Fought China in the Korean War
"A peace treaty would have to be legitimized by the UN"
Deutsche Welle: South Korea has pushed ahead with the initiative to conclude a peace treaty. How do you rate the chances of success?
Sebastian Harnisch: President Moon wants to set a political example at the summit next week. From the point of view of international law, however, the two Korean states alone cannot change the state of war and the ceasefire agreement by means of a bilateral declaration.
Why is that?
For a long time there were two conflicting positions on the Korean War: Was it an international effort by the community of states against an aggressor? Or: was it a civil war between South Korea and North Korea? If you believe that there was a civil war between South and North Korea, then there are only two parties to the conflict and then they could end the conflict on their own.
But since the overwhelming majority of the world community holds that it was an international punitive action against an aggressor who was supported by Chinese volunteer organizations and the Soviets, South Korea, which shares this second reading of international law, will not become unilateral with the North Koreans and without them The international community can or want to make peace. Nonetheless, there will certainly be a struggle for a formulation that is politically so effective that South Korea's President Moon Jae In can benefit from it domestically, and of course can also set an example for the summit between Trump and Kim. But under international law, he can neither conclude a peace treaty nor declare the end of the fighting.
The peace treaty is intended to replace the ceasefire still in force on the Korean peninsula. How is this idea to be classified under international law? And above all: Who could or should sign such a contract?
Sebastian Harnisch, Institute for Political Science, Heidelberg University
As a reminder, the 1953 armistice was only signed by a North Korean officer, a Chinese officer representing the so-called Chinese Volunteer Associations, and a US officer, the commander of the UN-legitimized international armed forces. South Korea was not directly represented. Nevertheless, the prevailing opinion today is that both Korean states should agree to a peace treaty. Among other things, because North Korea has obviously changed its international legal views on whether they will even talk to the South Koreans about it in the last twelve months. The North Koreans have said for a long time that when we negotiate, we are only negotiating with the United States. Obviously, this point of view no longer exists.
Certainly the USA and the People's Republic of China will also have to be part of a peace solution, because they are also part of the ceasefire. They have long since given up the Chinese stance that only volunteer organizations fought on their side in the Korean War. It was conclusive anyway. And then there remains the question of how the remaining 19 states that fought on the side of South Korea at the time should be involved. At that time you had delegated the ceasefire negotiations to the United States.
What is the role of the international community in a peace treaty solution?
Both from the formulation of the resolution of 1950 (after the invasion of the North Korean People's Army into South Korea) and from the fact that the United Nations did not form a UN military committee at that time, it can be inferred that this military intervention was not a pure UN operation, but an operation of a coalition of states legitimized by the United Nations.
Among other things, in order to represent the coalition members of that time, but also for other reasons, a peace treaty would, in my opinion, have to be legitimized by a UN resolution, with potentially far-reaching consequences. Because the Security Council will almost certainly insist that in this resolution the rules that the contracting parties impose on themselves in the peace treaty are also observed by all other UN member states, which could, for example, affect their arms exports.
Would a peace treaty make the ceasefire agreement obsolete?
Technically yes, practically certainly not immediately. The ceasefire agreement laid down a whole series of rules to ensure military stability at the border, such as the security zone. I do not believe that the minefields and other border security measures will be dismantled immediately. There will then be a regulation on how to deal with it.
What role does China play?
One thing that is being discussed in China right now is whether the Chinese should link trade issues with the US with cooperation on the Korean issue. I believe that this is an extreme position that will not prevail. Maybe they're playing it undercover without it getting public. I tend that they won't connect that. Partly because China is prioritizing securing its border and the stability of North Korea on this issue. In addition, China has long been excluded from the decisions in Pyongyang. With Kim Jong Uns trip to Beijing three weeks ago, a thaw set in. I don't think the Chinese will immediately jeopardize this regained influence.
Trump has already given his blessing to a preliminary inter-Korean agreement on a peace treaty, even if it is not yet binding under international law, as you have pointed out. How do you see the role of the USA in the formation or non-formation of a valid treaty?
The US will never agree to a peace treaty as long as North Korea has the ability to shoot down intercontinental weapons.
How could the way be cleared?
Between the two summits (Kim and Moon and Kim and Trump) there could be mutual commitments to limit the aggressive stance on both sides. For example, the South Koreans could say that we can forego all military maneuvers between South Korea and the US for the duration of the negotiations. An old North Korean demand. In return, they then receive the North Korean promise to forego missile tests of a certain range or even all missile tests, possibly even all nuclear tests.
And that in turn could enable the American President to say: Okay, if so, then we can imagine withdrawing 6,000 from the 28,500 US soldiers in South Korea in the run-up to a peace treaty settlement. And when the US has reduced to 22,500, the North Koreans will take the next step and say: Now we will allow IAEA inspectors to verify an explanation of our previous nuclear weapons potential. That means, they only see what we have, but we are not getting rid of anything and so on.
But the US will not agree to a peace treaty just because the North Koreans say we are no longer building long-range missiles. The US will insist that North Korea abolish all of its nuclear weapons and bring production facilities to a state where they can either no longer produce weapons, or arms production is ruled out through inspections. It could look something like the Geneva Agreement for Korea of October 1994. There are different models of how this can be done.
But Kim Jong Un needs a nuclear weapon like oxygen to survive, it is always said.
After all, his grandfather and, in some cases, his father too, Kim Il Sung and Kim Jong Il, allowed suspensions and restrictions on the nuclear program, which could serve as a model for a major turning point under Kim Jong Un. So there are role models, there are possibilities, although Kim Jong Un rhetorically ruled that out. It has to be said that for the first time the regime is so confident that it is taking unheard-of steps. Kim's sister was at the Olympics. He will meet the American President soon. He's going to China unannounced. Next week he may not be walking across the border between North and South Korea in an armored vehicle, but rather on foot. These are all signs that the regime, especially Kim Jong Un himself, is so self-confident that I think it is possible that he can make very far-reaching promises that lie in the future.
It is very questionable whether he will comply with them. Kim apparently believes that he can shape world politics the way he wants. In this he may have a suitable opponent in Trump. And if that results in a dynamic that is kept in check by the respective experts and South Korea and can be steered in a reasonable direction, then something could actually grow out of it. But at the moment I don't believe in it. I will only believe that when international inspectors confirm that weapons have been scrapped.
Sebastian Harnisch is professor for international relations and foreign policy at the Ruprecht-Karls-Universität Heidelberg.
The interview was conducted by Hans Spross.
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