Haunting Phantom on the Way to the Korean Reunification? The Chinese People's Volunteer Army in the Korean War and Its Legal Questions

Author:Eric Yong Joong Lee
Pages:107-126
SUMMARY

Although relationships among the former belligerent parties of the Korean War have changed drastically over the decades, the parties still remain under the armistice system because the Korean War is not over legally. The primary purpose of this research is to analyze questions related to the Chinese People's Volunteer Army in the Korean War from an international legal perspective. As a new topic, ... (see full summary)

 
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CPVA 107
VII JEAIL 1 (2014)
Eric Yong Joong Lee
Although relationships among the former belligerent parties of the Korean War have
changed drastically over the decades, the parties still remain under the armistice
system because the Korean War is not over legally. The primary purpose of this
research is to analyze questions related to the Chinese Peoples Volunteer Army
in the Korean War from an international legal perspective. As a new topic, this is
intended to be a precautionary examination of an issue that could haunt the eventual
process of peacemaking on the Korean peninsula. The main text of this article consists
     
entering the Yalu River was self-defense under Article 51 of the UN Charter. The
second part covers various legal questions relating to armed hostilities in the Korean
War under international law. The third part discusses the legal questions around an
armistice negotiation.
Keywords
CPVA, Korean War, Armistice, POWs, 38th Parallel, Self-Defense, UN
Forces, MacArthur, Peng Teh-Huai
China and Korea are neighboring countries, as closely related as lips and teeth.
If the lips are gone, the teeth are exposed to the cold.
Zhou En-lai
Haunting Phantom
on the Way to the Korean

People

in the Korean War and

Professor of International Law at Dongguk University, Seoul, Korea; President of YIJUN Institute of International
Law. B.A.(U. Washington), M.P.A.(S.N.U.), LL.M.(Leiden), Dr. iur.(Erasmus). ORCID: http://orcid.org/0000-0001-
5640-490X. This work was supported by the research program of Dongguk University. The author may be contacted
at: grotian@hotmail.com / Address: 562 Gwangnaruro, Kwangjin-gu #201 Seoul 143-821 Korea.
DOI: http://dx.doi.org/10.14330/jeail.2014.7.1.05
2014-05-23 오후 2:20:38
108 Eric Y. J. Lee

Sixty years have passed since the Korean Armistice Agreement was concluded.
Over the past decades, relationships among the former belligerent parties have
changed dramatically; China has become the largest trading partner of South Korea
       
    
still remain under the armistice system because the Korean War is not over legally.
Entering the new millennium, the relevant parties began trying to build permanent
peace in the Korean peninsula, the first step of which should be replacing the
current Armistice Agreement with a true peace treaty. As South Korean President
     
Germany on March 28, 2014,
1
the peacemaking process between the two Koreas
is expected to be accelerated. In this course, however, the Chinese position as a
signer of the Armistice may be questionable due to her highly political stance to the
military actions, especially through volunteers during the Korean War.
This research aims to analyze questions regarding the Chinese Peoples Volunteer
Army (CPVA) in the Korean War from an international legal perspective. As
a newly tackled topic, it is intended to provide a precautionary examination of
an issue that could haunt the eventual process of peacemaking on the Korean
    
Part two will examine the international legal causes of the Chinese militarys
intervention in the unusual form of volunteers. Whether the CPVA entering Korea
was self-defense will be analyzed here. Part three will cover various legal questions
relating to armed hostilities in the Korean War. The CPVAs offensives, declaration
of war, and belligerent status will be tackled in terms of international law. Part four
will discuss the legal questions in the armistice negotiation. The POW-related issues
and the CPVAs position in relation to the Peoples Republic of China (PRC) in the
Armistice will be analyzed.
This paper has been written as of today, sixty years after the Armistice
Agreement. However, international law, especially the law of war invoked here is
mainly that of 1953. Additionally, this research will be carried out positively with
an international legal viewpoint. The author has endeavored to exclude any political
or ideological views regarding the Korean War and the CPVA in this research.
1 Tae-gyu Kim & Min-uck Chung, Park hints at flexible approach in aid to NK, Korea Times, Mar. 28, 2014, available
at http://koreatimes.co.kr/www/news/nation/2014/03/113_154245.html (last visited on May 1, 2014).
05-Article-Eric YongJoongLee(107-126).indd 108 2014-05-23 오후 2:20:38

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