JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that North Korea's apparent disavowal of the 1953 armistice ending the Korean War does not negate the continued existence at international law of the legal boundary between North and South Korea...
It is technically true that the 38th Parallel that forms the line between the two states was artificially created back in 1950 and, in the absence of any peace treaty, may appear to be something less than an actual boundary between two sovereign states. But international law, I suggest, has a very different take on this issue.
We may begin by considering two other cases where the question is whether a dividing line of some sort is the same as an international boundary. In the Israel-Palestine controversy, Israel has taken the position that the Palestinian failure to establish an "Arab state" when invited to do so by the United Nations in 1947 means that the Palestinians todayâin the West Bank or Gazaâhave no claim to inviolable borders. Israel has accordingly encroached on Palestinian territory as demarcated by the United Nations by sponsoring the development of Israeli settlements and elbowing out the Palestinians whose farms unhappily were in the areas occupied by the Jewish settlers. Israel has also erected a Wall that has been condemned as illegal by the International Court of Justice, not because a state cannot place a high barrier on its boundary, but because Israel has placed the wall primarily on the territory the Palestinians were given by the United Nations in 1947
Now consider the situation between China and Taiwan. Although there is a natural division between the two entities, namely the Strait of Taiwan, both sides claim that there is only one indivisible China. Taiwan claims sovereignty over all China under the name "Republic of China"; mainland China agrees, but claims that it is the sole governing power under the name "People's Republic of China."
Neither the Korean, nor Palestinian, nor Chinese cases have been settled by a treaty of peace between the contesting sides. Historically there have been hundreds of disputed boundaries between states that were not settled by a formal Peace Treaty. But international law has a 4000-year-old principle that defines a state as having, among other things, a definite territory. This territorial principle throughout history has created a presumption in favor of a definite boundary between entities that claim sovereign power. Once a presumption is in place, it is satisfied by the best available evidence. Often the best evidence has been a natural boundary such as a river or a deep valley. Evidence has also included the oldest maps of the region, on the presumption that they were taken by both sides as depicting the boundary. A boundary could also be presumed from stones placed as mile-markers or by the records of surveyors.
Of the three cases we are presently considering, the presumptive territoriality principle of international law would seem to be the strongest as between North and South Korea. Both North and South Korea regard themselves, and regard each other, as states. Unlike China where both sides regard themselves as a single state, or Palestine where for reasons of its own Palestine never became a state, North Korea and South Korea are distinct territories under international law. Hence there must be an international boundary between them. The 38th Parallel appears on all maps as indicating the precise boundary.
The armistice which North Korea now disavows was, for boundary purposes, nothing more than a piece of evidence establishing the 38th Parallel. That Parallel constituted the original line of aggression between North and South in 1950 and continued through the armistice agreement up to the present time.
The international law principle of territoriality of states cannot be altered by the action of a single state. (If it could, then we would be talking about "exceptionalism" or some other Know-Nothing argument that in effect denies the existence of international law.) It is true that North and South Korea, or any two states sharing a common boundary, can alter the boundary by mutual consent. But North Korea cannot unilaterally alter its boundary with South Korea.
Therefore it is quite curious why North Korea disavows the armistice. Is it saying that it is free to attack South Korea because any such attack would not cross an international boundary and hence should be regarded as an internal conflict? Such a claim would have no effect whatsoever on the boundary nor upon South Korea's right of self-defense that is inherent in all states. At most it would mean that North Korea is estopped to argue that South Korea would be committing illegal aggressive warfare if it ignores the border and attacks the North.
Curious. And irrational. North Korea is either counting on a display of irrationality to intimidate neighboring states, or it simply is unaware of the rules of international law that will be respected and enforced by all states if North Korea attempts to act upon its threats.
Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.