war on the rocks

What’s In a Name? Korean ‘Peace’ and Breaking the Deadlock

September 14, 2018

Everyone wants peace on the Korean Peninsula. But what does “peace” mean and how is it achieved? This is where it gets tricky and political, dividing the hawks and the doves. It might be even more difficult for the United States and North Korea to agree on what peace means, including the meaning and implications of all of the interim steps, like a declaration ending the Korean War. The meaning of “peace” might be just as hard, if not harder, to agree on as the much-contested definition of “denuclearization.”

In stark contrast from the past, North Korea under Kim Jong Un has been adamant about securing a declaration that the Korean War is over and has insisted Washington make this declaration first before it takes any further steps toward denuclearization. Amid the push-and-pull over who should make the first move, U.S. President Donald Trump abruptly cancelled Secretary of State Mike Pompeo’s trip to Pyongyang and nuclear negotiations are currently at a standstill. The stalled talks have given a greater sense of urgency for South Korean President Moon Jae-in, who will meet Kim next Tuesday in Pyongyang for their third summit. His mission will be to further cement ways to improve inter-Korean relations as agreed upon in their April Panmunjeom Declaration, and to try to break the Washington-Pyongyang deadlock. A key objective from the April summit was to declare the Korean War over by the end of this year.

One option policymakers are considering to move negotiations forward is to trade a North Korean nuclear inventory in exchange for a declaration ending the Korean War. Such a declaration, even a purely symbolic one, would be relatively easier for the two Koreas to make, but far more complicated for the United States because it has implications for U.S. presence and interests in the region. There are clear ways to draft a symbolic declaration that does not alter the armistice regime, which has ensured co-existence between the two Koreas without armed conflict for the past 65 years. But, if mishandled, declaring the Korean War over could open the floodgates for Pyongyang and Beijing to question the validity of the armistice and demand it (along with the U.N. Command and eventually U.S. troops in the region) be removed. Such demands, in turn, could further hold up the denuclearization process.

To aid a more constructive policy debate, it is important to examine the various “peace” components, their meanings, their legal and political implications, and how they could line up with the denuclearization process. The complexities and nuances contained within could impact regional order. This understanding can also explain why many officials and experts are concerned about attaining “peace” too soon before denuclearization.

Components of Korean ‘Peace’

American public discourse writ large has conflated some key terminology in the Korean “peace” lexicon, and even expert communities in key capitals have yet to agree on some definitions. For Seoul, the three main components are a declaration ending the Korean War, a peace treaty, and a peace regime. These components are related but very different, and words matter. Moon’s government (and, more or less, Pyongyang, according to officials in private) basically sees the peace process in three broad stages, each corresponding to one of those components. The first step, as agreed between Moon and Kim in April, is to declare that the Korean War is over by the end of 2018. Then comes a peace treaty that replaces the armistice, and finally the establishment of a broader peace regime.

Simply put, a peace treaty is a legal agreement, or set of agreements, that would eventually replace the military armistice agreement signed in 1953 by the U.S.-led United Nations Command, the (North) Korean People’s Army, and China’s volunteer troops (which Beijing claims were not “regular” combat forces). The armistice was signed to cease fire, but the two Koreas are still technically at war in military terms. A peace treaty is a critical component of a peace regime, which is a comprehensive system of norms, institutions, and rules that ensures lasting peace. South Korean administrations have largely believed that a peace treaty is not enough to sustain peace, which is why they see the need for a peace regime.

The last two steps — peace treaty and peace regime — could take place simultaneously or with some overlap depending on how their detailed components are configured. Parts of the peace regime can even begin before signing a formal peace treaty. As for how these steps relate to denuclearization efforts, Washington believes a peace treaty or regime should come only after denuclearization. South Korean officials say a peace treaty is impossible without denuclearization, but the Moon administration has not yet made its position clear in public.

The difficulty of sequencing the various steps toward peace alongside denuclearization was illustrated during the previous progressive South Korean administration of President Roh Moo-hyun (2003-2008) to whom now-President Moon was chief of staff. According to former Foreign Minister Song Min-soon’s 2016 memoir “Glaciers Move,” the idea of a war-ending declaration was first discussed in the fall of 2006 between Roh and President George W. Bush in the context of the overall denuclearization and peace processes. Song writes that although Bush conflated the various components of the peace process, he was prepared to make peace and end the war after denuclearization. He says that officials who were proponents of negotiations within the Bush administration were willing to begin discussions about a war-ending declaration after the disablement stage was completed, Pyongyang submitted a declaration of its uranium program, and the issue of nuclear ties between Syria and North Korea was resolved. American negotiators at the time say (in this author’s interviews) Pyongyang was not interested in declaring the end of the Korean War or in a peace treaty during the Six Party Talks, but rather, focused on lifting sanctions and receiving light-water reactors for energy. Nevertheless, the two Koreas agreed in their October 2007 summit to “work together to advance the matter of having leaders of the three or four parties directly concerned to convene on the Peninsula and declare an end to the war.”

Song recounts that he and “others” in the Roh administration (who can be deduced as some in the Blue House, the National Intelligence Service, and the Unification Ministry) disagreed on the purpose and sequencing for this war-ending declaration. Song believed it should proclaim the start of a negotiating process that eventually declares the end of the Korean War after a detailed denuclearization roadmap was agreed upon, while the “others” (some of whom are currently in the Moon administration) believed declaring an end to the war first could trigger progress in denuclearization. The latter view is similar to the view held by some progressive South Korean thinkers today who believe a war-ending declaration would induce denuclearization. Roh eventually decided, Song writes, that denuclearization should come before a war-ending declaration and a peace treaty.

The Six Party Talks, after having disabled 11 key plutonium-producing facilities, collapsed in 2008 over disagreements on a verification protocol and with time running out for the Bush administration’s second term. A war-ending declaration was not a significant issue during Kim Jong Il’s leadership nor in the public discourse, but it has become a key objective for the two Koreas today.

Elements — and Pitfalls — of a Declaration Ending the War

The Moon administration sees the war-ending declaration as including four components: First, the relevant heads of state would symbolically declare that the Korean War is over. Second, the two Koreas, and the United States and North Korea, would each pronounce an end to bilateral hostilities. Third, the U.N. Command and Demilitarized Zone (DMZ) would remain in place until a peace treaty replaced the armistice. Fourth, relevant parties would sign a peace treaty and normalize diplomatic relations.

If a trade involving a war-ending declaration to break the deadlock is still on the table, there needs to be a crystal-clear agreement among Washington, Pyongyang, and Seoul on the definition, conditions, and intentions. But if history is any guide, chances are high that Washington and Pyongyang could walk away with their own interpretations, which would widen the existing abyss and create more hurdles for the road ahead. Moon defined the signatories of this declaration as the two Koreas and the United States, and so far, there is no evidence to suggest Pyongyang disagrees, although China’s participation remains in question. The political nature of this envisioned document means the executive branches would likely take the lead in negotiations (for example, the U.S. State Department), not the militaries.

However, it is important to consider potential pitfalls to this plan if it occurs before substantial denuclearization takes place. First, Pyongyang’s motivations for seeking a war-ending declaration need to be assessed. The regime seems to see this as a tangible step in “establishing new relations” with Washington — the first of four points agreed upon at the Singapore summit. Some experts (according to this author’s interviews) believe Kim needs this declaration for domestic political purposes to justify de-escalating with the United States, or that it can induce Pyongyang to take credible denuclearization steps. But many skeptics believe it is simply a ploy to weaken the armistice, induce an early peace treaty before denuclearization that eventually reduces or withdraws U.S. troops and ultimately break the U.S.-South Korean alliance. After all, Kim in his New Year’s Day address called on all Koreans around the world to rally around the North Korean flag in his “revolution” against American power in the region.

Second, there are clear ways to symbolically and politically declare the Korean War is over without changing any part, or key parts, of the armistice. This also means no change to the DMZ (which was established to prevent armed clashes and has prevented full-scale conflict for the past 65 years), the U.N. Command (which ensures the implementation of the armistice and would manage the command and control of multinational forces sent during renewed hostilities), the U.S.-South Korea Combined Forces Command (the main force that defends South Korea), and U.S. troops in the region. Such a statement would need an explicit condition or caveat that the armistice remains entirely intact (or, that key mechanisms and functions remain intact) until a peace treaty replaces it at an appropriate time. It could also proclaim that the state of active war as it was in the early 1950s no longer exists today. If the armistice remains intact, the U.N. Command would remain untouched. While such a declaration would not rescind U.N. Security Council Resolutions 82 through 88 regarding the Korean War and U.N. Command, it might have to state this in writing for clarity. Thus, such a declaration carries no legal or material implications for the armistice agreement and U.S. troops. This does not mean the North Korean nuclear-missile threat (to South Korea, Japan, and the United States) has vanished, which means it does not erase Washington’s rationale for its own deterrent.

Even if Washington agrees to such a symbolic and conditional declaration, the bigger question is, would North Korea accept a statement that explicitly upholds the armistice? And would it live up to the letter and spirit of such a declaration? If so, the trickier task would still be for the Trump administration to manage the domestic and global perceptions, interpretations, and political implications of even a symbolic declaration. There would need to be a clear agreement with Pyongyang, Seoul, and Beijing that a war-ending declaration does not alter the armistice (or key components) in any way, shape, or form and contains no ambiguity for international lawyers to argue various interpretations. Otherwise, Pyongyang could demand a peace treaty that questions the presence of U.S. troops in the region before taking denuclearization steps and shift the regional balance of power in its favor.

A practical point that would still need to be addressed for a symbolic war-ending declaration is North Korea’s force posture near the DMZ and its artillery. About 70 percent of North Korea’s forces are in offensive posture between the DMZ and Pyongyang, while U.S. forces are not in offensive posture and are stationed further south of Seoul. South Korean forces are in defensive positions between the DMZ, Seoul, and the Han River.

Third, even after a seemingly clear agreement is reached on a symbolic declaration’s contents, there is a risk that Pyongyang could still take a big victory lap, advertising the declaration as a defeat of the United States. Perhaps this is a propaganda show that some members of the administration might be willing to brave if they will receive a meaningful denuclearization measure that significantly moves nuclear negotiations forward. But in a North Korea where international politics trump legal fine print, a political declaration could still give the regime cause to argue for abolishing the armistice and the U.N. Command, altering or even withdrawing U.S. troops in South Korea and Japan, and making revisions to the Northern Limit Line (the de facto maritime border with the South where bloody naval skirmishes have occurred in the past). Or Pyongyang might simply demand a peace treaty next, a savvier route to ridding the peninsula of U.S. presence and influence.

A Peace Treaty and Peace Regime: Opportunities and Risk

From a nonproliferation perspective, the best scenario for a peace treaty, the next step in the peace process, would be to sign one after denuclearization or after substantial dismantlement is completed. However, relevant parties could consider beginning formal or informal discussions on a peace treaty after dismantlement has begun. This would constitute parallel nuclear dismantlement-and-peace negotiations and can occur regardless of whether a war-ending declaration is made.

A peace treaty would be a far more complex endeavor than a war-ending declaration, loaded with numerous legal interpretations and ways of drafting the contents. First, there is considerable debate about who would sign the treaty. In the past, Pyongyang was opposed to Seoul being a signatory, but the regime under Kim has so far shown no public opposition, as evidenced by the Panmunjeom Declaration and peace offensive toward the South. This should be acknowledged as a major and most welcome shift in Pyongyang’s position. Seoul envisions the signatories to be the two Koreas (the principal parties to lasting peace on the Korean Peninsula), the United States, and possibly China. Legal experts point out (in this author’s interviews) that China technically would not be required to sign a peace treaty because its volunteer forces signed the armistice agreement, Beijing has continued to claim they were not regular combat forces, and Chinese troops have not been stationed on the Korean Peninsula since not long after the Korean War ended with a ceasefire. Today’s political considerations, however, may justify China as a signatory, and Beijing has made it clear that it sees itself as an essential party. Beijing views Korean peace and reunification as a regional order issue affecting its national interest. Pyongyang sees Washington as a signatory because the U.S.-led U.N. Command signed the armistice.

Second, a peace treaty to replace the armistice could comprise one treaty, several treaties signed by different parties or all four parties, or one overarching treaty and several subsequent agreements. At some point — whether in a peace treaty or peace regime — an agreement on conventional arms control would be needed. Depending on the timing, situation, and needs, a peace treaty or treaties could even keep certain elements of the armistice agreement intact.

Third, many lawyers (in interviews with the author) say the conditions on the Korean Peninsula would determine the status of the U.N. Command and U.S. troop presence — another source of debate. If denuclearization was achieved, some legal experts argue that the signatories, and under certain circumstances the U.N. Security Council, would have to decide whether North Korea’s conventional, chemical, and biological weapons are enough to merit retaining the U.N. Command in some form. There are conflicting views as to how to abolish the U.N. Command. With some exceptions, most lawyers argue that this would be an American decision because U.N. Security Council Resolution 84 put the “unified command” under U.S. command vis-à-vis North Korea, although Washington would likely consult with Seoul. The abolition of the U.N. Command would not affect U.S. Forces Korea and the Combined Forces Command with the South Korean military because U.S. forces are dual-hatted with the U.N. Command. All U.S. troops fall under America’s bilateral Mutual Defense Treaty with Seoul, which does not specify “North Korea” as the basis for their presence, but rather, threats in the Pacific region. The dissolution of the U.N. Command would, however, require the United States and Japan to replace their bilateral Status of Forces Agreement with a new agreement to keep seven U.S. bases in Japan that are mandated to support South Korea’s defense during wartime.

Lastly, a peace treaty is also complex for the two Koreas themselves because it would require constitutional amendments. Both constitutions claim sovereignty and ownership over the entire peninsula and the Korean peoples.

A Possible Compromise?

There are various ways to configure a tradeoff in negotiations. Peeling away sanctions for each meaningful denuclearization step would be reasonable. But if Pyongyang will not yield on a war-ending declaration, Washington would still need a proportionate concession from Pyongyang because of the implications associated with the declaration. There are various measures the regime could take that would constitute credible and meaningful denuclearization steps. But if a nuclear-missile inventory is the only acceptable first step for Washington, one of three plausible scenarios may result: One, Pyongyang would not hand over an inventory because it would mean verification requirements. Transparency is the kiss of death for the heavily controlled regime, both because it undermines national sovereignty and because Pyongyang may be embarrassed if its technological achievements fell short of its public pronouncements about them.

Two, Pyongyang might hand over an incomplete list because of secrecy, because uncertainty would preserve its deterrent, and perhaps because of fear that such information would be used for targeting purposes. Even an incomplete inventory would still begin a process that can probe for more. At the least, Washington should insist that North Korea disclose all fuel-cycle-related facilities anywhere in the country. The aim would be to verify this declaration and, as a first step, halt the production of fissile material. This arrangement would block future production pathways and keep intact Pyongyang’s existing deterrent until a more comprehensive declaration could be made, followed by verification and the eventual dismantlement of all programs. The risk surrounding any nuclear inventory, however, is a potential “ticking time bomb” if discrepancies were found or if the list were to be treated as a litmus test of Pyongyang’s seriousness. In this scenario, the U.S. administration might call it quits too soon or some forces might try to derail the diplomatic process.

Three, Pyongyang could revert to “salami tactics” by slicing an inventory into small parts — perhaps by location, type of weapon, or facility — and demanding big U.S. concessions for each piece, leading to a long period of uncertainty and protracted negotiations.

If the bar is too high for both sides to trade a nuclear inventory for a war-ending declaration, one reasonable compromise might be to revisit the idea floated over a decade ago: The relevant countries could proclaim the start to a process that eventually declares the end of the Korean War in exchange for a detailed denuclearization roadmap that also factors in the components of the peace process. This idea would not fare well in Seoul because it does not accomplish a key agreement in the Panmunjeom Declaration by this year and because of its originator, former Foreign Minister Song, who became controversial among progressive South Koreans who were concerned the release of his memoir might negatively impact then-candidate Moon’s chances during the last presidential campaign.

The need and desire for peace on the Korean Peninsula is indisputable. But a failure to operate on the same page regarding all the components of peace and their relationship with an agreed-upon denuclearization roadmap will further tangle northeast Asian relations. A protracted lull in negotiations could also complicate matters geopolitically. Both Moon and Trump have domestic time pressures: Moon needs to achieve his peace agenda within his five-year term, which means he needs progress between the United States and North Korea to lift sanctions, to enable him to connect railways and roads through North Korea, Russia, and Europe and achieve his vision of regional economic integration. Trump may also want to leave a peace legacy of his own. Time may appear to be on the side of Kim, who is playing the long game. In fact, though, time may not actually be on Kim’s side because Trump’s actions after the November midterm elections are unpredictable, and he may be the only American president who is willing to deal directly with Kim. But perhaps the better question is: Whose patience will run out first?

 

Duyeon Kim is a Seoul-based adjunct senior fellow at the Center for a New American Security and a columnist with the Bulletin of the Atomic Scientists. Her research is supported by the John D. and Catherine T. MacArthur Foundation. Kim was previously an associate in the Nuclear Policy and Asia programs at the Carnegie Endowment for International Peace.

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