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Northeast Asia Peace Initiative
W.S. Choi: The Principles and Preconditions for Korean Peace and Unification
Written by Woonsang Choi, Professor of International Law and Relations, Kyung Hee University, Seoul, Korea
Monday, December 17, 2007
According to press reports (The Korea Times, May 10, 2007, p. 4; The Korea Herald, May 10, 2007, pp. 1 and 3; and the Dong-A Ilbo, May 11, 2007, p. 1), US Ambassador to Korea Alexander Vershbow announced on May 9, 2007, that on the condition that North Korea carries out the terms of the February 13, 2007 agreement on the denuclearization of North Korea, the United States was ready to declare the end of the Korean War before the Asia-Pacific Economic Cooperation Conference in Australia in September and to sign a peace treaty to establish a permanent peace regime in Korea. He further declared that the United States was also prepared to begin the process of establishing diplomatic relations with North Korea. The implications of Ambassador Vershbow’s statement require further scrutiny, for there are certain principles and preconditions to be met for permanent peace in Korea and the unification of the country itself.
Peace regime in Korea
Certainly, it is most urgent to end the current state of war symbolized by the Korean Armistice Agreement. In this regard, it is a time-honored rule of international law that war is legally ended by the conclusion of a peace treaty at a peace conference attended by all the belligerents concerned. A political statement such as the one mentioned by Ambassador Vershbow does not end it.
It may be recalled that such an attempt at a peace conference was already made in 1954 in Geneva. The participating states included the sixteen UN Member States which fought in the Korean War in accordance with the Security Council resolutions of June 25, June 27, and July 7, 1950 (the United States, Republic of Korea, Australia, Belgium, Canada, Colombia, Ethiopia, France, Greece, Luxembourg, The Netherlands, New Zealand, The Philippines, Thailand, Turkey and the United Kingdom). The Communist side was represented by North Korea, Communist China, and the Soviet Union (by special invitation).
Geneva Conference and the principle of self-determination of peoples
At the 1954 Geneva Conference on Korean Unification, the Communist side failed to accept the United Nations principles of unification, which included:
- The United Nations has the competence and authority to bring about a reasonable Korean settlement.
- Genuinely free general elections, with proportionate representation for North and South Korea, would be held under UN supervision.
- The forces of the United Nations would remain in Korea until the mission of the United Nations had been accomplished by the creation of a “unified, independent, and democratic Government of Korea.”
In accordance with these United Nations principles, Republic of Korea (ROK) Foreign Minister Y.T. Pyun presented on May 22, 1954, the more specific proposal to advance the possibility of the peaceful unification of Korea.
The Pyun proposal, which consisted of fourteen points, called principally for
- Holding free elections in North and South Korea under United Nations supervision within six months on the basis of a secret ballot and universal adult suffrage
- Taking a census under United Nations supervision with a view to apportioning the number of representatives in exact proportion to the population in the election areas
- Complete freedom of movement and speech for United Nations supervisory personnel and for election candidates
- Maintenance in force of the constitution of the Republic of Korea subject to amendment by the all-Korea legislature to be convened in Seoul immediately after the elections
- Completion of the withdrawal of Chinese Communist troops one month in advance of the election date
- Commencement of a withdrawal of United Nations forces which would be completed when complete control had been achieved throughout Korea by the unified government and certified by the United Nations
- Guarantee of the territorial integrity and independence of a unified Korea by the United Nations
This ROK proposal, which seeks the unity and security of Korea on the basis of genuine self-determination by the Korean people, has been the official unification policy of the ROK government. It still remains in force and differs radically from the “Joint Declaration” of President Kim Dae-jung and Chairman Kim Jong-il, dated June 15, 2000, which foresees the unification of Korea under “confederation” or “federation of a lower stage.”
The Joint Declaration is not based on the rule of self-determination by the people as enunciated by the United Nations Charter (Article 1, para. 2) and the 1970 UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations. This UN Declaration was adopted unanimously by the General Assembly on October 24, 1970, and thus has become a firm rule of customary international law as it indicates the extensive state practice and opinio juris of the international community.
The legal and historical significance of the UN military action in the Korean War
Although the United Nations military action in Korea to repel the unprovoked aggression of North Korea was not carried out by the UN forces provided under Article 43 of the UN Charter, the forces from the UN Member States were properly established as the UN Forces by the Security Council Resolutions of June 25, June 27, and July 7, 1953. The Soviet absence did not count as a veto by the longstanding practice of the United Nations. Therefore, the military action has been rightly characterized as the first collective security action by the United Nations under the leadership of the United States.
When the Soviet Union began to paralyze the Security Council from August 1950 through its veto, the United Nations responded by adopting “The Uniting for Peace Resolution” of the General Assembly on November 3, 1950, which provided that when the Security Council was blocked by veto from exercising its “primary responsibility” for the maintenance of international peace and security, the General Assembly can take over the same function from the Security Council. In fact, the Uniting for Peace Resolution has played an important role in resolving several international disputes, including the Middle East, Congo Question, Afghanistan, and Namibia.
The United Nations has a long list of dates to commemorate important events in its history. Because of the important contribution that the United Nations made through its Korean action it is worth commemorating the historical event as “Korean War Memorial Day” by adopting a proper resolution of the General Assembly.
Reinforcing the US-ROK alliance
Article 1 of the Constitution of the Republic of Korea declares:
(1) The Republic of Korea shall be a democratic republic.
(2) The sovereignty of the Republic of Korea shall reside in the people, and all state authority shall emanate from the people.
On the other hand, Article 72 provides for a national referendum on important national policy: “The President may submit important policies relating to diplomacy, national defense, unification and other matters relating to the national destiny to a national referendum if he deems it necessary.”
The important precondition for a permanent peace in Korea is to maintain the strongest possible US-ROK alliance, as expressed in the US-ROK Mutual Defense Treaty. The Treaty provides for the US-ROK Combined Forces Command to implement the Mutual Defense Treaty, which maintains several effective contingency measures.
The current administration of President Roh Moo-hyun, acting on a misguided notion of self-reliance such as “independent exercise of operational control,” has asked the Combined Forces Command to be dissolved by 2012. To the writer, this policy is incomprehensible at the least and is against the true national interests of the Korean people. Geopolitically, Korea is surrounded by such major powers as China, Russia, and Japan. It is beyond the national capacity of Korea to meet the ongoing challenges from these major powers. Korea needs a strong ally at present and in the future. Such an ally is none other than the United States.
In international relations or diplomacy, it is the supreme national policy of any government to guarantee its political independence and territorial integrity. In view of the ineffectiveness of the collective security system at the present time, the alternative solution is to resort to the age-old balance of power theory. We have to learn from the 1910 annexation of Korea by Japan. At that time, Korea had no ally. Even the United States stood on the side of Japan through the Taft-Katsura Agreement. One theory explains that the Agreement was motivated by US concern for the safety of the Philippines, then a colony of the United States.
One way to reinforce the alliance between the United States and South Korea is to revive the US-ROK Combined Forces Command, which has been the modality for the alliance, and maintain the Command until the time Korea is unified. In order to accomplish it, the next administration of South Korea should place the issue before a national referendum. Then, on the basis of an affirmative result of the national referendum, the Government of the Republic of Korea should renegotiate the reinstatement of the US-ROK Combined Forces Command. It is certain that the United States will follow the wishes of the Korean people.
Concurrently, the United Nations Command established by the Security Council resolution of July 7, 1950, during the Korean War should be reinvigorated to supplement, as far as possible, the functions of the US-ROK Combined Forces Command. Fortunately, the United Nations Command was created by the Security Council. It can be abolished only by the Security Council—not by any government.
Conclusion
The important consideration for a permanent peace in Korea is the prior accomplishment of denuclearizing North Korea. If the denuclearization process now under way through the Six-Party Talks does not succeed, it will adversely affect the entire peace regime process.
In this regard, it will be very essential that North-South contacts in Korea should be coordinated with the pace of the denuclearization process. North-South exchanges of various kinds, known commonly as the “Sunshine Policy,” consist of humanitarian relief, economic aid, and other forms of assistance to North Korea by South Korea. The policy was initiated by former President Kim Dae-jung and is continued by the current government of President Roh Moo-hyun. So far, it has taken the form mostly of unilateral assistance from South to North. No significant reciprocity has resulted from the Northern side.
It cannot be overemphasized that the procedure for unifying Korea should be based on the principle of self-determination of the Korean people in whom the sovereignty resides. No other procedure is acceptable.
The strong and unchanging alliance between the United States and the Republic of Korea is most essential in establishing and maintaining a permanent peace regime in Korea. The alliance will assure that the eventual unification of Korea will be through a democratic process.
Last but not least is the importance of effecting the improvement of human rights in North Korea before the normalization of relations takes place between the United States and North Korea. In fact, it should be the condition for proceeding. On the other hand, the first step in the entire process is to end the current state of war by the signing of a peace treaty by all the belligerents involved in the Korean War, including the sixteen UN Member States. They pledged, on the day of the Korean Armistice, to fight again, if there should be a renewal of armed attack by North Korea.
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