It is no secret that both China and Russia would prefer greater control over circumstances involving the Korean Peninsula.
In his speech at the United Nations General Assembly, South Korean President Moon Jae-in proclaimed, “Ending the Korean War is an urgent task. It is a process that we must go through in order to move towards a peace regime.” Chinese Foreign Minister Wang Yi echoed that sentiment with China’s endorsement of an “end-of-war declaration” during a ministerial-level meeting of the UN Security Council the next day. At that same meeting, Russian Foreign Minister Sergei Lavrov alluded to the need for new UN Security Council resolutions aimed at maintaining peace on the Korean Peninsula. For all parties, the publicly expressed reasons are the same: Reassurance that North Korea is paramount to establishing enduring peace on the peninsula. However, what underlying reasons do China and Russia have to be so keen for a formal end to the Korean War?
Billed as the foundation of a new peace regime with minimal costs, an end-of-war declaration irreversibly alters the legal framework underwriting the security situation on the peninsula. Specifically, it removes the basis for standing UN Security Council resolutions and the Korean War Armistice. Those impacts alone have consequences that benefit China and Russia but complicate the situation for other regional actors. Ultimately, it irreparably erodes the legal foundation for the multinational United Nations Command in South Korea and Japan, and it reintroduces the necessity for UN Security Council deliberation in response to any North Korean aggression. While there is little doubt the United States government and its allies would seek to minimize such effects of an end-of-war declaration, China and Russia will see a chance to pare down the number of actors in the region, undermine sanctions enforcement regimes, and regain authority over what happens on the Korean Peninsula vis-a-vis the UN Security Council.
An end-of-war declaration remains on the table since the Korean War has never formally ended, leaving instead two relevant legal frameworks intact since the early 1950s: Korean War-era UN Security Council (UNSC) resolutions and the Korean War Armistice. When conflict broke out on the Korean Peninsula on June 25, 1950, the UNSC convened and passed Resolution 82 calling for immediate cessation of hostilities. When that did not happen, the council passed Resolution 83 on June 27, formally recognizing an “armed attack” against the Republic of Korea and calling for all UN member states to assist South Korea in repelling the north’s attack. To support that resolution, the UNSC passed a third resolution (Resolution 84), with three points: (1) requesting UN member countries provide military forces and other assistance to a “unified command” under the United States; (2) requesting the United States to designate a commander of those forces; and (3) authorizing the Unified Command to fly the UN flag in execution of its mission. Since there has never been a peace treaty or similar international agreement resolving the “armed attack” (see UN Charter Chapter VII, Article 51) underwriting those UNSC resolutions, they have remained intact and serve as the legal foundation for the United Nations Command that still exists today.
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The second part of the legal framework is the long-negotiated armistice that formally ended hostilities in 1953. Those negotiations took place over the course of two years with 158 meetings between the warring parties. The armistice is a 20-page document containing 63 provisions and 58 sub-provisions for preventing a resumption of conflict. These provisions included the establishment a Military Armistice Commission and Neutral Nations Supervisory Committee charged with overseeing the preservation of armistice conditions, capping the number of military forces that may be introduced to the peninsula at a given time, and establishing the rules for conduct along the demilitarized zone, among others. All parties agreed to keep the armistice in force until “expressly superseded either by mutually acceptable amendments and additions or by provision in an appropriate agreement for a peaceful settlement at a political level between both sides.”
As a result, both the resolutions and armistice treaty have remained intact and underwritten peace on the peninsula since 1953, though not without challenge. North Korea routinely argues that the armistice is no longer applicable (most recently in 2013), and in the mid-1990s, the Kim regime expelled Czechoslovakian and Polish members of the Neutral Nations Supervisory Committee that were responsible for monitoring armistice conditions. However, by-and-large, all parties have still adhered to armistice provisions, and it has provided a set of rules and oversight that has contributed to over seventy years without a resumption of war on the Korean Peninsula.
From the South Korean and American perspectives, an end-of-war declaration may not be designed to end the armistice or undermine standing UNSC resolutions, but it opens the door for others to push for those outcomes. UNSCR 82, 83, and 84 are predicated on an “armed attack” by North Korea, and an end-of-war declaration provides a de facto resolution of that condition. Further, an end-of-war declaration arguably could be the “peaceful settlement at a political level” that would supersede the terms of the armistice treaty. Those outcomes lead to two unintended consequences that the Chinese and Russian governments would readily welcome: (1) erosion of the legal basis for UN Command and (2) removal of standing legal authorities for response to North Korean provocation.
Consequence 1: Erosion of Legal Basis for UN Command
President Moon has expressed clearly that an end-of-war declaration will not affect U.S. troop presence in South Korea — which is true, but misleading. U.S. troops are based in Korea under the Mutual Defense Treaty between the United States and Republic of Korea signed in 1953, so an end-of-war declaration technically would not have any impact on that treaty. However, the declaration does threaten the existence of United Nations Command, the 16-nation command that has operated under the UN flag since 1950.
United Nations Command is a multinational military organization formed based on UNSCR 82, 83, and 84 to respond to North Korean aggression. United Nations Command is comprised of 16 members known as the “sending states.” Some states have changed since the warfighting days, but the current members include the following: Australia, Belgium, Canada, Colombia, Denmark, France, Greece, the Netherlands, New Zealand, Norway, the Philippines, Thailand, Turley, South Africa, the United Kingdom and the United States.
During the war, the sending states provided combat forces, but the armistice transitioned the focus from winning a war to maintaining armistice conditions. In other words, UN Command’s primary function now is not to win a war, but to maintain the peace. Importantly, the UN Command’s Military Armistice Commission does not solely focus on North Korea but is responsible for ensuring all parties to the armistice maintain the agreement, even the South Korean and U.S. militaries which have at times pushed the boundaries of armistice conditions.
UN Command also maintains peacetime roles in supporting other UN resolutions, including sanctions enforcement. On the Korean Peninsula, UN Command oversees armistice conditions, including those that constitute sanctions violations. The most recent example is a field study in August 2018 for a railway from South Korea to China via North Korea that would have violated existing sanctions. Off the peninsula, UN Command maintains a Status of Forces Agreement with Japan that offers a Rear Area Headquarters and seven bases for UNC usage. Those bases are currently being used for the deployment of Canadian, Australian, and New Zealand aircraft to Japan for sanctions enforcement activities.
An end-of-war declaration does not necessarily spell the end of UN Command, but it erodes the legal foundation of the organization. North Korea has routinely argued against the legality of UN Command and the armistice, and an end-of-war declaration arms China and Russia with ammunition to do the same. Both countries will inevitably challenge the legality of the command in the UN Security Council while pressuring (or coercing) individual members to break ties. For them, this serves the dual purpose of undermining sanctions enforcement regimes while paring down the number of militaries operating in the region.
Consequence 2: Removal of Standing Legal Authorities for Response to North Korean provocation
Standing UNSC resolutions give the international community the legal basis to respond to North Korean provocations without having to go back to the UN Security Council. The current legal framework boxes China and Russia out, and it is no secret that both would prefer greater control over circumstances involving the Korean Peninsula. As long as standing UNSC resolutions are intact, it would take a new resolution to eliminate them, and with three UN Command members — the U.S., U.K., and France — as veto powers on the council, the likelihood of that occurring is nil. Meanwhile China’s only avenue to influencing the armistice is through its problematic relationship with North Korea, while Russia has no say in the matter at all.
The ability to respond without delay is a key component of the deterrence that has underwritten peace since 1953. There was never a need to report an “armed attack” to the UN Security Council, to wait for deliberations, or to hope that China and Russia would approve international response to North Korean aggression. The framework was there for South Korea and 16 members of the international community to respond swiftly in returning the peninsula to armistice conditions. This meant that every escalatory step North Korea took had to be far more measured.
An end-of-war declaration constitutes an internationally agreed-upon resolution of the “armed attack” that generated those long-standing resolutions. Russia has already been advocating for a new regime of UNSC resolutions related to North Korea, and this would afford its delegation the legal justification to support it. In the meantime, it also means a response to North Korean provocations would require new UNSC decisions, which China and Russia could veto. That is a monumental change in conditions underwriting the security environment. Of course, the international community could respond without valid UNSC resolutions, but not without undermining the standards of a rules-based International order to which it has attempted to hold China and Russia accountable.
None of this is news to U.S. and South Korean policymakers, and they and other members of the international community will seek to minimize negative outcomes should an end-of-war declaration be made. Further, the costs could prove minimal if North Korea has indeed turned a corner. However, if North Korea has not — if Kim Jong Un is playing the same diplomatic game that his predecessors attempted to play — the end-of-war declaration may have far greater consequences than ever intended. Those are consequences which China and Russia would certainly welcome.
