This following is a guest post by Sayuri Umeda, a foreign law specialist who covers Japan and various other countries in East and Southeast Asia. She has previously written posts for In Custodia Legis on various topics, including English translations of post-World War II South Korean laws, laws and regulations passed in the aftermath of the Great East Japan Earthquake, and changes to the law on sexual offenses in Japan.
The recent news about the defection of a North Korean soldier to South Korea through the Demilitarized Zone (DMZ) renewed interest in the legal state of war between the two countries and the rules with respect to the DMZ.
The incident attracted attention all over the world. The incidence of a person escaping to South Korea through the DMZ is rare, but there are precedents. In June 2017, a North Korean soldier defected to South Korea by crossing the DMZ on foot. There was also a case in September last year. One news article states, “[o]ut of all defections to the South since 2010 just 10 are believed to have used the DMZ.” Between 2010 and 2016, the total number of North Korean defectors entering South Korea was 12,214, according to statistics provided by the South Korean Ministry of Unification.
1953 Armistice Agreement and Establishment of the DMZ
North Korea (officially the Democratic People’s Republic of Korea, or DPRK) and South Korea (officially the Republic of Korea, or ROK) are technically still at war, but have ceased active hostilities. The Korean War that started in 1950 was ended by the Armistice Agreement on July 27, 1953. The U.S.-led United Nations Command, the Korean People’s Army (from North Korea), and the Commander of the Chinese People’s Volunteers signed the agreement with the objective of “stopping the Korean conflict, with its great toil of suffering and bloodshed on both sides, and with 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.” (Agreement Between The Commander-in-Chief, United Nations Command, on The One Hand, and The Supreme Commander of The Korean People’s Army and The Commander of The Chinese People’s Volunteers, on The Other Hand, Concerning A Military Armistice in Korea, Preamble.) The ROK military was not a signatory. This Agreement is “somewhat exceptional in that it is purely a military document—no nation is a signatory to the agreement.”
Under the Agreement, the Military Demarcation Line (MDL) was drawn near the 38th parallel north. The line starts above the 38th parallel north on the eastern side of the Korean peninsula, and ends below the 38th parallel north on the western side of the peninsula. Both sides withdrew 2 kilometers (about 1.24 miles) from the MDL so as to establish the DMZ between them. The DMZ is a “buffer zone to prevent the occurrence of incidents which might lead to a resumption of hostilities.” (Agreement, para. 1.)
The Agreement established the United Nations Command Military Armistice Commission (UNCMAC). (Agreement, para. 19.) The UNCMAC is responsible for supervising the implementation of the Agreement and is made of up of ten senior military officers from U.N. member nations, who serve in the Command on a rotational basis. Its headquarters are located in Seoul, South Korea. The Neutral Nations Supervisory Commission (NNSC) was also established to monitor the Agreement. (Agreement, para. 36.) The NNSC was originally composed of members from Sweden, Switzerland, Poland and Czechoslovakia.
Is the Armistice Agreement Functioning?
A South Korean professor has argued that both the UNCMAC and the NNSC have not been fully operational since 1994. Regarding the UNCMAC, he stated that, “in 1991, the UNC appointed a Republic of Korea Army general as a senior member at the UNCMAC; previously it was a position only held by American generals.” North Korea argued that a U.S. general must be a representative because the U.S. guaranteed the South Korean army’s compliance with the armistice. In 1992, North Korea “stopped attending the UNCMAC, which has been convened 459 times since 1953.” Chinese representatives also withdrew from the UNCMAC at North Korea’s request in 1994.
After the collapse of the Soviet Union and the transition to democracy in Czechoslovakia and Poland, these two countries opened diplomatic relations with South Korea. As a result, North Korea “withdrew its representatives from the NNSC in 1993 and 1995 respectively, which virtually nullified the body.”
In 2009, North Korea declared for the first time that the Armistice Agreement was invalid, and has made similar declarations since then. However, South Korea stated that a unilateral move to end the pact was not legally possible. Paragraph 62 of the Armistice Agreement states that the provisions of the Agreement “shall remain in effect 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.”
What Has Happened Regarding the Peace Treaty?
Paragraph 60 of the Agreement stated that the military commanders of both sides would recommend to the governments of the countries concerned “a political conference of a higher level of both sides be held … to settle through negotiation the questions of the withdrawal of all foreign forces from Korea, the peaceful settlement of the Korean question, etc.”
Subsequently, a conference did take place in Geneva in 1954. However, no agreement was reached. It appears that there has not been further progress on this to date.
Was the Shooting a Violation of the Agreement?
The U.N. Command stated that firing across the DMZ at the North Korean defector by North Korean soldiers, and the crossing of the military demarcation line by the soldier in itself, were violations of the Armistice Agreement. Paragraphs 6 to 8 of the Agreement prohibit such acts.
What are the Rules for Visiting the DMZ?
The DMZ is a haven for wildlife and plants in the region. There would possibly be good photo opportunities but, of course, there are restrictions. Paragraph 9 of the Agreement states:
No person, military or civilian, shall be permitted to enter the demilitarized zone except persons concerned with the conduct of civil administration and relief and persons specifically authorized to enter by the Military Armistice Commission.
In addition, paragraph 10 states:
The number of persons, military or civilian, from each side who are permitted to enter the demilitarized zone for the conduct of civil administration and relief shall be as determined by the respective Commanders, but in no case shall the total number authorized by either side exceed one thousand (1,000) persons at any one time.
To my surprise, I found references online to DMZ tour companies operating in South Korea. It is possible to visit there as a tourist–even South Korea’s official tourism agency promotes DMZ tours. According to Wiki Voyage, “[m]any of the destinations listed as inside the DMZ will usually require a guided tour bus with a fixed itinerary.” I will definitely be putting the Korean DMZ on my list of possible vacation destinations!
Library of Congress Resources
The Library of Congress holds a a number of materials related to the Armistice Agreement and the DMZ, in addition to many interesting items about the Korean War itself, including:
- A copy of the full Agreement, along with the maps that accompanied it.
- Documents and materials related to the Agreement, published by the Chinese People’s Committee for World Peace.
- A joint policy declaration concerning the armistice, published by the U.S. Department of State in 1953.
- Various books about the Agreement, such as Rutherford M. Poats, Decision in Korea (1954) (also available online).
- Multiple cartoons and drawings regarding the armistice.
- Books that depict the DMZ, including Stephen M. Tharp, Western DMZ Paju (2014) (a guidebook for visitors) and Inside the DMZ: Photograph by Chosŏn Ilbo, DMZ Special Report Team (2011).
Over at the 4 Corners of the World blog, a post was recently published about the Library’s collection of leaflets printed during the Korean War.