Ambassador

Issues Statement,” November 14, 2019

(“If the U.S., failing to put forth a basic

solution for lifting the anti-DPRK hostile

policy harmful to our rights to existence

and development, thinks that it can lead us

to negotiations with war-end declaration,

which may reduce to a dead document any

moment with change of situation, and with

other matters of secondary importance

like the establishment of a liaison ofﬁce,

there is no possibility of the settlement

of the issues.”). Compare with earlier

commentary, Thaek Bom Jo, “War-end

Declaration on Korean Peninsula is De-

mand of Times,” Rodong Sinmun, August

10, 2018 (“If the military confrontation

between the DPRK and the U.S. comes to a

close with the publication of the war-end

declaration, an atmosphere favorable for

conﬁdence-building will be provided”);

“War End Is Not Just Gift: KCNA Com-

mentary,” KCNA, October 2, 2018 (“The

issue of the war-end declaration should

have been resolved half a century ago … it

can never be a bargaining chip for getting

the DPRK denuclearized … if the U.S.

doesn’t want the end of war, the DPRK

will also not particularly hope for it”).

62 UN Charter, arts. 2(3) and 2(4).

63 See, e.g., the Israel–United Arab Emirates

Treaty of Peace, Diplomatic Relations and

Full Normalization of September 15, 2020,

art. 4 (“[Both parties] undertake to take

the necessary steps to prevent any terror-

ist or hostile activities against each other

on or from their respective territories”).

64 Korean War Armistice Agree-

ment, art. II, para. 12.

65 Inter-Korean Agreement on Reconcilia-

tion, Non-aggression and Exchanges and

Cooperation, December 13, 1991, art. 9.

66 Joint Statement of the Fourth

Round of the Six-Party Talks,

September 19, 2005, art. 1.

67 U.S.-DPRK Joint Statement,

June 12, 2018, Preamble.

68 “DPRK FM Ri Yong Ho Disputes

Trump Reason for Summit Col-

lapse,” CGTN, February 28, 2019.

69 See, e.g., Terence Roehrig, “Korean

Dispute over the Northern Limit Line:

Security, Economics, or International

Law?” University of Maryland Contem-

porary Asian Studies Series 2008, no.

3 (2008), 1; Sang-hun Choe, “Korean

Navies Skirmish in Disputed Water.”

70 Inter-Korean Agreement on the Im-

plementation of the Historic Pan-

munjom Declaration in the Military

Domain, September 19, 2018.

71 U.S.-DPRK Joint Statement,

June 12, 2018, art. 1.

72 Vienna Convention on Diplomatic

Relations, April 18, 1961, arts. 2 (“The

establishment of diplomatic relations

between States, and of permanent dip-

lomatic missions, takes place by mutual

consent.”) and 4(1) (“The receiving State

is not obliged to give reasons to the

sending State for a refusal of agrément.”).

73 Military and Paramilitary Activities

in and against Nicaragua (Nicaragua

v. United States of America), Mer-

its, Judgment, I.C.J. Reports 1986.

74 Agreement on Ending the War and

Restoring Peace in Viet-Nam, January

27, 1973; Bill Clinton, Remarks Announc-

ing the Normalization of Diplomatic

Relations with Vietnam, July 11, 1995.

75 The normalization of relations between

China and, respectively, the United States

and South Korea, is often assumed to have

ended any state of war that might have ex-

isted by virtue of combat with the Chinese

People’s Volunteers during the Korean

War (see next section, “Parties to a Peace

Agreement”). There have, however, been

cases in which normalization agreements

did not per se constitute a ﬁnal settlement

to a war. One example is the establishment

of Ambassadorial-level relations between

the Allies and the two Germanies during

50 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

the Cold War, even though all these parties

did not conclude a ﬁnal settlement of

World War II until 1991. Another example

is the USSR–Japan Joint Declaration of

1956, which, although it declared the end

of the state of war and the normalization

of relations, explicitly stated that a future

agreement should serve as ﬁnal settlement

of the war. Such a departure from the

principle that a state of war must end with

a ﬁnal settlement nevertheless introduces

uncertainty and insecurity into the nature

of the relationship between the parties

pending conclusion of the ﬁnal settlement.

Russia and Japan are still today seeking a

peace agreement to end World War II as

between themselves, notably to settle their

territorial dispute regarding the Kuriles/

Northern Territories. See, e.g., “Russia

Presents Peace Treaty Concept to Japan,

No Response Yet,” TASS, July 10, 2020.

76 Whether peace is concluded in a single

multilateral agreement or multiple

bilateral ones may affect the ratiﬁcation

procedure in South Korea (see Annex I).

77 The other parties could be belligerents or

nonbelligerents. While a peace agree-

ment is typically concluded only between

belligerents, it may include clauses that

concern nonbelligerents, which would

speak for their inclusion. In that case,

the clauses ending the state of war would

simply be redundant for nonbelligerents.

78 For a review of implications of a peace

agreement for the United States, from

the perspective of the Congressional

Research Service, see Chanlett-Avery et

al., A Peace Treaty with North Korea?

79 The ambiguity that persists today on

US use of force in Korea is reﬂected, for

instance, in a 2017 Congressional Research

Service report on military options against

North Korea. The report suggests on

the one hand that “it can be argued that

[UN Security Council resolutions 82 to

84] would no longer authorize any use

of military force against North Korea

unless North Korean forces again crossed

into South Korea.” On the other hand,

the report explicitly raises the question

– without answering it – of whether the

President requires prior Congressional au-

thorization before initiating hostilities on

the Korean Peninsula. McInnis et al., The

North Korean Nuclear Challenge, 17–33.

80 See Louis Fisher, “The Korean War: On

What Legal Basis Did Truman Act?”

The American Journal of International

Law 89 (1995), 21, 32–34 (arguing that

Truman’s unilateral use of armed force

in Korea violated the U.S. Constitution

and the UN Participation Act of 1945).

81 Oppenheim, International Law, para. 93

(“According to the former practice of the

States a condition of war could de facto

arise either through a declaration of war;

or through a proclamation and manifes-

to of a State that it considered itself at

war with another State; or through the

committal by one State of certain hostile

acts of force against another State.”).

This rule exists in part to avoid ambigu-

ities arising from States deﬁning “war”

differently under their domestic law.

82 Jean Pictet, ed., Commentary on Geneva

Convention I for the Amelioration of the

Condition of the Wounded and Sick in

Armed Forces in the Field (International

Committee of the Red Cross, 1952), 32

(“One may argue almost endlessly about

the legal deﬁnition of ‘war’. A State

can always pretend, when it commits a

hostile act against another State, that it

is not making war, but merely engaging

in a police action, or acting in legitimate

self-defence. The expression ‘armed con-

ﬂict’ makes such arguments less easy. Any

difference arising between two States and

leading to the intervention of armed forces

is an armed conﬂict within the meaning

of Article 2, even if one of the Parties

denies the existence of a state of war.”).

83 As Patrick Norton has noted, “based in

large part on this lack of operational U.N.

control over any aspect of the hostilities,

most observers, including the leading US

government expert on the law of war at

the time, have concluded that the forces

under the UNC, ‘although endowed with

the name and ﬂag of the United Nations

troops, cannot in strict law be said to

comprise United Nations troops, … [and]

the acts of the Uniﬁed Command and

the United Nations Command are not

the acts of the United Nations itself.’”

Norton, “Ending the Korean Armi-

stice Agreement: The Legal Issues.”

84 For past US stance on a peace agreement,

see White House Ofﬁce of the Press

Secretary, “President Bush Meets with

South Korean President Roh,” September

7, 2007 (Bush: “it’s up to Kim Jong-il as to

whether or not we’re able to sign a peace

treaty to end the Korean War. He’s got

to get rid of his weapons in a veriﬁable

fashion.”); “U.S. Rejected North Korea

Peace Talks Offer Before Last Nuclear

Test,” Reuters, February 21, 2016; Women-

CrossDMZ, “Peace Agreement with North

Korea Is in ‘US Interest,’ Says US Under

Secretary of Defense for Policy,” January

28, 2020; “Report of the Fifth Plenary

Meeting of the 7th Central Committee

of the WPK,” KCNA, January 1, 2020.

85 Inter-Korean Agreement on Reconcilia-

tion, Non-aggression and Exchanges and

Cooperation, December 13, 1991, Preamble.

86 See, e.g., James Dobbins, “Declar-

ing an End to the Korean War,”

USA Today, February 27, 2019.

87 A situation in which two governments

compete over sovereignty of the same

territory and people is, strictly speak-

ing, a civil war. And “a civil war,” in the

words of Oppenheim, “need not from

the beginning, nor become at all, war in

the technical sense of the term.” That

said, even a civil war situation that lacks

full mutual recognition does not bar the

conclusion of a peace agreement. As

Oppenheim lays out, there can be a formal

state of war within a civil war if there is

recognition for both contending parties

of a certain level of international legal

personality, whether as belligerent power

to which the law of war applies or as a

recognized State to which international

law fully applies. He thus conceives that

an insurrection may be seen as a formal

war by States that recognize some degree

of international legal personality to the

insurgency, even if it is seen as civil war

by the loyalist government. Inter-Korean

Agreement on Reconciliation, Non-ag-

gression and Exchanges and Cooperation,

December 13, 1991, Preamble; Oppenheim,

International Law, paras. 59 and 76.

88 Both the Basic Agreement of 1991 and the

Panmunjom Declaration of 2018 refer

to the two Koreas as being in a “state of

armistice” and the necessity of transform-

ing it into a “state of peace” or to “end” it

through the conclusion of a “peace agree-

ment.” Inter-Korean Agreement on Recon-

ciliation, Non-aggression and Exchanges

and Cooperation, December 13, 1991, art. 5;

Inter-Korean Panmunjom Declaration on

Peace, Prosperity and Reuniﬁcation of the

Korean Peninsula, April 27, 2018, para. 3.3.

89 UNSC Resolution 702, August 8, 1991.

90 As addressed above, North Korea was not

a member of the UN in 1950, meaning

the relationship between the North and

the UN Sending States could only be

governed by the classical law of war, and

each side indeed relied on this law to

structure interactions with each other.

91 North Korea has diplomatic relations

with Australia (normalization in 1974),

Thailand (1975), Ethiopia (1975), Colombia

(1988), South Africa (1998), the Philippines

(2000), the United Kingdom (2000), New

Zealand (2001), Greece (2001), Belgium

(2001), the Netherlands (2001), Turkey

(2001), Luxembourg (2001), and Canada

(2001). See North Korea in the World

database, last accessed November 16,

2020, https://www.northkoreaintheworld.

org/diplomatic/countries-have-estab-

lished-diplomatic-relations-dprk.

92 Some ambiguity persists for other

combatant members of the UNC inter-

vention force that still participate ad

hoc in UNC military exercises, which

is relevant insofar as a peace agree-

ment would imply the dissolution of

the UNC (addressed in Chapter IV).

93 Inter-Korean Panmunjom Declaration on

Peace, Prosperity and Reuniﬁcation of the

Korean Peninsula, April 27, 2018, para. 3.3.

94 Treaty on the Final Settlement

with Respect to Germany, Septem-

ber 12, 1990; USSR-Japan Joint

Declaration, October 19, 1956.

CHAPTER II

95 Hans M. Kristensen and Robert S. Norris,

“North Korean Nuclear Capabilities,

2018,” Bulletin of the Atomic Scien-

tists 74, no. 1 (January 2018), 41–51.

96 Roger Dingman, “Atomic Diplomacy

during the Korean War,” Internation-

al Security 13, no. 3 (1988), 50–91.

97 Harry S. Truman, “The President’s News

Conference, Nov. 30, 1950,” in Public Pa-

pers of the Presidents of the United States:

Harry S. Truman, 1945–1953 (Washington:

Government Printing Ofﬁce, 1966), https://

www.trumanlibrary.gov/library/public-pa-

pers/295/presidents-news-conference.

ENDNOTES 51

98 Dingman, “Atomic Diplomacy

during the Korean War,” 76.

99 See Steven Lee, “The Korean Armistice

and the End of Peace: The US–UN Coa-

lition and the Dynamics of War-Making

in Korea, 1953–1976,” Journal of Korean

Studies 18, no. 2 (Fall 2013), 183, 185–195.

100 Hans M. Kristensen and Robert S.

Norris, “A History of US Nuclear

Weapons in South Korea,” Bulletin of

the Atomic Scientists 73, no. 6 (Octo-

ber 2017), 349–357. The United States

declared having removed all South

Korean–based nuclear weapons in

1991 as part of the Presidential Nuclear

Initiatives under President George H.

W. Bush to reduce the deployment of

US tactical nuclear weapons globally.

101 Balazs Szalontai, “The International

Context of the North Korean Nuclear

Program, 1953–1988,” in North Korea’s Ef-

forts to Acquire Nuclear Technology and

Nuclear Weapons: Evidence from Russian

and Hungarian Archives, Woodrow

Wilson International Center for Scholars,

Cold War International History Project

Working Paper #53, August 2006, 2–23.

102 William Burr, ed. The United States

and South Korea’s Nuclear Weap-

ons Program, 1974–1976 (The Na-

tional Security Archive, 2017).

103 “‘Detailed Report’ Explains NPT

Withdrawal,” KCNA, January 22,

2003, https://fas.org/nuke/guide/

dprk/nuke/dprk012203.html.

104 Ibid.

105 James Kim, “‘Team Spirit’ Joint

U.S.–South Korea Exercise Called

Off,” UPI, January 7, 1992.

106 U.S. State Department, “Joint Decla-

ration of the Denuclearization of the

Korean Peninsula,” January 20, 1992.

107 Agreement between the Government of

the Democratic People’s Republic of Ko-

rea and the International Atomic Energy

Agency for the Application of Safeguards

in Connection with the Treaty on the

Non-Proliferation of Nuclear Weap-

ons, INFCIRC/403, January 30, 1992.

108 “‘Detailed Report’ Explains

NPT Withdrawal,” KCNA.

109 Agreed Framework Between the

United States of America and

the Democratic People’s Repub-

lic of Korea, October 21, 1994.

110 See “Nuclear Confrontation with North

Korea: Lessons of the 1994 Crisis for

Today,” Nautilus Institute Special Report

from a roundtable at the Center for

Strategic and International Studies,

March 20, 2003, http://oldsite.nautilus.

org/DPRKBrieﬁngBook/agreedFrame-

work/1994Crisis.html; Siegfried S. Heck-

er, “Lessons Learned from the North Ko-

rean Nuclear Crises,” Daedalus 2 (Winter

2010), 44–56, https://www.amacad.org/

publication/lessons-learned-north-ko-

rean-nuclear-crises.

111 “President Delivers State of the

Union Address,” January 29, 2002.

112 David Sanger, “Bush Tells Seoul Talks

with North Won’t Resume Now,”

New York Times, March 8, 2001.

113 William M. Arkin, “Secret Plan

Outlines the Unthinkable,” Los An-

geles Times, March 10, 2002.

114 David Sanger, “Aftereffects: Nucle-

ar Standoff; Administration Divid-

ed over North Korea,” New York

Times, April 21, 2003; John Bolton,

Surrender Is Not an Option (Si-

mon and Schuster, 2008), 99–129.

115 Hugh Gusterson, “Nuclear Weapons

and the Other in the Western Imag-

ination,” Cultural Anthropology 14,

no. 1 (February 1999), 111–143.

116 Féron et al., The Human Costs

and Gendered Impact of Sanc-

tions on North Korea, 4–5.

117 The International Court of Justice, in its

advisory opinion on the Legality of the

Threat or Use of Nuclear Weapons, found

that fulﬁlling this commitment to general

and complete disarmament remains “an

objective of vital importance.” Legality of

the Threat or Use of Nuclear Weapons,

Advisory Opinion, I.C.J. Reports 1996,

paras. 98–103. See also Nuclear Non-Pro-

liferation Treaty, July 1, 1968, arts. I (pro-

hibition for nuclear-weapon State parties

to transfer nuclear weapons), II (pro-

hibition for non-nuclear-weapon State

parties to maintain or develop nuclear

weapons), and VI (requirement to pursue

nuclear disarmament); John Burroughs,

“The Legality of Threat or Use of Nuclear

Weapons: A Guide to the Historic Opinion

of the International Court of Justice,”

International Association of Lawyers

Against Nuclear Arms, 1997, http://www.

lcnp.org/wcourt/adlegalintro.htm.

118 North Korea disputes the legality of

the Security Council resolutions that

ban and apply sanctions to its nuclear

weapons program. It considers that the

resolutions violate its right to self-de-

fense and unjustiﬁably single it out

among other existing nuclear pow-

ers. See Statement by Ambassador Ri

Yong-Ho at the 72nd session of the UN

General Assembly, September 23, 2017.

119 See, e.g., “Law on Consolidating Position

of Nuclear Weapon State Adopted,”

KCNA, April 1, 2013 (“The nuclear

weapons of the DPRK are just means

for defence as it was compelled to have

access to them to cope with the ev-

er-escalating hostile policy of the U.S.

and nuclear threat.”); Statement by

Ambassador Ri Yong-Ho at the 72nd

session of the UN General Assembly,

September 23, 2017 (“Our nation-

al nuclear force is, to all intents and

purposes, a war deterrent for putting

an end to nuclear threat of the U.S. and

for preventing its military invasion.”).

120 See, e.g., White House Ofﬁce of the Press

Secretary, “President Bush Meets with

South Korean President Roh,” September

7, 2007 (Bush: “it’s up to Kim Jong-il as to

whether or not we’re able to sign a peace

treaty to end the Korean War. He’s got

to get rid of his weapons in a veriﬁable

fashion.”); Reuters, “U.S. Rejected North

Korea Peace Talks Offer Before Last

Nuclear Test,” February 21, 2016 (State

Department spokesman John Kirby:

“To be clear, it was the North Koreans

who proposed discussing a peace treaty.

We carefully considered their proposal,

and made clear that denuclearization

had to be part of any such discussion.

The North rejected our response.”).

121 See Ward Wilson, “The Myth of Nuclear

Deterrence,” The Nonproliferation

Review 15, no. 3 (October 2008), 421–439;

Scott Sagan and Kenneth Waltz, The

Spread of Nuclear Weapons: A Debate

(W. W. Norton, 1995); Ray Acheson, “The

Nuclear Ban and the Patriarchy: A Femi-

nist Analysis of Opposition to Prohibiting

Nuclear Weapons,” Critical Studies on

Security 7, no. 1 (April 2018), 78–82.

122 “North Koreans Rally against US Sanc-

tions,” CNN, August 10, 2017, https://

edition.cnn.com/2017/08/10/asia/gallery/

north-korea-parade-donald-trump.

123 An important factor in determining

whether to include disarmament provi-

sions is that a peace agreement can only

come to fruition and be sustainable if all

sides are convinced that it serves their

interests better than the wartime status

quo. The baseline promise of a peace

agreement is to improve each side’s

national security by reducing the risk

of armed conﬂict. Trying to disarm one

side directly affects that side’s national

security calculus. It could quickly lead to

a breakdown of consensus if the relevant

side feels safer in an armed state of war

than in a disarmed state of peace.

124 See Van Jackson, Risk Realism: The

Arms Control Endgame for North Korea

Policy, Center for a New American

Security, September 2019; Siegfried

Hecker, Robert Carlin, and Elliot Serbin,

“A Technically-Informed Roadmap for

North Korea’s Denuclearization,” Work-

ing Paper, May 28, 2018, https://fsi-live.

s3.us-west-1.amazonaws.com/s3fs-pub-

lic/hecker_carlin-serbin_denuc_rlc.pdf.

125 David Vergun, “DOD Ofﬁcial Outlines

U.S. Nuclear Deterrence Strategy,” DOD

News, September 2, 2020; Kingston Reif,

“U.S. Nuclear Modernization Programs,”

Arms Control Association, last modiﬁed

August 2018, https://www.armscontrol.

org/factsheets/USNuclearModernization.

126 Nuclear Non-Proliferation Treaty, July

1, 1968, art. VI; U.S.-DPRK Singapore

Declaration, June 12, 2018, art. 3.

127 Treaty on the Prohibition of Nu-

clear Weapons, July 7, 2017.

CHAPTER III

128 See, e.g., Stacie E. Goddard and Daniel

Nexon, “Kim Jong Un Gets to Sit at

the Cool Table Now,” Foreign Policy,

June 21, 2018; David Nakamura, “Once

Forceful on North Korean Human

Rights Abuses, Trump Is Most-

52 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

ly Mum during Summit with Kim,”

Washington Post, June 12, 2018.

129 “Report of the Special Rapporteur

on the situation of human rights

in the Democratic People’s Repub-

lic of Korea,” February 25, 2020.

130 Universal Declaration of Hu-

man Rights, Preamble.

131 United Nations Charter, Art. 1(2).

132 Charity Butcher and Maia Carter

Hallward, “Bridging the Gap between

Human Rights and Peace: An Anal-

ysis of NGOs and the Human Rights

Council,” International Studies Per-

spectives 18, no. 1 (February 2017), 82.

133 In the lead-up to the adoption of the Uni-

versal Declaration of Human Rights, UN-

ESCO attempted to identify a universally

accepted philosophical foundation for

human rights. The results were mixed. As

one of the participants put it, “we agree

about the rights but on condition that no

one asks us why.” There were unrecon-

ciled – and potentially irreconcilable –

differences between various traditions of

thought in the deﬁnition of what makes

us human and hence on which aspects

of human nature were most important

to protect. The relevant committee pro-

posed a practical list of rights that drew

wide agreement and that was largely

informed by Western historical experi-

ence. It could not, however, answer which

of these rights deserved greater priority,

given the divergent scales of values of the

various thought traditions. Jacques Mar-

itain, Introduction, in UNESCO Commit-

tee on the Theoretical Bases of Human

Rights, Human Rights: Comments and

Interpretations, UNESCO/PHS/3 (rev.),

July 25, 1948; see also John Rawls, A

Theory of Justice, rev. ed. (Harvard

University Press, 1999), 340, and Political

Liberalism (Columbia University Press,

1993), 134–149 (conceptualizing practical

agreements on principles of justice as

based on an “overlapping consensus”

between different schools of thought).

134 Burns H. Weston, “Human Rights,” Hu-

man Rights Quarterly 6 (1984), 264–266.

135 Rosa Freedman, “‘Third Generation’

Rights: Is There Room for Hybrid

Constructs within International

Human Rights Law?” Cambridge

Journal of International and Com-

parative Law 2, no. 4 (2014), 943.

136 The African Union’s Charter

on Human and People’s Rights

is the foremost example.

137 UN General Assembly Resolution 39/11,

“Declaration on the Right of Peoples to

Peace,” November 12, 1984. This right to

peace was reafﬁrmed in UN General As-

sembly Resolution 58/192, December 22,

2003; UN General Assembly Resolution

60/163, December 16, 2005; UN General

Assembly Resolution 65/222, December

21, 2010; UN General Assembly Res-

olution 67/173, December 20, 2012.

138 The resolution on the people’s right to

peace was adopted with 92 states in favor,

none opposing, and 34 abstaining. Some

abstaining states had argued during the

debate that the right had no legal basis.

Christian Guillermet Fernandez et al.,

The Right to Peace: Past, Present and Fu-

ture (UN University for Peace, 2017), 63.

139 UN General Assembly Resolution 71/189,

“Declaration on the Right to Peace,” U.N.

General Assembly, December 19, 2016,

art. 1. The resolution was adopted with

131 states in favor, 34 opposed, and 19 ab-

staining. See also Guillermet Fernandez et

al., The Right to Peace, 191–194 (arguing

that this declaration elaborated the right

to peace as a human rights notion, beyond

its traditional state-to-state framing).

140 See, e.g., Philip Alston, “The Human

Right to Peace,” Bulletin of Peace

Proposals 11, no. 4 (1980), 319–329.

141 Butcher and Hallward, “Bridging the Gap

between Human Rights and Peace,” 87.

142 “World Military Expenditures and Arms

Transfers 2019,” U.S. State Department

database, accessed November 23, 2020,

https://www.state.gov/world-military-ex-

penditures-and-arms-transfers-2019/.

143 “2020 Global Hunger Index by Sever-

ity,” Global Hunger Index, accessed

November 23, 2020, https://www.

globalhungerindex.org/results.html;

for more on how the international

sanctions regime has exacerbated

poverty in North Korea, see Féron et

al., The Human Costs and Gendered

Impact of Sanctions on North Korea.

144 “Status of Ratiﬁcation Interac-

tive Dashboard,” U.N. Ofﬁce of the

High Commissioner of Human

Rights, accessed November 23, 2020,

https://indicators.ohchr.org/.

145 “North Korea Country Report,” World

Report 2020, Human Rights Watch, 2020

(“On May 9, 2019 the North Korean gov-

ernment underwent a Universal Periodic

Review (UPR), the HRC’s peer-review

process that considers each UN member

state’s human rights record every four-

and-a-half years. Out of 262 recommen-

dations made by 87 states, North Korea

accepted 132 recommendations, mostly

concerning joining other international

instruments, treaty bodies, developing

more laws, the rights of children, women,

people with disabilities, food, health,

education, justice, movement, religion,

expression, water, and sanitation.”).

146 DPRK Socialist Constitution, Chapter V.

147 See, e.g., Report of the Commission of

Inquiry on Human Rights in the Dem-

ocratic People’s Republic of Korea, A/

HRC/25/63, February 7, 2014; Report

of the UN Secretary General regard-

ing the situation of human rights in

the Democratic People’s Republic of

Korea, A/74/268, August 2, 2019.

148 UN Human Rights Council Resolu-

tion 22/13, Situation of Human Rights

in the Democratic People’s Repub-

lic of Korea, para. 5, April 9, 2013.

149 See, e.g., Letter from the Permanent

Representative of the DPRK to the UN

addressed to the UN Secretary-Gen-

eral, September 15, 2014, 88, 108–112.

150 See, e.g., Letter from the Permanent

Representative of the DPRK to the UN

addressed to the UN Secretary-Gen-

eral, September 15, 2014, 97–112.

151 Democratic People’s Republic

of Korea, “National report sub-

mitted in accordance with

paragraph 5 of the annex to Human Rights

Council resolution 16/21,” January 30, 2014.

152 Letter from the Permanent Representa-

tive of the DPRK to the UN addressed to

the UN Secretary-General, September

15, 2014, notably 11, 59, 61, 63. There have

been particular tensions surrounding

Christian missionaries in North Korea.

Matthew Cole, “The Pentagon’s Mission-

ary Spies: U.S. Military Used Christian

NGO as Front for North Korea Espio-

nage,” The Intercept, October 26, 2015,

https://theintercept.com/2015/10/26/

pentagon-missionary-spies-chris-

tian-ngo-front-for-north-ko-

rea-espionage.

153 Sandra Fahy, for instance, argued that

the 119-page North Korean report sent

to the Secretary General on September

15, 2014, was “not a real report of any

kind but instead a … repetitive evasion

of the matter at hand.” Sandra Fahy,

Dying for Rights: Putting North Korea’s

Human Rights Abuses on the Record

(Columbia University Press, 2019).

154 Human Rights Watch, “South Korea:

Cold War Relic Law Criminalizes Crit-

icism,” May 28, 2015; Amnesty Interna-

tional, “South Korea: National Security

Law Continues to Restrict Freedom

of Expression,” January 20, 2015.

155 Cumings, The Korean War, 207.

156 According to the Stockholm Peace

Research Institute, US military spend-

ing rose from $156 billion in 1950, in

constant 2018 USD, to $483 billion in

1953. Stockholm International Peace

Research Institute, Military Expendi-

ture Database, accessed Oct. 25, 2020,

https://www.sipri.org/databases/

milex; Cumings, The Korean War, 211.

157 Nan Tian et al., “Trends in World Military

Expenditure, 2019,” Stockholm Inter-

national Peace Research Institute, April

2020, 3, https://www.sipri.org/sites/de-

fault/ﬁles/2020-04/fs_2020_04_milex_0.

pdf (“The USA spent almost as much

on its military in 2019 as the next 10

highest spenders combined ….”).

158 See, e.g., Philip Alston, “Extreme Pov-

erty in America: Read the UN Special

Monitor’s Report,” Guardian, December

15, 2017. Note that the United States has

signed but not ratiﬁed the Internation-

al Covenant on Economic, Social, and

Cultural Rights, and as such is prohibited

from violating its object and purpose.

159 See, e.g., Human Rights Committee,

“Concluding Observations on the Fourth

ENDNOTES 53

Periodic Report of the United States

of America,” CCPR/C/USA/CO/4,

April 23, 2014; Matthew Weaver, “US

Human Rights Record Chastised in New

Report,” Guardian, March 27, 2014.

160 Under international law, intentional

lethal force may be used outside of armed

conﬂict only when strictly necessary to

prevent an imminent threat to life. With-

in the context of an armed conﬂict, par-

ties may target members of an enemy’s

armed forces, military objectives, or civil-

ians directly participating in hostilities.

161 Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v. United

States of America), Jurisdiction of the

Court and Admissibility of the Appli-

cation, Judgment, I.C.J. Reports 1984,

para. 73s (“Principles such as those of

the non-use of force, non-intervention,

respect for the independence and terri-

torial integrity of States, and the freedom

of navigation, continue to be binding as

part of customary international law”);

Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v. United

States of America), Merits, Judgment,

I.C.J. Reports 1986, para. 263 (in which

the Court dismisses the argument that

military intervention could be justiﬁed by

alleging that the target state was moving

toward the establishment of a totalitarian

communist dictatorship: “adherence by a

State to any particular doctrine does not

constitute a violation of customary in-

ternational law; to hold otherwise would

make nonsense of the fundamental prin-

ciple of State sovereignty, on which the

whole of international law rests, and the

freedom of choice of the political, social,

economic and cultural system of a State”).

162 Third Restatement Foreign Rela-

tions Law, Ch. 1, para. 102 (1987).

163 Jack Donnelly, International Human

Rights (Routledge, 1993), 29 (“Noninter-

vention is the duty correlative to the right

of sovereignty. Other states are obliged

not to interfere with the internal actions

of a sovereign state …. Because human

rights principally regulate the ways states

treat their own citizens within their own

territory, international human rights pol-

icies would seem to involve unjustiﬁable

intervention. A principal function of in-

ternational law, however, is to overcome

the initial presumption of sovereignty and

nonintervention. A treaty is a contractual

agreement by states to accept certain ob-

ligations to other states, that is, speciﬁed

restrictions on their sovereignty.”). The

extent to which States consent to open

themselves to complaints by other States

in the context of human rights treaties

may nevertheless be closely regulated by

the treaties themselves. See, e.g., Inter-

national Covenant on Civil and Political

Rights, December 16, 1966, art. 41.

164 DLA Piper and U.S. Committee for

Human Rights in North Korea, Failure to

Protect: A Call for the Security Council

to Act in North Korea, October 30, 2006,

Appendix II (“The World Summit Out-

come Document, adopted unanimously

by the heads of states and governments

attending the opening of the 60th Gener-

al Assembly, endorsed the responsibility

to protect doctrine …. Resolution 1674

contains the ﬁrst Security Council en-

dorsement of the responsibility to protect

doctrine.”); Also see “Responsibility to

protect,” U.N. Ofﬁce on Genocide Pre-

vention and the Responsibility to Protect,

accessed November 23, 2020, https://

www.un.org/en/genocideprevention/

about-responsibility-to-protect.shtml.

165 See, e.g., Marcelo Kohen, “The Principle

of Non-Intervention 25 Years after the

Nicaragua Judgment,” Leiden Journal of

International Law 25, no. 1 (March 2012),

163 (“There is nothing in the concept of

R2P allowing for a reversal of the prin-

ciple of non-intervention or otherwise

allowing states to intervene without SC

authorization”); Silva D. Kantareva, “The

Responsibility to Protect: Issues of Legal

Formulation and Practical Application,”

Interdisciplinary Journal of Human

Rights Law 6, no. 1 (2012), 5 (“The

crux of the controversy is, of course,

the infringement on state sovereignty

above and beyond the preexisting legally

recognized basis for it—self-defense and

traditional Chapter VII enforcement

by the UN Security Council—triggered

by threats to international peace and

security.”). See also Adom Getachew,

“Holding Ourselves Responsible,”

Boston Review, September 11, 2019.

166 See, e.g., Olivia Enos, “Why Human

Rights Must Be Raised at a Second

Summit with North Korea,” The Heritage

Foundation, February 11, 2019 (“[North

Korean Sanctions and Policy Enhance-

ment Act] sanctions are among the

toughest in Treasury’s sanctions arsenal.

NSKPEA sparked the broader use of

executive authorities during the Obama

administration that led to the designation

of Kim Jong-un, 10 other North Koreans,

and ﬁve North Korean entities on human

rights grounds under executive orders

(E.O.) 13687 and 13722. It marked the

ﬁrst time that the US explicitly issued

sanctions on human rights grounds.

Additional sanctions followed.”). See also

Congressional Research Service, North

Korea: Legislative Basis for Economic

Sanctions, March 9, 2020; Féron et al.,

The Human Costs and Gendered Impact

of Sanctions on North Korea; Hazel

Smith, “The Ethics of United Nations

Sanctions on North Korea: Effectiveness,

Necessity and Proportionality,” Critical

Asian Studies 52, no. 2 (2020), 182–203,

DOI: 10.1080/14672715.2020.1757479.

167 Daniel Wertz, “DPRK Diplomatic

Relations,” National Committee on

North Korea, August 2016; Matthew

Pennington, “U.S. Wants World to Isolate

North Korea, So What’s That Mean?”

Associated Press, December 10, 2017.

168 See, e.g., DLA Piper and U.S. Com-

mittee for Human Rights in North

Korea, Failure to Protect.

169 See, e.g., Jeff Jacoby, “Only Regime

Change Can End North Korea’s Nuclear

Threat,” Boston Globe, April 29, 2020.

170 John Park and Jim Walsh, “Stopping

North Korea, Inc.: Sanctions Effective-

ness and Unintended Consequences,”

MIT Security Studies Program, August

2016, https://www.belfercenter.org/

sites/default/ﬁles/legacy/ﬁles/Stop-

ping%20North%20Korea%20Inc%20

Park%20and%20Walsh%20.pdf.

171 Patricia Goedde, “Legal Mobiliza-

tion for Human Rights Protection in

North Korea: Furthering Discourse

or Discord?” Human Rights Quarterly

32, no. 3 (August 2010), 569 (“This state

ideology can be understood as a social-

ist-revolutionary, nationalist, and survivalist

response to the Korean War, and explains

North Korea’s defensive posture against

what it perceives to be the continuing

threats of American militarism, capital-

ism, and Western imperialism overall.”).

172 As an example, Pyongyang dismissed a

UN Commission of Investigation (COI)

report on the country’s human rights

situation as part of a US-led plot for

regime change: Letter from the Perma-

nent Representative of the DPRK to the

UN addressed to the UN Secretary-Gen-

eral, September 15, 2014, 88, 108–112.

173 See, e.g., Jiyoung Song, “Why Do North

Korean Defector Testimonies So Often

Fall Apart?” Guardian, October 13, 2015

(“While there is no doubt the North

Korean regime has committed serious

human rights abuses, there are questions

to be asked about how heavily outsiders

should rely on defectors’ testimonies as

credible evidence.”). See also Goedde,

“Legal Mobilization for Human Rights

Protection,” 535 (“More progressive

South Korean NGOs point out that

South Korea’s own National Security Act

would prevent any pro-North Korean

information from reaching the public, so

the natural consequence would be that

the worst political and administrative

aspects of the North Korean govern-

ment are publicized over more objective

reports … it remains a challenge to verify

the scope of abuse nationwide.”).

174 Doug Bandow, “Trump Should Offer

Diplomatic Ties to North Korea – but

Insist on Talking about Human Rights,”

Cato Institute, January 20, 2020.

175 Geoff Thale, “How U.S. Policy Could Im-

prove Human Rights and Political Debate

in Cuba,” Washington Ofﬁce on Latin

America, July 14, 2016, https://www.wola.

org/analysis/u-s-policy-improve-hu-

man-rights-political-debate-cuba/.

176 See, e.g., Elizabeth Beavers et al., Peace in

Afghanistan: Ending the War Respon-

sibly, Friends Committee on National

Legislation, May 2020, https://www.

fcnl.org/issues/us-wars-militarism/

ending-afghanistan-war-responsibly.

177 For an example of existing enforce-

ment mechanisms in human rights

treaties, see, e.g., International Cov-

enant on Civil and Political Rights,

December 16, 1966, art. 41.

178 Military and Paramilitary Activities in

and against Nicaragua (Nicaragua v. Unit-

ed States of America), Merits, Judgment,

I.C.J. Reports 1986, para. 268 (“while the

United States might form its own apprais-

al of the situation as to respect for human

54 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

rights in Nicaragua, the use of force could

not be the appropriate method to monitor

or ensure such respect.”). See also paras.

205 (on the deﬁnition of unlawful coer-

cion violating the principle of noninter-

ference) and 263 (ﬁnding that a state’s

choice of a political doctrine does not per

se violate customary international law).

179 See, e.g., Goddard and Nexon, “Kim Jong

Un Gets to Sit at the Cool Table Now”; see

also Nakamura, “Once Forceful on North

Korean Human Rights Abuses, Trump Is

Mostly Mum During Summit with Kim.”

180 “U.S. Relations with Saudi Arabia,”

U.S. State Department, November 26,

2019, https://www.state.gov/u-s-rela-

tions-with-saudi-arabia/; “Saudi Arabia

2019,” Amnesty International; David

Brennan, “America Is Giving Saudi

Arabia Cover for the Worst Human

Rights Abuses in Decades, Watchdog

Warns,” Newsweek, January 21, 2020.

181 See, e.g., “Letter to President Moon Jae-

In RE: ROK’s stance on human rights in

North Korea,” December 16, 2019; Am-

nesty International, “Korea Peace Talks: A

Missed Opportunity for Human Rights,”

April 27, 2018; “Laying the Human Rights

Foundation for Peace,” U.N. Ofﬁce of the

High Commissioner on Human Rights,

Discussion paper, September 2020.

182 See, e.g., Butcher and Hallward,

“Bridging the Gap between Human

Rights and Peace”; see also Chris-

tine Ahn and Suzy Kim, “OPINION:

Improve North Korean Human Rights

by Ending War,” InterPress Service

News Agency, December 2, 2014.

183 Butcher and Hallward, “Bridging the

Gap between Human Rights and Peace.”

184 See, e.g., “2019 Report on International

Religious Freedom: Democratic People’s

Republic of Korea,” U.S. State Depart-

ment Ofﬁce of Religious Freedom.

185 See, e.g., North Korea Sanctions Enforce-

ment and Policy Enhancement Act, Sec.

402; Goedde, “Legal Mobilization for Hu-

man Rights Protection in North Korea,”

540 (“In response to the initial bill of the

US North Korean Human Rights Act of

2004, Sarangbang issued a statement on

behalf of progressive civic groups, claim-

ing that the bill risked the peaceful nor-

malization of relations between the two

Koreas, thereby obstructing, rather than

promoting, the path toward addressing

humanitarian concerns in the North.”).

186 Customary international law is clear,

as reﬂected in the International Court

of Justice’s landmark Nicaragua v.

USA opinion, that a state’s ideology or

political system is not a lawful ground

for the threat or use of force. Military

and Paramilitary Activities in and against

Nicaragua (Nicaragua v. United States

of America), Merits, Judgment, I.C.J.

Reports 1986, para. 205 (“the principle

[of nonintervention] forbids al1 States or

groups of States to intervene directly or

indirectly in internal or external affairs

of other States. A prohibited interven-

tion must accordingly be one bearing on

matters in which each State is permitted,

by the principle of State sovereignty. to

decide freely. One of these is the choice of

a political, economic, social and cultural

system, and the formulation of foreign

policy. Intervention is wrongful when

it uses methods of coercion in regard to

such choices, which must remain free

ones. The element of coercion, which

deﬁnes, and indeed forms the very

essence of, prohibited intervention,

is particularly obvious in the case of

an intervention which uses force.”).

187 The Paris Peace Accords that ended the

Vietnam War, for instance, emphasized

the right to self-determination, only men-

tioning speciﬁc human rights in a clause

calling South Vietnam and the Viet Cong

to respect the democratic liberties of the

people. Provisions on internal human

rights reforms are more common in peace

deals ending internal armed conﬂicts, in

which there are no sovereign barriers in

play and the priority of the parties is in-

stead to ﬁnd a modus vivendi within the

same state. Agreement on Ending the War

and Restoring Peace in Vietnam, January

27, 1973, art. 11. See also Agreement be-

tween the United Kingdom, the Republic

of Ireland, April 10, 1998 (“Good Friday

Agreement”), arts. 2 and 4; Final Agree-

ment to End the Armed Conﬂict and

Build a Stable and Lasting Peace between

the Government of Colombia and the

Revolutionary Armed Forces of Colom-

bia – People’s Army, November 24, 2016.

188 U.N. Security Council Reso-

lution 83, June 27, 1950.

189 Féron et al., The Human Costs and Gen-

dered Impact of Sanctions on North Ko-

rea, 14–19. Reliance on sanctions also had

an economic impact on the United States

government and on private actors in the

United States and the rest of the world, if

only because of the resources that sanc-

tions monitoring and compliance require;

U.S. Government Accountability Ofﬁce,

Report to the House Committee on For-

eign Affairs, Economic Sanctions: Trea-

sury and State Have Received Increased

Resources for Sanctions Implementation

but Face Hiring Challenges, March 2020;

Chad O’Carroll, “An Insider’s View:

How Banks Try to Avoid North Korea

Sanctions Risks,” NK News, July 11, 2019,

Andrew W. Lehren and Dan de Luce,

“Secret Documents Show How North

Korea Launders Money Through U.S.

Banks,” NBC News, September 20, 2020.

190 South Korea, for instance, has attempted

to conduct a transitional justice process

for victims of past violations by its own

government, notably for the era of

military dictatorship, but the continuing

state of war limited its ability to pursue

justice for violations committed against

its citizens by other governments. Kim

Dong-Choon, “The Truth and Reconcili-

ation Commission of Korea: Uncovering

the Hidden Korean War,” Asia-Paciﬁc

Journal: Japan Focus 8, Iss. 9, no. 5

(March 1, 2010); Mark Selden and Kim

Dong-Choon, “South Korea’s Embattled

Truth and Reconciliation Commission,”

Asia-Paciﬁc Journal: Japan Focus 8, Iss.

9, no. 4 (March 1, 2010); Paul Hanley,

“Transitional Justice in South Korea: One

Country’s Restless Search for Truth and

Reconciliation,” U. of Pennsylvania East

Asian Law Review 9 (2014), 138–166.

CHAPTER IV

191 On the purpose of the alliance from

a US perspective, see Testimony of

Secretary of State John Foster Dull-

es to the Senate Foreign Affairs

Committee, January 13, 1954.

192 Karl Friedhoff, “While Positive toward

US Alliance, South Koreans Want to

Counter Trump’s Demands on Host-Na-

tion Support,” Chicago Council on

Global Affairs, December 16, 2019; Karl

Friedhoff, “Americans Remain Commit-

ted to South Korea,” Chicago Council

on Global Affairs, September 9, 2019.

193 U.S.-ROK Joint Statement in Commem-

oration of the 70th Anniversary of the

Outbreak of the Korean War, June 24,

2020. See also William Stueck and Boram

Yi, “‘An Alliance Forged in Blood’: The

American Occupation of Korea, the

Korean War, and the US-South Kore-

an Alliance,” The Journal of Strategic

Studies 33, no. 2 (2010), 177–209.

194 Letter from President Syngman

Rhee to President Dwight Ei-

senhower, May 30, 1953.

195 Ibid.

196 Letter from President Dwight Eisen-

hower to President Syngman Rhee,

June 6, 1953. In a subsequent letter,

Rhee made clear he still opposed the

planned Armistice for failing to secure

Chinese withdrawal. The Armistice

was concluded without his signature.

Letter from Syngman Rhee to President

Dwight Eisenhower, June 19, 1953.

197 Korean War Armistice Agreement, July

27, 1953, Preamble and Art. IV, para. 60.

198 U.S.-ROK Mutual Defense Trea-

ty, October 1, 1953, art. III.

199 Ibid., Preamble and art. VI.

200 Testimony of Secretary of State John

Foster Dulles to the Senate Foreign

Affairs Committee, January 13, 1954.

201 Joint Statement by Secretary of State

John Foster Dulles and President

Syngman Rhee, October 8, 1953.

202 Getting a complete picture of North

Korean peace offers is challenging, given

the often opaque and “behind-closed-

doors” nature of diplomacy, but a num-

ber of these offers have been publicized.

Records of the North Korean and Chi-

nese position at the Geneva Conference

are particularly revealing. The main

sticking points with the US and South

Korean position appear to have been less

on the principle of peace itself than on

the sequencing of troop withdrawal and

on whether Korean uniﬁcation should

be UN-supervised or decided by Koreans

themselves. The United States ended the

conference over a deadlock on the latter

question. During the Cold War, Pyong-

yang’s declared policy was to seek ﬁrst a

peace agreement with Washington, ex-

ENDNOTES 55

cluding the participation of what it then

considered the spoiling role of Seoul, and

to later have a process of peaceful reuni-

ﬁcation with the South into a neutral and

federal republic. North Korea also made

repeated peace offers after the Cold War,

with for instance the Obama administra-

tion rejecting them insofar as they did

not address denuclearization. Pyongyang

made clear with Seoul in the Panmunjom

Declaration of 2018 that it today agrees

with the goal of a peace agreement that

includes the South. Mark Tokola, The

1954 Geneva Conference on Korea: From

Armistice to Stalemate, The Asan Forum,

February 14, 2019; Letter from the Su-

preme People’s Assembly of the DPRK to

the U.S. Senate, March 25, 1974; “Report

to the Political Bureau on the Korean

Worker’s Party’s 6th Congress and on

the Celebrations of the 35th Anniversary

of the Foundation of the KWP,” October

16, 1980, Wilson Center History and

Public Policy Program Digital Archive;

“North Korea Proposed Creating Neutral

State in 1987: Declassiﬁed Dossier,”

Yonhap News Agency, March 30, 2018;

“North Korea Rejects More Nuclear

Talks, Demands Peace Treaty with U.S.,”

Reuters, October 17, 2015; “U.S. Rejected

North Korea Peace Talks Offer Before

Last Nuclear Test: State Department,”

Reuters, February 21, 2016; Inter-Korean

Panmunjom Declaration on Peace, Pros-

perity and Reuniﬁcation of the Korean

Peninsula, April 27, 2018, para. 3.3; Kim

Yong Guk, “Building a Peace Regime

on the Korean Peninsula: An Urgent

Demand of the Times,” DPRK Ministry

of Foreign Affairs, September 4, 2018.

203 See also South Korean intellectual

Paik Nak-chung’s conceptualization

of the division as a “system.” Nak-

chung Paik, The Division System in

Crisis: Essays on Contemporary Korea

(University of California Press, 2011).

204 First to collapse, in 1958, was the pro-

hibition of military reinforcements and

the accompanying neutral supervision

mechanism. In 1994, North Korea started

boycotting formal Armistice meetings,

leaving the UNC and South Korea to hold

them unilaterally before an empty chair.

In the years that followed, North Korea

repeatedly repudiated the Armistice.

Steven Lee, “The Korean Armistice and

the End of Peace: The US-UN Coalition

and the Dynamics of War-Making in

Korea, 1953–76,” The Journal of Korean

Studies 18, no. 2 (Fall 2013), 183–224;

Yonhap News Agency, “Chronology

of Major North Korean Statements on

the Armistice,” May 28, 2009; Letter

from the Permanent Representative of

the DPRK to the UN security Council

President, March 15, 2013; McInnis et

al., The North Korean Nuclear Chal-

lenge, 17 (“while the United Nations has

stated that the armistice agreement still

serves as the basis and starting point for

permanent peace on the Korean Pen-

insula, it may be difﬁcult to argue that

it still serves as the controlling source

of international law and authority with

regard to all uses of military force.”).

205 Inter-Korean Panmunjom Dec-

laration on Peace, Prosperity and

Reuniﬁcation of the Korean Pen-

insula, April 27, 2018, para. 3.

206 For a picture of how existing ten-

sions are discussed among high-lev-

el US and ROK ofﬁcials, see Clint

Work, “Alternative Futures for the

US-ROK Alliance: Will Things Fall

Apart?” 38 North, May 7, 2020.

207 Kim Gamel, “Rare Public Discord

between U.S., S. Korea Raises Concern

about Rift,” Stars and Stripes, October 14,

2018; Henri Féron, “Moon Jae-in: Stuck

Between a Rock and a Hard Place on

North Korea,” NK News, June 15, 2019.

208 Friedhoff, “While Positive to-

ward US Alliance, South Koreans

Want to Counter Trump’s De-

mands on Host-Nation Support.”

209 During the “ﬁre and fury” escala-

tion of 2017, certain US politicians

argued for a preventive war on the

North with the logic that it was better

for the deaths to happen in Korea

than in the United States. Erik Ortiz

and Arata Yamamoto, “Sen. Lindsey

Graham: Trump Says War with North

Korea an Option,” NBC News, August

1, 2017; Mehdi Hasan, “Why Does

Sen. Lindsey Graham Think Killing

Millions of Korean Would be ‘Worth

It’?” The Intercept, March 6, 2018.

210 Choe Sang-hun, “South Korea’s Leader

Bluntly Warns US Against Striking

North,” New York Times, August 15,

2017; Choe Sang-hun, “Kim Young-sam,

South Korean President Who Opposed

Military, Dies at 87,” New York Times,

November 22, 2015 (“In his memoir,

Mr. Kim said he persuaded President

Bill Clinton to cancel the United States’

plan to bomb North Korea’s nuclear

facilities in 1994 for fear of war.”).

211 In 2019, 78 percent of South Koreans

said they are either very or somewhat

conﬁdent the United States would

defend South Korea in case of attack.

Meanwhile, 58 percent of Americans said

they supported the use of US troops to

defend South Korea against the North

– a majority but a decrease of 6 percent

compared to 2018. Mark Bowden, “How

to Deal with North Korea,” The Atlan-

tic, July/August 2017 (“Would the U.S.

Sacriﬁce Los Angeles to Save Seoul?”);

Friedhoff, “While Positive toward

US Alliance, South Koreans Want to

Counter Trump’s Demands on Host-Na-

tion Support”; Friedhoff, “Americans

Remain Committed to South Korea.”

212 William Hartung, Sustainable Defense:

More Security, Less Spending, Sus-

tainable Defense Task Force, Center

for International Policy, June 2019;

Laila Ujayli, Reimagining U.S. Security

Spending for the 21st Century & Beyond,

Win Without War, September 2019;

Lorah Steichen and Lindsay Koshgari-

an, No Warming, No War: How Mili-

tarism Fuels the Climate Crisis – and

Vice Versa, National Priorities Project,

Institute for Policy Studies, April 2020.

213 Victor Cha and Andy Lim, “Database:

Donald Trump’s Skepticism of U.S.

Troops in Korea Since 1990,” CSIS:

Beyond Parallel, February 25, 2019,

accessed November 23, 2020, https://

beyondparallel.csis.org/database-don-

ald-trumps-skepticism-u-s-troops-ko-

rea-since-1990; Michael R. Gordon and

Gordon Lubold, “Trump Administration

Weighs Troop Cut in South Korea,”

Wall Street Journal, July 17, 2020.

214 Kim Gamel, “US and South Korea Cut

Short Defense Cost-Sharing Talks,”

Stars and Stripes, November 19, 2019;

Sangmi Cha, “South Korean Protest-

ers Destroy Portraits of US Ambassa-

dor,” Reuters, December 13, 2019.

215 North Korea has at times responded

to reports of such content with pre-

emptive strike threats of its own. Eric

Talmadge, “Are the US and South Korea

Really Planning to Assassinate Kim

Jong-Un?” The Independent, March

8, 2016; Brian Padden, “North Korea

Threatens Pre-emptive Nuclear Strike,”

Voice of America, March 7, 2016.

216 Bryan Harris and Kang Buseong, “S

Korea Peace Drive Complicated by

‘Revitalisation’ of UN Command,”

Financial Times, October 2, 2018. Edith

M Lederer, “N Korea demands dissolu-

tion of the UN Command in S Korea,”

Associated Press, June 21, 2013.

217 According to US Colonel Shawn P.

Creamer, no sending state is known to

have offered a standing commitment

of troops to the UNC for the case of a

resumption of hostilities. US efforts

for revitalization highlighted two key

sending state concerns: that the UNC was

controlled by the US rather than the UN,

and that this would mean sending states

would simply be troop providers. South

Korea’s response to revitalization has

also been “lukewarm,” based on concerns

about sovereignty and perceptions of the

UNC’s ineffectiveness. Shawn P. Creamer,

“The United Nations Command and

Sending States,” International Journal

of Korean Studies XXI, no. 2 (2017), 22.

218 Ankit Panda, “China Brings More Eco-

nomic Retaliation for THAAD Against

South Korea,” The Diplomat, Decem-

ber 12, 2016; Global Times, “THAAD

Provides a Reason for China to Elevate

Nuclear Prowess,” March 8, 2017.

219 Large majorities of South Koreans

say that relations with both the Unit-

ed States (94%) and China (85%) are

important to their security. Friedhoff,

“While Positive Toward US Alliance,

South Koreans Want to Counter Trump’s

Demands on Host-Nation Support.”

220 Jane Perlez, “Xi Jinping Arrives in North

Korea, with Many Eyes on Trump,”

New York Times, June 20, 2019; Joonho

Kim, “As Beijing Prepares Huge Food-

Aid Operation, Trains for North Korea

Stop Shipping Commercial Freight,”

Radio Free Asia, January 2, 2020.

221 Christian Shepherd and Xinning Liu,

“Beijing Deploys Role in Korean War in

Fight Against the US,” Financial Times,

October 19, 2020; Barack Obama, “Re-

marks by the President at 60th Anniver-

56 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

sary of the Korean War Armistice,” White

House Ofﬁce of the Press Secretary, July

27, 2013 (“we can say with conﬁdence that

war was no tie. Korea was a victory”).

222 Van Jackson, On the Brink: Trump, Kim,

and the Threat of Nuclear War (Cam-

bridge University Press, 2019), 202.

223 Ibid., 202–204. See also Clint Work,

“How to Constructively and Safely

Reduce and Realign US Forces on the

Korean Peninsula,” 38 North, August

25, 2020; Doug Bandow, “South Korea

Doesn’t Need U.S. Military Babysit-

ting,” Foreign Policy, October 2, 2020.

224 Letter from South Korean President

Syngman Rhee to General MacAr-

thur, July 15, 1950 (signed July 14);

Hwee Rhak Park, “The Transfer

of Wartime Operational Control in

Korea: History, Risks and Tasks from

a Military Perspective,” The Korean

Journal of International Studies 8,

no. 2 (December 2010), 327–351.

225 The U.S. Department of Defense

Dictionary of Military and Associat-

ed Terms deﬁnes OPCON (as of June

2020) as “the authority to perform

those functions of command over

subordinate forces involving organizing

and employing commands and forces,

assigning tasks, designating objectives,

and giving authoritative direction

necessary to accomplish the mission.”

226 Richard Stillwell, “Challenge and

Response in Northeast Asia of the

1980’s: The Military Balance,” in Strat-

egy and Security in Northeast Asia,

R. Foster, ed. (Crane Russak, 1979),

99, as quoted in Doug Bandow and

Ted Galen Carpenter, The U.S.-South

Korean Alliance: Time for a Change

(Transaction Publishers, 1992), 123.

227 “Chronology of Wartime Operational

Control in South Korea,” Yonhap News

Agency, October 24, 2014; Johannes

Nordin, “Taking Back Control: South

Korea and the Politics of OPCON

Transfer,” Institute for Security and

Development Policy, January 2020.

228 Who drives the delay of “OPCON

transfer” and for what purpose is a

politically sensitive question that resists

easy answers. Both South Korea and the

United States are divided on the issue.

In South Korea, liberal governments

have pushed for acceleration in the

name of sovereignty, while conservative

governments have announced delays in

the name of security. Certain studies have

also suggested a certain organizational

bias of the South Korean military for

the status quo. Meanwhile, Washington

has remained discreet, mindful of the

political sensitivity of the issue in South

Korea. It has at times welcomed Seoul

taking more responsibility for its defense,

at others emphasized the security risks

of a premature transfer – at times with

technical decisions that amounted in

practice to delays. Yoon Soyeon, “South

Korea’s Wartime Operational Control

Transfer Debate: From an Organizational

Perspective,” Journal of International

and Area Studies 22, no. 2 (December

2015), 89–108; Daniel Pinkston, “U.S.-

ROK Alliance Management: Opcon

Transition and ISR,” International Crisis

Group, June 18, 2014; Doug Bandow,

“South Korea: Forever Dependent on

America,” The National Interest, July 28,

2014; Korea Joongang Daily, “U.S. Mak-

ing Operation Control Transfer More

Difﬁcult,” August 24, 2020; Work, “Alter-

native Futures for the US-ROK Alliance.”

229 “US Ofﬁcial Met by Korean Anger,”

BBC News, December 10, 2002.

230 Ashley Rowland et al., “U.S. Bases

Blamed for Oil-Tainted Groundwater

in S. Korea,” Stars and Stripes, June 8,

2011; Gregory Elich, “The U.S. Mili-

tary’s Toxic Legacy in Korea,” Korea

Policy Institute, September 12, 2016.

231 “S Korea Activists Protest at Jeju Naval

Base,” BBC News, September 3, 2011;

Crystal Tai, “Jeju Jittery as US War-

ship Visit Reminds Islanders of Dark

Chapter in South Korea’s History,”

South China Morning Post, October

13, 2018. See also Gloria Steinem, “The

Arms Race Intrudes on Paradise,”

New York Times, August 6, 2011.

232 Elizabeth Shim, “Investigation Finds

U.S. Military Shipped Anthrax to

South Korea 15 Times,” United Press

International, December 17, 2015.

233 Jon Letman, “Postcard from Seongju’s

Anti-THAAD Protest,” The Diplomat,

June 29, 2017; Christine Kim, “Their Life

Disrupted, South Korean Grannies Vow

to Fight THAAD Till the End,” Reuters,

June 15, 2017; Yi Whan-woo, “THAAD

Missiles Replaced under Surprise Op-

eration,” Korea Times, May 29, 2020.

234 Kim Gamel, “UN Command Blocks

Field Survey of Inter-Korean Rail-

way,” Stars and Stripes, August 30,

2018; Gamel, “Rare Public Discord

Between US, S. Korea Raises Concern

About Rift”; “The UNC’s Control over

the DMZ Needs to Be Reevaluated,”

Hankyoreh, Editorial, October 6, 2020.

235 US-ROK Mutual Defense Trea-

ty, October 1, 1953, art. VI.

236 Kyung-ok Do and Jun-hyeong Ahn, The

Peace Agreement on the Korean Penin-

sula: Legal Issues and Challenges, Korea

Institute for National Uniﬁcation, 56–58.

237 Military and Paramilitary Activities in

and against Nicaragua (Nicaragua v. Unit-

ed States of America), Merits, Judgment,

I.C.J. Reports 1986, paras. 205, 265.

238 U.S.-ROK Mutual Defense Treaty,

October 1, 1953, art. IV (“The Repub-

lic of Korea grants, and the United

States of America accepts, the right

to dispose United States land, air and

sea forces in and about the territory of

the Republic of Korea as determined

by mutual agreement.”); Agreement

Under Article IV of the Mutual De-

fense Treaty (Status of Forces Agree-

ment), July 9, 1966, as amended.

239 James Dobbins, “Declaring an End

to the Korean War,” The RAND Blog,

February 28, 2019; Don Kirk, “A North

Korean Shift on Opposing U.S. Troops?”

New York Times, August 10, 2000; Mark

Landler and Choe Sang-hun, “North

Korea Drops Troop Demand, But U.S.

Reacts Warily,” New York Times, April 19,

2018; Selig S. Harrison, Korean Endgame:

A Strategy for Reuniﬁcation and U.S. Dis-

engagement (Princeton University Press,

2002), 168–173 (citing ﬂexibility on US

troops expressed by First Deputy Foreign

Minister Kang Sok Ju, North Korean

General Ri Chan Bok, Foreign Minister

Kim Yong Nam, Foreign Ministry Policy

Planning Director Kim Byong Hong,

and later Foreign Minister Paek Nam

Sun and Supreme Leader Kim Jong Il).

240 Military and Paramilitary Activities in

and against Nicaragua (Nicaragua v.

United States of America), Merits, Judg-

ment, I.C.J. Reports 1986, paras. 205, 265.

241 Armed Activities on the Territory

of the Congo (Democratic Repub-

lic of the Congo v. Uganda), Judg-

ment, I.C.J. Reports 2005, para. 51.

242 The President as Commander-in-Chief

of the armed forces has the authority to

decide to reduce or withdraw troops, but

Congress has adopted provisions that

could restrict the availability of funds

for withdrawal from Korea. The White

House has questioned the constitution-

ality of such restrictions. Larry Niksch,

Special Report: Potential Sources of

Opposition to a U.S. Troop Withdrawal

from South Korea, National Commit-

tee on North Korea, April 2019; Ashley

Deeks, “Can Congress Constitutionally

Restrict the President’s Troop With-

drawals?” Lawfare, February 6, 2019.

243 U.S.-ROK Mutual Defense Treaty, Oc-

tober 1, 1953, art. VI; Agreement Under

Article IV of the Mutual Defense Treaty,

July 9, 1966, as amended, arts. 2.2, 19, 28.

244 Sukjoon Yoon, “6 Myths About OP-

CON Transfer and the US-South Korea

Alliance,” The Diplomat, September 25,

2019 (“Peacetime OPCON is essen-

tially descriptive compromise that

was adopted in 1994 to characterize

the complicated chain of command

between the ROK and USFK”).

245 Under the current “conditions-based OP-

CON transition plan,” wartime OPCON

would move to a bilateral but Korean-led

“Future Combined Forces Command.”

Joint Communique of the 46th ROK-U.S.

Security Consultative Meeting, October

23, 2014, para. 11; Joint Communique of

the 50th ROK-U.S. Security Consultative

Meeting, October 31, 2018, paras. 8, 9.

246 ROK Constitution, art. 74(1) (“The

President shall be the Command-

er-in-Chief of the Armed Forces”).

247 The parties to the Armistice conformed

to this classical understanding of the

notion of armistice by specifying in the

preamble that the instrument’s objective

was to “insure a complete cessation of

hostilities and of all acts of armed force

in Korea until a ﬁnal peaceful settlement

is achieved.” Para. 62 provides that the

Armistice will remain in effect until

ENDNOTES 57

“expressly superseded” in “an appropri-

ate agreement for a peaceful settlement

at a political level between both sides.”

Although armistices may end implicitly,

the inclusion in a peace agreement of an

explicit clause recognizing the disso-

lution of the Armistice would provide

greater legal certainty and maximize the

beneﬁcial impact of a peace agree-

ment on security. See also Oppenheim,

International Law, para. 231 (“[Armi-

stices] are in no wise to be compared

with peace, and ought not to be called

temporary peace, because the condition

of war remains between the belligerents

themselves, and between the belliger-

ents and neutrals on all points beyond

the mere cessation of hostilities.”).

248 See also UN General Assembly Reso-

lution 3390A, para. 2, 3390B, para. 2,

Nov. 18, 1975; Inter-Korean Agreement

on Reconciliation, Non-aggression

and Exchanges and Cooperation,

December 13, 1991, art. 5; UN Secu-

rity Council President Statement S/

PRST/1996/42, October 15, 1996.

249 Inter-Korean Agreement on Reconcilia-

tion, Non-aggression and Exchanges and

Cooperation, December 13, 1991, art. 11.

250 UN Secretary General Boutros

Boutros-Ghali stated in a letter to the

DPRK on June 24, 1994, that the United

States alone has the authority to “decide

on the continued existence or the disso-

lution of the United Nations Command,”

that “the Security Council did not estab-

lish the uniﬁed command as a subsidiary

organ under its control, but merely

recommended the creation of such a

command, specifying that it be under the

authority of the United States,” and that

“the dissolution of the uniﬁed command

does not fall within the responsibility of

any United Nations organ but is a matter

within the competence of the Govern-

ment of the United States.” Selig S. Har-

rison, Korean Endgame: A Strategy for

Reuniﬁcation and U.S. Disengagement

(Princeton University Press, 2002), 163.

251 Kyung-ok Do and Ahn Jun-hyeong, The

Peace Agreement on the Korean Penin-

sula: Legal Issues and Challenges, Korea

Institute for National Uniﬁcation, 37–51.

252 Adopted by a truncated Security Council

in response to the North Korean offen-

sive of June 1950, these three resolutions

recommended furnishing “assistance”

to South Korea with forces under the

“uniﬁed command” of the United States

to (1) “repel the armed attack” and (2)

“restore international peace and secu-

rity.” UN Security Council Resolution

82, June 25, 1950; UN Security Council

Resolution 83, June 27, 1950; UN Security

Council Resolution 84, July 7, 1950.

253 UN General Assembly Resolution 376

is sometimes invoked as additional

justiﬁcation for the invasion of the North.

The resolution recommended that “all

appropriate steps be taken to ensure

conditions of stability throughout Korea.”

Interpreting “stability” as justifying

invasion of the North is just as problem-

atic as interpreting “peace and securi-

ty” in that way. UN General Assembly

Resolution 376 (V) of October 7, 1950.

254 UN Security Council Resolu-

tion 702, August 8, 1991.

255 Bo-eun Kim, “US-controlled UNC Puts

Brakes on Inter-Korean Railway Inspec-

tions,” The Korea Times, August 30, 2018;

Gamel, “UN Command Blocks Field

Survey of Inter-Korean Railway”; Park

Kyung-man, “UN Restricts Establishment

of Ofﬁce of Gyeonggi Vice Governor for

Peace at Dora Observatory in DMZ,”

Hankyoreh, November 11, 2020.

256 While concerns have been raised on

whether certain aspects of inter-Korean

relations could conﬂict with sanctions

against North Korea, several US/UNC

actions have been perceived in South

Korea as interference in projects that

do not per se violate sanctions, such as

railway inspections or tourism into the

North. Ji-won Noh, “UN Command Only

Has Authority to Block Military-Related

Visits to DMZ, S. Korean Defense Min-

istry Says,” Hankyoreh, October 5, 2020;

Hyonhee Shin, “South Korea’s Push for

Tourism in North Poses Tricky Balanc-

ing Act,” Reuters, January 24, 2020.

257 The Inter-Korean Joint Military Commit-

tee is an organ created by the Inter-Kore-

an Agreement on the Implementation of

the Historic Panmunjom Declaration in

the Military Domain, September 19, 2018.

258 UNC dissolution would end the

Agreement regarding the Status of the

United Nations Forces in Japan (UN GOJ

SOFA), which gives UN Sending States

that are party to it access to UNC-Rear

bases in Japan. This represents today

only a circumstantial use that was not

imagined at the time the agreement

was concluded, such as when, in April

2018, Australian and Canadian patrol

aircraft used the Kadena base to monitor

North Korean smuggling at sea. Even

if the UN GOJ SOFA were dissolved,

the United States would still have

base access under the US-Japan SOFA

framework. See also Yasuaki Chijiwa,

“The ‘Termination’ of the Korean War,

the ‘Dissolution’ of the United Nations

Forces and their Inﬂuence on Japan,”

National Institute for Defense Studies

Commentary no. 80, July 3, 2018, 4.

259 Other sending states withdrew most or

all of their forces in the 1950s, and there

were only 300 personnel left by 1975.

Eleanor C. McDowell, Digest of United

States Practice in International Law 1975

(Department of State, Ofﬁce of the Legal

Adviser, 1976), 824 (citing Press Release

USUN 151(75), November 18, 1975).

260 Ibid., 820 (citing Letter from the U.S.

Permanent Representative to the United

Nations addressed to the UN Security

Council, S/11737, June 27, 1975), https://

babel.hathitrust.org/cgi/pt?id=mdp.39

015051412578&view=1up&seq=850).

261 Exchange of Notes for the Establish-

ment of the U.S.-ROK Combined Forces

Command, October 17, 1978. See also U.S.

National Security Decision Memorandum

251, March 29, 1974 (setting out planned

measures regarding the termination

of the U.N. Command in Korea).

CHAPTER V

262 Yoshimi Yoshiaki, Comfort Women:

Sexual Slavery in the Japanese Mil-

itary During World War II (Colum-

bia University Press, 2002), 93.

263 Gwi-Ok Kim, “The Effect of Japanese

Colonialism on the Comfort Women Sys-

tem of the Korean Military,” Society and

History, 103 (2014), 85–116 (in Korean);

Jeong-Mi Park, “A Study on Prostitution

Policies during the Korean War: Focusing

on ‘Comfort Stations’ and ‘Comfort Wom-

en,’” Journal of Korean Women’s Studies

27, no. 2 (2011), 35–72 (in Korean).

264 Yoshiaki, Comfort Women; Katharine

H. S. Moon, Sex Among Allies: Military

Prostitution in U.S.–Korea Relations

(Columbia University Press, 1997), 19.

265 Moon, Sex Among Allies, 31.

266 Jeong-Mi Park, “A Historical Sociology

of the Korean Government’s Policies on

Military Prostitution in U.S. Camptowns,

1953–1995,” Korean Journal of Sociol-

ogy 49, no. 2 (2011), 1–33 (in Korean).

267 Ibid.

268 Choe Sang-Hun, “Ex-Prostitutes

Say South Korea and U.S. En-

abled Sex Trade Near Bases,” New

York Times, January 7, 2009.

269 Moon, Sex Among Allies, 2.

270Adem Elveren and Valentine M. Moghad-

am, “The Impact of Militarization on Gender

Inequality and Female Labor Force Partic-

ipation,” Working Papers 1307, Economic

Research Forum, revised August 21, 2019.

271 International Labour Organiza-

tion, ILOSTAT database. Data

retrieved on June 21, 2020.

272 “Glass-ceiling Index,” 2020, The

Economist, https://www.economist.

com/graphic-detail/2020/03/04/

iceland-leads-the-way-to-wom-

ens-equality-in-the-workplace.

273 Ibid.

274 “Daily Lives of North Korean Women

and Gender Politics,” Korea Institute

for National Uniﬁcation, 2020.

275 Simona Sharoni, “Militarism and

Gender‐Based Violence,” in The Wiley

Blackwell Encyclopedia of Gender and

Sexuality Studies, eds. Nancy A. Naples

, Renee C. Hoogland, Maithree Wick-

ramasinghe, and Wai Ching Angela

Wong (Wiley-Blackwell, 2016).

276 Åsa Ekvall, “Masculinities and Mil-

itarism, Academics and Activists,”

Gender and Militarism: Analyzing

the Links to Strategize for Peace,

http://www2.kobe-u.ac.jp/~alexroni/

IPD%202015%20readings/IPD%20

2015_9/Gender%20and%20Milita-

rism%20May-Pack-2014-web.pdf.

58 PATH TO PEACE: THE CASE FOR A PEACE AGREEMENT TO END THE KOREAN WAR

277 Jae Yop Kim, Sehun Oh, and Seok

In Nam, “Prevalence and Trends in

Domestic Violence in South Korea:

Findings from National Surveys,”

Journal of Interpersonal Violence,

31, no. 8 (May 2016), 1554–76.

278 Olivia Schieber, “South Korea Needs

to Contend with Sexual Violence,”

Foreign Policy, August 10, 2020.

279 Yenni Kwok, “The Three Places with

the Highest Rate of Female Homi-

cides on Earth Are All in Northeast

Asia,” TIME, February 13, 2017.

280 “‘You Cry at Night but Don’t Know

Why’: Sexual Violence Against

Women in North Korea,” Human

Rights Watch, November 1, 2018.

281 Mega Mohan, “Rape and No Pe-

riods in North Korea’s Army,”

BBC, November 21, 2017.

282 Yasmin Husein Al-Jawaheri, Women in

Iraq: The Gender Impact of International

Sanctions (London: I. B. Tauris), 136, 139.

283 Julia Devin and Jaleh Dashti-Gibson,

“Sanctions in the Former Yugoslavia:

Convoluted Goals and Complicated Con-

sequences,” in Political Gain and Civilian

Pain: Humanitarian Impact of Economic

Sanctions, eds. Thomas G. Weiss, David

Cortright, George A. Lopez, and Larry

Minear (Rowman and Littleﬁeld, 1997).

284 Donald M. Seekins, “Burma and US

Sanctions: Punishing an Authoritarian

Regime,” Asian Survey, 45, no. 3, 437–452.

285 Féron et al., The Human Costs

and Gendered Impact of Sanc-

tions on North Korea.

286 “Report of the Detailed Findings of the

Commission of Inquiry on Human Rights

in the Democratic People’s Republic

of Korea,” United Nations Human

Rights Council, February 7, 2014.

287 Erin Engstran, Caitlin Flynn, and

Meg Harris, “Gender and Migra-

tion from North Korea,” Journal

of Public & International Affairs,

https://jpia.princeton.edu/news/

gender-and-migration-north-korea.

288 “‘You Cry at Night but Don’t Know

Why,’” Human Rights Watch.

289 Hyung Eun Kim, “South Korea Intelli-

gence Ofﬁcers Accused of Raping Defec-

tor from North,” BBC, December 5, 2019.

290 Jeea Yang, “Struggles of Resettlement:

North Koreans in South Korea,” Psy-

chology International, September 2018,

https://www.apa.org/international/

pi/2018/09/north-koreans-resettlement.

291 The second to fourth period-

ic reports were combined in one

report, which DPRK submit-

ted to the committee in 2016.

292 Appiagyei-Atua Kwadwo, “United Na-

tions Security Council Resolution 1325

on Women, Peace, and Security – Is It

Binding?” Human Rights Brief 18, no. 3

(2011), 2–6; Natasha Lewis et al., “Making

the Normative Case: Implementing Secu-

rity Council Resolution 1325 as Part of a

Legal Framework on Women, Peace and

Security,” LSE Pro Bono Matters, 2015.

293 Lewis et al., “Making the Normative

Case”; Aisling Swaine and Catherine

O’Rourke, “Guidebook on CEDAW Gen-

eral Recommendation No. 30 and the UN

Security Council Resolutions on Women,

Peace, and Security,” UN Women, 2015.

294 WILPF, “National Action Plans

for the Implementation of UNSCR

1325 on Women, Peace and Secu-

rity,” 2020, https://www.peace-

women.org/member-states.

295 Jana Krause, Werner Krause, and Piia

Braenfors, “Women’s Participation in

Peace Negotiations and the Durability

of Peace,” International Interactions

(August 2018); Marie O’Reilly, Andrea

Ó Súilleabháin, and Thania Paffenholz,

Reimagining Peacemaking: Women’s

Roles in Peace Processes (International

Peace Institute, 2015); Thania Paffen-

holz et al., Making Women Count – Not

Just Counting Women: Assessing

Women’s Inclusion and Inﬂuence on

Peace Negotiations (Inclusive Peace and

Transition Initiative and UN Women,

2016); Laurel Stone, “Women Transform-

ing Conﬂict: A Quantitative Analysis of

Female Peacemaking,” SSRN Electron-

ic Journal (2014), SSRN 2485242.

296 Jillian Emma Grant Abballe, Fotei-

ni Papagioti, Dorie Reisman, Nicole

Smith, and Agnieszka Fal-Dutra

Santos, “Gender-sensitive Provisions

in Peace Agreements and Women’s

Political and Economic Inclusion

Post-conﬂict,” Global Network of

Women Peacebuilders and NYU

School of Professional Studies, 2020.

297 Valerie Hudson, Bonnie Ballif-Span-

vill, Mary Caprioli, and Chad F.

Emmett, Sex and World Peace (Co-

lumbia University Press, 2012), 205.

298 Desiree Nilsson, “Anchoring the

Peace: Civil Society Actors in Peace

Accords and Durable Peace,” Interna-

tional Interactions (2012), 243–266.

299 Anjali Kaushlesh Dayal and Agathe

Christien, “Women’s Participa-

tion in Informal Peace Processes,”

Global Governance: A Review of

Multilateralism and International

Organizations 26, no. 1 (2020).

300 Miriam J. Anderson, Windows of

Opportunity: How Women Seize Peace

Negotiations for Political Change (Ox-

ford University Press, 2016); Kaushlesh

Dayal and Christien, “Women’s Partic-

ipation in Informal Peace Processes.”

301 Jacqui True and Yolanda Riveros-Mo-

rales, “Towards Inclusive Peace: Analys-

ing Gender-sensitive Peace Agreements

2000–2016,” International Political

Science Review 40, no. 1 (2019), 23–40.

302 O’Reilly, Ó Súilleabháin, and Paffen-

holz, “Reimagining Peacemaking.”

303 True and Riveros-Morales, “To-

wards Inclusive Peace.”

304 Full name in Korean was “아시아 여

성과 연대하는 조선녀성협회”.

305 Full name in Korean was “조

선일본군성노예 및 강제련행

피해자문제대책위원회” .

306 Féron et al., The Human Costs

and Gendered Impact of Sanc-

tions on North Korea.

307 Congressional Research Service,

Treaties and Other International

Agreements: The Role of the United

States Senate, January 2001, 5, 147.

ANNEX I

308 Ibid., 25–26.

309 U.S. Constitution, art 1, sec.

8, and art. 2, sec. 2.

310 Regarding a proposal to explicitly grant

Congress the power to declare both

war and peace, Oliver Ellsworth stated

that “(t)here is a material difference

between the cases of making war and

making peace. It should be easier to get

out of war, than into it.” George Mason

added that “(h)e was for clogging, rather

than facilitating war; but for facilitat-

ing peace.” The proposal to add “and

peace” to the Declare War clause was

subsequently unanimously rejected.

This was an explicit deviation from the

Articles of Confederation, under which

Congress possessed both the war and

peace powers. James Madison, Journal

of the Federal Convention, ed. E. H.

Scott (Scott, Foresman, 1898), 548–549.

311 U.S. Constitution, art. 2, sec. 2.

312 Congressional Research Service, Treaties

and Other International Agreements:

The Role of the United States Sen-

ate, January 2001, 4–5, 17–18, 22.

313 Ibid., 4–5, 17–18.

314 Ibid., 43.

315 The Senate rejected the Treaty of Ver-

sailles twice: on November 19, 1919, and

on March 19, 1920. Congress adopted on

July 2, 1921, the Knox-Porter resolu-

tion declaring the end of the state of

war with Germany. A peace agreement

separate from the Treaty of Versailles

was signed between the United States

and Germany on August 25, 1921, and

President Harding proclaimed peace on

November 14, 1921, declaring the war

to have terminated on July 2, 1921.

316 The Senate gave its advice and con-

sent through a resolution on March

20, 1952, and the treaty was ratiﬁed by

President Truman on April 15, 1952.

See United States Proclamation of

Peace with Japan, April 28, 1952.

317 Agreement on Ending the War and

Restoring Peace in Viet-Nam, January

27, 1973; Stephen P. Mulligan, Interna-

tional Law and Agreements: Their Effect

ENDNOTES 59

upon U.S. Law, Congressional Research

Service, updated September 9, 2018, 8.

318 Bill Clinton, Remarks Announcing the

Normalization of Diplomatic Rela-

tions with Vietnam, July 11, 1995.

319 ROK Constitution, art. 73.

320 ROK Constitution, art. 60.

321 Inter-Korean Agreement on Reconcil-

iation, Non-Aggression and Exchanges

and Cooperation, December 13, 1991.

322 See, e.g., ROK Constitutional Court, 98

Hun-Ba 63, July 20, 2000. See also Hyo-

Won Lee, “The Current State and Re-

quired Modiﬁcations of the Inter-Korean

Exchange and Cooperation Act,” Journal

of Korean Law 11 (December 2011), 55, 58.

323 ROK Supreme Court, 98 Du 14525, July

23, 1999. See also Hyo-Won Lee, “The

Current State and Required Modiﬁ-

cations of the Inter-Korean Exchange

and Cooperation Act,” 55, 58.

324 Seong-ho Jhe, “Four Major Agreements

on Inter-Korean Economic Cooper-

ation and Legal Measures for Their

Implementation,” Journal of Korean

Studies 5, no. 1 (2005), 126, 130.

325 Ibid., 129.

326 ROK Development of Inter-Korean

Relations Act, arts. 21(1) and 21(2).

327 Ibid., art. 21(3).

328 Inter-Korean Agreement on the

Implementation of the Historic

Panmunjom Declaration in the Mil-

itary Domain, September 19, 2018.

329 KBS World, “Pyongyang Declara-

tion to Be Ratiﬁed without Assem-

bly Consent,” October 22, 2018.

330 DPRK Socialist Constitution, art. 103(4).

331 Ibid., art. 116(14).

332 For a list of treaties North Korea is a

part of, see, e.g., the “North Korea in

the World Database,” last accessed

November 16, 2020, https://www.

northkoreaintheworld.org/multi-

lateral/international-treaties.

333 Vienna Convention on the Law of

Treaties, May 23, 1969, art. 11 (list-

ing different possibilities of ex-

pressing consent to be bound).

334 Under the Vienna Convention on the

Law of Treaties, most of which is con-

sidered today as representing custom-

ary international law, consent may be

invalidated if and only if the violation

was “manifest and concerned a rule of

its internal law of fundamental impor-

tance.” Vienna Convention on the Law

of Treaties, May 23, 1969, art. 46(1).

EXTERNAL

CONTRIBUTIONS

335 Mira Rapp-Hooper, “America Is Not

Going to Denuclearize North Korea,”

The Atlantic, November 29, 2017, https://

www.theatlantic.com/international/

archive/2017/11/north-korea-icbm-kim-

trump-nuclear/547040; Adam Mount

and Ankit Panda, “North Korea Is Not

Denuclearizing,” The Atlantic, April

21, 2018, https://www.theatlantic.com/

international/archive/2018/04/north-

korea-kim-jong-un-trump-nuclear-sum-

mit-weapons-missiles/558620; Vipin

Narang and Ankit Panda, “North Korea

Is a Nuclear Power. Get Used to It.,” The

New York Times, June 14, 2018, Opinion,

https://www.nytimes.com/2018/06/12/

opinion/trump-kim-summit-denu-

clearization-north-korea.html.

336 Furthermore, any momentum achieved

as part of a nuclear agreement or a

peace regime would not be irreversible.

With or without further progress that

demonstrates additional value to both

Pyongyang and Washington, North Korea

might very well defect from an agree-

ment and resume advancements in its

nuclear arsenal. This principle, which is

widely shared by US analysts, stands in

contrast to remarks made by President

Moon and certain other ROK ofﬁcials.

Park Han-na, “Dismantling Yongbyon Is

Irreversible Advance in NK’s Denucle-

arization: Moon,” The Korea Herald,

June 26, 2019, http://www.koreaherald.

com/view.php?ud=20190626000764.

337 This is the primary assessment of Adam

Mount and Andrea Berger, “Report of the

FAS International Study Group on North

Korea Policy” (Federation of American

Scientists, 2019), https://fas.org/wp-con-

tent/uploads/media/FAS-DPRK-SG.pdf.

338 UN Ofﬁce for the Coordination of

Humanitarian Affairs, “2018 DPR

Korea Needs and Priorities,” March

2018, http://kp.one.un.org/content/

dam/unct/dprk/docs/unct_kp_NP2018.

pdf#page=10; Hyonhee Shin, “As Food

Crisis Threatens, Humanitarian Aid for

North Korea Grinds to a Halt,” Reuters,

August 20, 2018, https://www.reuters.

com/article/us-northkorea-usa-aid-in-

sight/as-food-crisis-threatens-human-

itarian-aid-for-north-korea-grinds-

to-a-halt-idUSKCN1L529H; John

Park and Jim Walsh, “Stopping North

Korea, Inc.: Sanctions Effectiveness

and Unintended Consequences” (MIT

Security Studies Program, August

2016), https://www.belfercenter.org/

sites/default/ﬁles/legacy/ﬁles/Stop-

ping%20North%20Korea%20Inc%20

Park%20and%20Walsh%20.pdf.

339 For the argument that stability should

be a guiding objective of allied de-

terrence posture, see Adam Mount

and Mira Rapp-Hooper, “Nuclear

Stability on the Korean Peninsula,”

Survival 62, no. 1 (2020), 39–46.

340 For proposals on conventional arms

control, see Van Jackson, “Risk Real-

ism: The Arms Control Endgame for

North Korea Policy” (Center for a New

American Security, September 24, 2019),

https://www.cnas.org/publications/

reports/risk-realism; John K. Warden

and Ankit Panda, “Goals for Any Arms

Control Proposal with North Korea,”

Bulletin of the Atomic Scientists,

February 13, 2019, https://thebulletin.

org/2019/02/goals-for-any-arms-con-

trol-proposal-with-north-korea.

341 Jeffrey Lewis, “North Korea Is Keep-

ing Its Nukes. That Seems to Be Fine

with Trump Now.,” Washington Post,

July 8, 2019, https://www.washing-

tonpost.com/outlook/2019/07/08/

north-korea-is-keeping-its-nukes-that-

seems-be-ﬁne-with-trump-now.

342 Joe Biden, “Why America

Must Lead Again,” Foreign Af-

fairs, March/April 2020.

343 Mark Hannah and Caroline Gray, “Di-

plomacy & Restraint: The Worldview

of American Voters,” Eurasia Group

Foundation, September 2020, https://

egfound.org/stories/independent-amer-

ica/diplomacy-and-restraint#fullreport.

344 Michael D. Swaine, Jessica J. Lee, Rachel

Esplin Odell, “Toward an Inclusive and

Balanced Regional Order: A New US

Strategy in East Asia,” Quincy Institute

for Responsible Statecraft, January 11,

2021, https://quincyinst.org/2021/01/11/

toward-an-inclusive-balanced-regional-

order-a-new-u-s-strategy-in-east-asia/

345 Narushige Michishita, “Allianc-

es after Peace in Korea,” Surviv-

al 41, no. 3 (August 2006).

346 Mari Yamaguchi, “Japan PM Tells South

Korea It’s Time to Fix Strained Ties,”

Associated Press, September 24, 2020.

347 “South Korea’s Legislative Election

Results and Implications for U.S.–

South Korea Relations,” webinar

co-hosted by the Quincy Institute and

East Asia Foundation, May 27, 2020,

https://quincyinst.org/2020/05/27/

next-week-south-koreas-legisla-

tive-election-results-and-their-im-

pact-on-u-s-south-korea-relations.

348 Ibid.