The historical reasons the Korea summit can’t end with a peace treaty

It’s complicated.
It’s complicated.
Image: AP Photo/Wong Maye-E
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History will be made by North Korea and South Korea this week. Meeting at their border on April 27, the two nations will hold their first top-level summit outside Pyongyang, and only their third ever. And in a highly symbolic move, North Korean leader Kim Jong-un will cross the military demarcation line into the south.

One thing the two sides cannot do on the big day is clinch a peace treaty officially ending the 1950-53 war they are technically still fighting. They might agree to end hostile acts—in a peace “deal” or “agreement”—but that official peace treaty is another matter altogether.

A bit of context is in order

The Korean War started in 1950 when the north, backed by the Soviet Union, invaded the south. The US, wanting to stop the spread of communism, fought for the south, leading the United Nations Command. China sent “volunteer” troops to help the north, allowing Beijing to get involved, but not officially so.

In 1953, an armistice agreement formalizing a ceasefire was signed by three parties: the UN Command, the north’s military, and the Chinese forces. (South Korea refused to sign it.) Meant to be a temporary document, it had the objective of “establishing an armistice which will insure a complete cessation of hostilities and of all acts of armed force in Korea until a final peaceful settlement is achieved.”

The armistice also created the demilitarized zone, which extends 2 km (1.2 miles) from the military demarcation line separating the two sides—the same line Kim is to cross. Today wildlife thrives inside the long, undeveloped buffer zone, even as the DMZ remains one of the world’s tensest, most heavily armed borders.

Unfortunately the “peaceful settlement” mentioned in the armistice agreement never happened, and technically the war is ongoing. North Korea does not recognize South Korea as a state, and vice versa. The US has never extended diplomatic recognition to North Korea.

No end to hostile acts

Over the decades, reminders of the unstable situation have cropped up in the form of violent incidents, such as when a North Korean submarine torpedoed a South Korean naval vessel in 2010 (Pyongyang still denies it), or when North Korean soldiers hacked to death two US Army officers in 1976 for trying to prune a tree in the DMZ.

A peace treaty ending the war—like the the San Francisco Peace Treaty signed by the US, Japan, and dozens of other countries after World War II—could remain elusive. For starters, it would need to be signed by the United States, which also is technically still at war with North Korea.

“It is hard to see the US Senate approving any such treaty by the constitutionally required two-thirds margin,” notes Julian Ku, a professor at the law school of Hofstra University in New York.

The US has all sorts of beefs with North Korea, including its evasion of UN sanctions, its record on human rights, and its assorted weapons of mass destruction. A chief concern is its nukes. The Kim regime, though, is highly unlikely to ever give up all of its existing nuclear weapons, despite recent announcements that sounded promising. Pyongyang said it would discontinue testing nuclear weapons and intercontinental ballistic weapons, and close a nuclear test site.

Still, experts doubt that North Korea has, as it has claimed, achieved the ability to deliver nuclear warheads in working order via ICBMs in the first place, and the test site may have become too unstable to use anyway. Meanwhile Pyongyang has a track record of pausing its nuclear activities to get concessions, only to start them again later. And the Kim regime said nothing about its short-term and mid-range missiles, or its other weapons of mass destruction, including the chemical and biological variety.

Ideally, South Korea would be involved in any official peace treaty, in addition to the US and North Korea, notes Ku. But complicating matters, North Korea does not recognize South Korea as one of the belligerents in the original Korean War. Instead, it views its neighbor as a “puppet regime” that is not actually in control of the military forces south of the border—and as such, the South cannot guarantee any peace agreement.

Pyongyang can point to the fact that, even today, in the event of a war, operational control of South Korean forces would be assumed by the US. That arrangement, which traces back to the original conflict, was dubbed the “most remarkable concession of sovereignty in the entire world” by the late general Richard Stilwell, who commanded US forces in South Korea. The administration of South Korean president Moon Jae-in is pushing to alter the arrangement.

As for China, Ku adds, it would not likely be needed to sign a peace treaty because it was not officially (as a state) involved in the original war, although it was necessary for its volunteer forces to sign the 1953 armistice agreement. Beijing might nevertheless be invited to participate in order to get its buy-in, and it could work behind the scenes through North Korea.

What can be accomplished

If all goes well, the Koreas summit will lay the groundwork for a US-North Korea summit to occur probably in June, though the date and place have not been set. That would be an even more historic occasion than this week’s, as the leaders of the US and North Korea have never held such a meeting. Some see the US agreeing to such a summit as a win for the Kim regime, which has long sought just such a thing in hopes of boosting its legitimacy. It’s especially eager for a photo showing the US president and the supreme leader together.

Some have speculated that North Korea will demand the removal of US troops from South Korea. Yet according to  Moon, Pyongyang is not making that demand. He told reporters last week:

“The North is expressing a will for a complete denuclearization. They have not attached any conditions that the US cannot accept, such as the withdrawal of American troops from South Korea. All they are talking about is the end of hostile policies against North Korea, followed by a guarantee of security.”

What could happen at some point is an executive agreement between the US and North Korea, says Ku. It would however lack the formality of something like the San Francisco Peace Treaty.

As for this week’s summit, we can expect highly choreographed proceedings and feel-good vibes generated by gift exchanges and a dinner where nearly every entree has a special meaning. Some of the events will even be broadcast live on South Korean TV.

The sides could agree to end hostile acts between North and South and even discuss what becomes of the DMZ.

An official peace treaty formally ending the war that technically hasn’t ended? Don’t hold your breath—not this week, at least.