The Operation of the Korean Armistice Agreement

• Author: Major Ernest A. Simon
• Pages: 03

1. INTRODUCTION

   A. PURPOSE AND SCOPE OF THE INVESTIGATION

   The alarming increase in violations of the Korean Armiatice Agreement' by North Korea during 1967, as compared with previous years, posed a threat to international peace for the United States sufficient to bring the matter before the Security Council of the United Nations.' The incidence of infiltration by land and sea into South Korea and the casualties caused by such inflltration raised anew questions concerning the current legal status of the AnnisCce Agreement in international To a nation fully

   '

   Thia article was adasted from a theala mesented to The Judm Advocate General'e Sohool, U.S. -Army, Charbttea&le, Virginia, while-the authorwas a member of the Seyenteenth Advanced Courae. The opinions and con-flusion8 nresented herein ale those of the author and do not n e c ~ ~ ~ ~ r i l v represen; the view8 of The Judge Ad;oeate &&a Sehooi or an9 ,th&mvernmental sgene9.

   '*JAGC, U.S. Army: Offlee of the Staff Judm Advoeste, U.S. A m 9 Air Defense Center, Fort Bliii, Teras: B.S. E.D., 1861. Loyola University, NCWOrlean% Louisiana; LL.B., 1861, University of Texas: member of the bim of the State of Texas and the Supyeme Court and Court of Criminal Ap. peals, Texas.

   'Agreement Betareen the Commander-in.Chief. U.N. Command and the Supreme Commander, Korean People's Army. and the Commander of the Chinese People's Valunteera. Coneerning a Militav Armistice in Korea,[I9611 4 U.S.T. 234, T.I.A.S. Na. 2182 (27 Jui. 1868) [hereafter cited PI T.I.A.S. NO.

   21821. '22 U.N. SCOR, Supp., 0et.-Dec. 1961, at 191, U.N. Doc. SISll? (1881). 'The folloaing pueitims and comment8 an the Korean Armiatice were made by H. Phleger, Legal Adviser, US. Department of State. in 1856: (

   1. Is it politieal or miiitary in character? (b) Ia the People'. Republic of Chins bound by It? (c) By whom ma9 it be altered 01 terminated? In this connection it 18 intersiting to note that the Armistice by Its terms

   absorbed by it8 Inroll-ement in Vietnam, however, it wa8 the seizure of the LXS Pueblo in the waters off the coast of Sarth Korea in January of 1968 that dramatically brought these questions into sharp focus.

   The seizure of the Paeblo furnishes an excellent example for delineation of the primary purpose of this study. The United States branded the seizure as a violation of international law.* The resolution of the incident by reliance upon recognized precepts of international law depends in the first instance upon sev-eral critical factual determinations: (1) the location of the Pueblo at the time of its seizure, i.e., whether it was located in international waters or in the terntorial waters of Sorth Korea: (2) the classification of the Pueblo, i.e., whether or not it was a warship; and (3) the activities in which it was engaged, {.e., whether or not it was engaged in hostile acts.>

   Independently of the above factors, however, resolution of the incident by reliance upon international law depends upon what set of rules are to be applied. As belligerents in the Korean Con-flict, both palties are hound by the Armistice Agreement of 1983. If the customary rules g~~erninparmistice are resorted to, the parties are technicallr still in a state of war, de facto and de jure,B and the international law, of war applies insofar as it is not displaced by the Aiimstiee Agrrrinent or the customary rules of armistice. The position that the armistice has ripened into a de facto ending of the war, tantamount to a treaty af peace, is also a tentative aiternatwe; and compels the conclusion that the inter-nationai law of peace should apply. It has a160 been Suggested in recent literature in the field that the traditional rules of international law,, which are based upon the dichotomy between war and peace, are no longer applicable to modern armistices, and that new rules must he given recognition in order to Serve best the needs of piesent-day reaiities.' Khich set of rules should apply is pertinent not only to the Pueblo situation but to all other disputes ansing under the Armistice Agreement.

   eontinues indefinitely. , . In this respect 1% ~t more like a treaty of peace than sn armistice.'' 1965 PRW. AM. SOC'Y IWT'L L. 98.

   'N.Y. Times, Jan. 27, 1968, at 6. col. 1' Morrlaan, international Low end +tie Seizure of the CSS Pueblo, 4

   'Le& The Soiure and Scope o f the Annistzor Agirsment. 60 An. J

   'See J. SrorE, LEOAI COUTROLS OF INTER FAT ION.^ Cornlcr, 644 n. 42a 'See 31, TAMXUC, POLITICAL

   AID LEWL ASPECTS OF ARMISTICE

   TEXAS INT'L L. F. 157 (1965) 1x1.'~ L. 86@ at 564 (18W [hereafter cited BJ Leriel. (Id T ~ V . ed. 1969).(1963).

   STATES 47

   KOREAN ARMISTICE

   B. SIG.VlFICASCE OF THE ISVESTIGATION

   Nuch scholarly writing has been published about the legal status of the United Nations forces in Korea,' the armistice negatiations,Im and the treatment of prisoners of war," but no material is available on the current legal status of the Armwtice AQreemmt in terms of an analysis of the legal problems that have arisen in the light of current state practice.

   In 1964, Philip C. Jessup first recommended the recognition of a "third legal status intermediate between war and peace."" In 1955, Professor Myres S. McDaugal wrote a short editorial comment in which he expressed dissatisfaction with the dichotomy between war and peace. He suggested the possible utility of analyzing the armistice period in terms of a whole series of factual situations ranged on B scale according to intensity of conflict, with corresponding legal consequences." In 1963, Metic Tamkoc wrote the most detailed study on the palitieal and legal aspects of modern armistice status.'4 His examination elaborated upon the suggestion8 of Jessup and McDougal.

   In each of the above writings the author's attention was facused on the new developments in armistice status as a result of changed world conditions Since the end of World War 11. Tamkoc mentions the Korean Armistice, but only collaterally in support of his thesis. His approach is basically horizontal. No published information was found in which an attempt was made to analyze the implementation of the Korean Armistice Agreement in a comprehensive manner.

   ' D . BO-T, UMTED N ~ ~ l o a s FORCES:

   A LEcu STVDI 29-60 (1964);Yao Tu-Ho. THE Kaerm WAR AND THE UNITED NATIONS:

   A Lmu. AXD

   DIPLOMATIC HISTORICAL STUDY (1864): Goldie, Korse and the U.N.. 1 U.BRlrISX COLCMBIA Lm~u NOTES 125 (1950) : Pye, Logo1 Status of the Korean Hosfilities, 46 CEO. L. J. 45 (1956).

   "C. JOY, HOW COMMCkiSm NEDLITIATE (1965) [hereafter cited ar JOY];U'. VATCHER. PAUMCXJOI: THE STORY OF THE KORBAS MILITARY ARMISTICE N ~ ~ I A T I O N S

   (1968)

   S. DAY& INDIA'S ROLE IN IHT KOREAT Qu~srrox: A SR-DY IN TBESCITLFIMEBT

   OF I~TERNATTOXIL

   DI~PL-TES

   U ~ o m

   THE UNLTED N ~ l l a ~ s

   (1869); Charrnatz & Wit. Repatnation at Prhners of War and the 184s Geneva Convention, 62 YALE L. J. 381 (1053): Mayda, The Ko7r.n R e p - tiintion Problem and Intamotionoi Law, 47 Ax. J. IXT'L L. 414 (1953).

   E Jessup, Should International Law Reoogniie an Intermadtote Statui Between Peooa end We?? 48 Ax. J. IRT'L L. 9s (1954) [hereafter cited a8 Jeesupl.

   Corsrqueneea, 48 A H J. IXT'L L. 63 (1865).

   "McDaugal, Ptroe and War' Faaid Continiium With .Melt$b Legal

   "&I. TAIBW, POLITICAL

   *so L ~ A L

   ASPECTS OF ARMISTICE

   STATUS

   (1963).

   C. LIMITATIOXS A.VD PROCEDL'RES

   The determination of the current legal status of the Korean Armistice Agree~rnt vas primarily a matter of screening the Minutes of the Milifarv Armisttce Commission Meetings in order to identify the problems which hare arisen and to consider the reaction to these problems. The treatment of problem situations was then evaluated in terms of customary rules governing armistice status, the Armistice Agreement, and where appropriate the Charter of the I'nited .Totions

   D.

   ORGAXIZATlO4AL PLAS

   The study begins with an examination of the military and political setting under which the armistice was negotiated. Sext the scope of the Armistice Agreement 1s conaidered. Chapter IV is devoted to the settlement of disputes arising durina the armistice. This is followed by an analysis of the treatment of specific inci-dents.

   11. BACKGROUND-THE ARMISTICE NEGOTIATIOSS

   A convenient starting point for an inquiry into the current Eta-tus of the Korean Armistice as a legal institution is the armistice negotiations, which began in July of 1951 and culminated in the agreement signed on ?i July 1953. This exercise in historical perspective is useful insofar as it reflects changed conditions in the international community which have resulted in totally different legal consequences Rowing from armistice status, as compared with those flowing from the traditional rules of previous centuries

   A. CIISTOMARY I.VTERSAT1OS.IL LAW OF ARMISTICE The traditional rules governing armistice status are based upon the well-established dichotomy between war and peace. According to the dichotomous approach, nations are either at war or at peace, and there is no intermediate stage between the two.'^ It has even been declared a poaitive rule of international law that an "armistice does not terminate the state of war de j w e or de fncto.".' As a corollary, "[Tlhe state af war continues to exist and to control the actions of neutrals as well as belligerents."'. The conventional rules of armistice as codified by the Hague Reg-ziiotions are based upon a conception of an armistice as a purely

   "Sea Jessup, mpra note 12, st 98.

   "Levie, BUpm note 8, at 884"Id.

   KOREAN ARMISTICE

   military convention between belligerents which prepares the groundwork for peace by providing an environment in which preliminary peace negotiations can be conducted.'6 The end in view isalways the treaty of peace by means of which the relations be-tween belligerent nations pass from a state of war to a state of peace.

   Accordingly, the traditional approach views the relationship between the international law of war and that of peace as one between two totally different legal orders. The...