CHAPTER TWO
“INTERNATIONAL LAW IN CONTEXT:
THE KOREAN PENINSULA 1950-1999”
The readings below focus on a particular place at two particular times.
The place is the Korean peninsula. The times are the early 1950s and the mid1990s.
The chapter is in three sections:
 The Korean War and the United Nations
 The Korean War, the US President, and the US Supreme Court
 North Korea, the United States, and Nuclear Non-Proliferation
Chapter One introduced you to international legal concepts, but it did so
without much reference to particular legal rules or to the application of those rules
to particular facts. The readings on theories of international relations in the fourth
section of Chapter One introduced you to the potential applicability of politicalscience theory to questions of international law, but, like the ICJ Statute and the
excerpts from the Restatement of Foreign Relations Law in the second and third
sections of Chapter One, these readings lacked much in the way of specific
references to particular laws or facts.
This chapter, in contrast, is aimed at examining some specific rules of
international and US law as they operated against a specific background of
political and historical facts.
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INTERNATIONAL LAW IN CONTEXT
In doing so, we’ll examine in some detail lawmaking and politics at the
apex of the hierarchies of international and domestic law: the United Nations (for
international law) and the US Supreme Court (for domestic law). We’ll examine
laws about what are in some sense the first principles of the international and
domestic legal systems: the idea that the United Nations should act to prevent
threats to international peace and security, and the checks-and-balances idea that
the Supreme Court interprets the Constitution to constrain the President from
acting without sufficient action by the Congress.
You will recall (from Question 2 of the Six Main Questions in the first
section of Chapter One) that there are four main areas of concern in international
law: foundational issues of the international legal system, security, economics,
and the commons. Chapter Three and subsequent chapters focus on some
particular aspect of one of the four main areas of concern. This chapter is mostly
about security-related issues—the response of the United Nations to cross-border
aggression, the President’s power to take actions based on the fact that US armed
forces are engaged in active hostilities, and the proliferation of nuclear weapons—
but the conceptual emphasis is on these issues as representative of the
international legal system as a whole rather than as a distinct sub-topic within
international law.
Sections One and Two of this chapter both involve legal questions arising
out of the Korean War, which began in 1950. (Active hostilities ceased in 1953,
although no peace treaty among the combatants has been signed as of this
writing.) Section One involves matters of international law, i.e. the actions of the
United Nations. Section Two involves a matter of what one might think of as
domestic law, i.e., an opinion by the US Supreme Court concerning the
constitutional authority of the President. Nonetheless, the controversy at issue
flowed directly from the Korean War, and the opinion addresses the President’s
powers to take action based on national-security justifications. Section Three
examines much more recent events: the actions of the United States, North Korea,
and other nations in the 1990s concerning the possible or potential possession of
nuclear weapons by North Korea.
CHAPTER TWO—A CASE STUDY: KOREA
57
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INTERNATIONAL LAW IN CONTEXT

Background (Optional) Reading:
A Very Brief History of the Korean Peninsula
For those of you who haven’t previously studied Korea, here’s a very brief
overview of events in Korea between 1393 and 1998.
Generally. The Korean peninsula was the site of a single, independent nation
(ruled by one dynasty, the Choson) from 1393 until 1910. Japan occupied (and to
some extent colonized) Korea from 1910 until 1945. In 1945, the northern portion of
the peninsula was occupied by Soviet troops and the southern portion by US troops.
Between 1945 and 1953, the division of the Korean peninsula into two nations—a
communist North Korea and a non-communist South Korea—ossified with the
beginnings of the Cold War and with the Korean War. The Korean Peninsula remains
divided into two nations to this day. South Korea’s official name is the Republic of
Korea (ROK); North Korea’s official name is the Democratic People’s Republic of
Korea (DPRK).
The Korean War. The early 1950s saw the Korean peninsula ravaged by the
Korean War. The Korean War was the first significant employment of the rules and
procedures of the United Nations as an instrument in an international crisis (the
subject of Section Two), and it also led to an important case in the US Supreme Court
on the limits of presidential authority (the Subject of Section Three). The warring
nations signed a cease-fire agreement in 1953 but have yet to reach agreement on a
formal peace treaty.
North Korea and Nuclear Proliferation. The mid-1990s saw the world’s
attention return to the Korean peninsula when North Korea, a dictatorship of Stalinist
thoroughness and more-than-Stalinist longevity, appeared to be on the verge of
renouncing its obligation under the Treaty for the Non-Proliferation of Nuclear
Weapons (or “NPT,” for “Non-Proliferation Treaty”) and developing its own nuclear
bomb. The short-term resolution to the difficulty involved North Korea’s pledge to
continue to adhere to the NPT and a pledge by the US, embodied in an international
agreement, to obtain for North Korea nuclear-power technology not readily useful in
constructing nuclear weapons.
CHAPTER TWO—A CASE STUDY: KOREA
59
SECTION ONE
The Korean War and the United Nations
Immediately below is a short reading about Korea in the first half of the
20 century. (It is followed by a much more detailed reading focused on the
Korean War itself.)
th
KOREAN HISTORY, 1910-1950
Microsoft Encarta ‘97 (bundled version)
Reproduced for Educational Purposes Only.
No Charge for Distribution.
From “Korea,” Microsoft® Encarta® 97 Encyclopedia.
© 1993-1996 Microsoft Corporation. All rights reserved.
JAPANESE RULE (1910-45)
Japanese domination of Korea actually began with the Protectorate Treaty
(1905), forced on the country after the Russo-Japanese War, under which Japan
assumed control of Korea’s foreign relations and ultimately of its police and
military, currency and banking, communications, and all other vital functions.
These changes were tenaciously resisted by the Koreans, from King Kojong at the
top to guerrilla armies at the bottom. Formal annexation followed when it was
realized that the Koreans would never accept nominal sovereignty with actual
Japanese control. From 1910 to 1918 Japan solidified its rule by purging
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INTERNATIONAL LAW IN CONTEXT
nationalists, gaining control of the land system, and enforcing rigid administrative
changes. In 1919 these measures, along with the general demand for national selfdetermination following World War I, led to what is known as the March First
Movement. Millions of Koreans took to the streets in nonviolent demonstrations
for independence, but foreign support was not forthcoming, Japanese power was
great, and the movement was suppressed. In the following years Japan tightened
its control, suppressing nationalist movements. Efforts aimed at assimilation,
including such draconic measures as the outlawing of the Korean language and
even of Korean family names, stopped only with Japan’s defeat in World War II.
POSTWAR PARTITION
Shortly before the end of the war in the Pacific, the U.S. and the USSR
agreed to divide Korea at the 38th parallel for the purpose of accepting the
surrender of Japanese troops. Both powers, however, used their presence to
promote friendly governments. The USSR suppressed the moderate nationalists in
the north and gave its support to Kim Il Sung, a Communist who had led antiJapanese guerrillas in Manchuria. In the south was a well-developed leftist
movement, opposed by various groups of right-wing nationalists. Unable to find a
congenial moderate who could bring these forces together, the U.S. ended up
suppressing the left and promoting Syngman Rhee, a nationalist who had opposed
the Japanese and had lived in exile in the U.S. All Koreans looked toward
unification, but in the developing cold war atmosphere, U.S.-Soviet unification
conferences (1946, 1947) broke up in mutual distrust. In 1947 both powers began
arranging separate governments. U.S.-sponsored elections in 1948, observed by
the United Nations, led to the founding of the Republic of Korea in August 1948.
The north followed in September 1948 by establishing the Democratic People’s
Republic of Korea (DPRK). On June 25, 1950, DPRK forces attacked across the
38th parallel, starting the Korean War.
CHAPTER TWO—A CASE STUDY: KOREA
61
The reading that begins just after the map on the next page is excerpted
from a political scientist’s history of American foreign policy from 1938 to 1985.
{Its author, Stephen E. Ambrose, has mostly gone on to write view-from-thefoxhole combat histories of World War II in the European Theater of Operations,
such as D-Day June 6, 1944: The Climactic Battle of World War II and Citizen
Soldiers : The U.S. Army from the Normandy Beaches to the Bulge to the
Surrender of Germany, June 7, 1944-May 7, 1945 and, most recently, the doublecoloned The Victors: Eisenhower and His Boys: The Men of World War II. Those
with an interest in what Thomas Jefferson did between writing the Declaration of
Independence and founding the University of Virginia—I think he held some kind
of political office or something—might take note of Ambrose’s Undaunted
Courage: Meriwether Lewis, Thomas Jefferson, and the Opening of the American
West.}
The reading below is intended to provide you with a general historical and
political introduction to the Korean War. Subsequent readings provide you with
some material more explicitly involving international and domestic law.
Immediately below, just before the reading, is a map from Encyclopedia
Americana that you may find useful.
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INTERNATIONAL LAW IN CONTEXT
Map Goes Here
CHAPTER TWO—A CASE STUDY: KOREA
63
RISE TO GLOBALISM:
AMERICAN FOREIGN POLICY SINCE 1938
4th Revised Edition (1985)
by Stephen E. Ambrose
Reproduced for Educational Purposes Only.
Distributed at No Charge.
Copyright 1985 by Stephen E. Ambrose
CHAPTER SEVEN: KOREA
[The author begins the narrative with the situation in Asia in early 1950.]
... In China Mao’s armies were being deployed for an assault on Formosa,
where the remnants of Chiang’s forces had retreated. The United States had
stopped all aid to Chiang, thereby arousing the fury of the Republicans. Truman
was under intense pressure to resume the shipment of supplies to the Nationalist
Chinese. Former President Herbert Hoover joined with Senator Taft in demanding
that the U.S. Pacific Fleet be used to prevent an invasion of Formosa.
In Japan the United States was preparing to write a unilateral peace treaty
with that country, complete with agreements that would give the United States
military bases in Japan on a long-term basis. But in early 1950 the Japanese
Communist Party staged a series of violent demonstrations against American
military personnel in Tokyo. Even moderate Japanese politicians were wary of
granting base rights to the American forces. The U.S. Air Force was confronted
with the possibility of losing its closest airfields to eastern Russia.
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INTERNATIONAL LAW IN CONTEXT
In Korea all was tension. Postwar Soviet-American efforts to unify the
country, where American troops had occupied the area south of the thirty-eighth
parallel and Russia the area to the north, had achieved nothing. In 1947 the United
States had submitted the Korean question to the UN General Assembly for
disposition. Russia refused to go along. Elections were held anyway in South
Korea in May 1948 under UN supervision. Syngman Rhee became President of
the Republic of Korea. The Russians set up a Communist puppet government in
North Korea. Both the United States and the Soviets withdrew their occupation
troops; both continued to give military aid to their respective sides, although the
Russians did so on a larger scale.
Rhee was a petty dictator and thus an embarrassment to the United States.
In April 1950 Acheson told Rhee flatly that he had to hold elections. Rhee
agreed, but his own party collected only 48 seats in the Assembly, with 120 going
to other parties, mostly on the Left. The new Assembly immediately began to
press for unification, even if on North Korean terms. Rhee was on the verge of
losing control of his government. On June 25, North Korean troops crossed the
thirty-eighth parallel in force. ...
Truman was ready with his countermeasures. Within hours of the attack he
ordered MacArthur to send supplies to the South Koreans. He also sent the U.S.
Seventh Fleet to the Formosan Straits to prevent a possible Chinese invasion of
Formosa, and he promised additional assistance to counter revolutionary forces in
the Philippines and Indochina.
These were sweeping policy decisions. Using the Seventh Fleet to protect
Formosa constituted a complete reversal of policy with respect to the Chinese
civil war. Having MacArthur ship supplies to Rhee’s troops carried with it the
implication that the United States would defend South Korea. Among other
things, the decision carried with it the possibility of the introduction of American
troops into the battle, for it was already doubtful that the South Koreans would be
able to hold out alone.
Since 1941 the United States had pursued a military policy of avoiding
ground warfare on mainland Asia. When the country pulled out of Korea in 1948
there were no American troops stationed anywhere on the Continent. Truman was
on the verge of changing the policy and extending American military power to the
Asian mainland.
CHAPTER TWO—A CASE STUDY: KOREA
65
On June 25, the day the attack began, the United States launched a massive
diplomatic counterattack. In the Security Council she pushed through a resolution
branding the North Koreans as aggressors, demanding a cessation of hostilities,
and requesting a withdrawal behind the thirty-eighth parallel. The resolution’s
sweeping nature gave the United States the advantage of United Nations approval
and support for military action in Korea. This was the first time ever that an
international organization had actually taken concrete steps to halt and punish
aggression (Russia failed to veto the resolution because she was boycotting the
United Nations at the time because it refused to give Chiang’s seat on the Security
Council to Mao), and it lifted spirits throughout the country. Despite the UN
involvement, however, the overwhelming bulk of equipment used in Korea and
the overwhelming number of non-Korean fighting men came from the United
States. ...
... Truman announced that he had “ordered United States air and sea forces
to give the Korean Government troops cover and support.” His Air Force advisers
had convinced him that America’s bombers would be able to stop the aggression
in Korea by destroying the Communist supply lines. ...
... Much of this was wishful thinking. It was partly based on the American
Air Force’s strategic doctrine and its misreading of the lessons of air power in
World War II, partly on the racist attitude that Asians could not stand up to
Western guns, and partly on the widespread notion that Communist governments
had no genuine support. Lacking popularity, the Communists would be afraid to
commit their troops to battle, and if they did, the troops would not fight.
The question of who would fight and who would not was quickly
answered. The North Koreans drove the South Koreans down the peninsula in a
headlong retreat. American bombing missions slowed the aggressors not at all.
The South Koreans fell back in such a panic that two days after Truman sent in
the Air Force he was faced with another major decision: He would either have to
send in American troops to save the position, which meant accepting a much
higher cost for the war than he had bargained for, or else face the loss of all
Korea, at a time when the Republicans were screaming, “Who lost China?”
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INTERNATIONAL LAW IN CONTEXT
On June 30 Truman ordered United States troops stationed in Japan to
proceed to Korea. America was now at war on the mainland. The President
promised that more troops would soon be on their way from the United States. In
an attempt to keep the war and its cost limited, he emphasized that the United
States aimed only “to restore peace and ... the border.” At the United Nations the
Americans announced that their purpose was the simple one of restoring the
thirty-eighth parallel as the dividing line. The policy, in other words, was
containment, not rollback.
It had been arrived at unilaterally, for Truman had not consulted his
European or Asian allies before acting, not to mention Congress. … Once again,
as in F.D.R.’s war on the Atlantic in the summer of 1941, the United States found
itself at war without the Constitutionally required congressional declaration of
war.
In Korea, American reinforcements arrived just in time, and together with
the South Koreans they held on in the Pusan bridgehead through June and July.
By the beginning of August it was clear that MacArthur would not be forced out
of Korea and that when MacArthur’s troops broke out of the perimeter they would
be able to destroy the North Korean Army. ...
... On September 15 MacArthur successfully outflanked the North Koreans
with an amphibious landing at Inchon, far up the Korean peninsula. In a little
more than a week MacArthur’s troops were in the capital, Seoul, and they had cut
off the bulk of the North Korean forces around Pusan. On September 27 the Joint
Chiefs ordered MacArthur to destroy the enemy army and authorized him to
conduct military operations north of the thirty-eighth parallel. On October 7
American troops crossed the parallel. The same day the United Nations approved
(47 to 5) an American resolution endorsing the action. ...
The Chinese issued a series of warnings, culminating with a statement to India
for transmission to the United States, that China would not “sit back with folded
hands and let the Americans come to the border.” When even this was discounted, the
CHAPTER TWO—A CASE STUDY: KOREA
67
Chinese publicly stated on October l0 that if the Americans continued north, they
would enter the conflict. The Russians were more cautious, but when on October 9
some American jet aircraft strafed a Soviet airfield only a few miles from
Vladivostok, they sent a strong protest to Washington. Truman immediately decided
to fly to the Pacific to see MacArthur and make sure he restrained the Air Force.
Fighting Chinese forces in Korea was one thing, war with Russia another. The
Americans were willing to try to liberate Pyongyang, but they were not ready to
liberate Moscow.
The Truman-MacArthur meeting at Wake Island in October accomplished its
main purpose, for the Air Force thereafter confined its activities to the Korean
peninsula. More important was what it revealed. Commentators have concentrated
almost exclusively on MacArthur’s statement that the Chinese would not dare enter
the war. On this point everybody, not just MacArthur, was wrong. ...
...[T]he Chinese had not been seen nor were they expected in Korea.
MacArthur flew back to Tokyo to direct the last offensive. By October 25 his forces
reached the Yalu at Chosan. That day Chinese “volunteers” struck South Korean and
American troops around the Choshin Reservoir. After hard fighting MacArthur’s units
fell back. The Chinese then retired. They had, by their actions, transmitted two
messages: (I) they would not allow MacArthur’s forces to proceed unmolested to the
Yalu, and (2) their main concern continued to be Formosa, and like Truman they
wanted to limit the fighting in Korea. The second message was reinforced by Peking’s
acceptance of an invitation to come to the United Nations to discuss the Formosa
situation and, hopefully, the Korean War. ...
MacArthur planned to launch another ground offensive on November 15,
which would have coincided with the announced date of arrival of the Chinese
delegates at the United Nations. The delegates, however, were delayed. On November
11 MacArthur learned of the delay, and later that the Chinese delegation would arrive
at the United Nations on November 24. MacArthur put off his offensive, finally
beginning it on the morning of November 24. Thus the headlines that greeted the
Chinese delegates when they arrived at the United Nations declared that MacArthur
promised to have the boys “home by Christmas,” after they had all been to the Yalu.
The Americans were once again marching to the Chinese border, this time in greater
force.
Europeans were incensed. The French government charged that
MacArthur had “launched his offensive at this time to wreck the negotiations” and
the British New Statesman declared that MacArthur had “acted in defiance of all
common sense, and in such a way as to provoke the most peace-loving nation.”
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INTERNATIONAL LAW IN CONTEXT
The Chinese delegation at the United Nations soon packed its bags and returned to
Peking, taking with it only what it had brought plus some additional bitterness.
The failure of the negotiations did not upset Truman, but the failure of the
offensive did. MacArthur had advanced on two widely separated routes, with his
middle wide open. How he could have done so, given the earlier Chinese
intervention, remains a mystery to military analysts. The Chinese poured
thousands of troops into the gap and soon sent MacArthur’s men fleeing for their
lives. In two weeks the Chinese cleared much of North Korea, isolated
MacArthur’s units into three bridgeheads, and completely reversed the military
situation.
The Americans, who had walked into the disaster together, split badly on
the question of how to get out. MacArthur said he now faced “an entirely new
war” and indicated that the only solution was to strike at China itself. But war
against China might well mean war against Russia, which Truman was not
prepared to accept. Instead, the administration decided to return to the pre-Inchon
policy of restoring the status quo ante bellum in Korea while building NATO
strength in Europe. All talk of liberating iron curtain capitals disappeared. Never
again would the United States attempt by force of arms to free a Communist state.
A lesson had been learned, but not fully accepted immediately, and it was
enormously frustrating. Just how frustrating became clear on November 30, when
at a press conference Truman called for a worldwide mobilization against
Communism and, in response to a question, declared that if military action against
China was authorized by the United Nations, MacArthur might be empowered to
use the atomic bomb at his discretion. Truman casually added that there had
always been active consideration of the bomb’s use, for after all it was one of
America’s military weapons.
Much alarmed, British Prime Minister Atlee flew to Washington, fearful
that Truman really would use the bomb [but Truman eventually] assured Atlee
that every effort would be made to stay in Korea and then promised that as long as
MacArthur held on[,] there would be no bombs dropped.
... Truman put the nation on a Cold War footing. He got emergency
powers from Congress to expedite war mobilization, reintroduced selective
service, submitted a $50-billion defense budget ..., sent two more divisions (a total
of six) to Europe, doubled the number of air groups to ninety-five, obtained new
CHAPTER TWO—A CASE STUDY: KOREA
69
bases in Morocco, Libya, and Saudi Arabia, increased the Army by 50 percent to
3.5 million men, pushed forward the Japanese peace treaty, stepped up aid to the
French in Vietnam, initiated the process of adding Greece and Turkey to NATO,
and began discussions with Franco that led to American aid to Fascist Spain in
return for military bases there.
Truman’s accomplishments were breathtaking. He had given the United
States a thermonuclear bomb (March 1951) and rearmed Germany. He pushed
through a peace treaty with Japan (signed in September 1951) that excluded the
Russians and gave the Americans military bases, allowed for Japanese
rearmament and unlimited industrialization, and encouraged a Japanese boom by
dismissing British, Australian, Chinese; and other demands for reparations.
Truman extended American bases around the world, hemming in both Russia and
China. He had learned, in November of 1950, not to push beyond the iron and
bamboo curtains, but he had made sure that if any Communist showed his head on
the free side of the line, someone—usually an American—would be there to shoot
him. ...
... In January and February 1951 MacArthur resumed the offensive and
drove the Chinese and North Koreans back. By March he was again at the thirtyeighth parallel. The administration, having been burned once, was ready to
negotiate. MacArthur sabotaged the efforts to obtain a cease-fire by crossing the
parallel and by demanding an unconditional surrender from the Chinese. Truman
was furious. He decided to remove the General at the first opportunity.
It came shortly. On April 5 Representative Joseph W. Martin, Jr.,
Republican, read to the House a letter from MacArthur calling for a new foreign
policy. The General wanted to reunify Korea, unleash Chiang for an attack on the
mainland, and fight Communism in Asia rather than in Europe. “Here in Asia,” he
said, “is where the communist conspirators have elected to make their play for
global conquest. Here we fight Europe’s war with arms while the diplomats there
still fight it with words.”
Aside from the problem of a soldier challenging Presidential supremacy by
trying to get foreign policy, the debate centered on Europe-first versus Asia-first.
...
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INTERNATIONAL LAW IN CONTEXT
After Truman relieved him MacArthur returned to the United States to
receive a welcome that would have made Caesar envious. Public opinion polls
showed that three out of every four Americans disapproved of the way
Truman was conducting the war. ...
[Despite US reticence, the] pressure from the United Nations and the
NATO allies to negotiate could not be totally ignored, ... and on July 10, 1951,
peace talks—without a cease-fire—began. They broke down on July 12. For the
remainder of the year, they were on again, off again. The front lines began to
stabilize around the thirty-eighth parallel while American casualties dropped to an
“acceptable” weekly total. The war, and rearmanent, continued.
CHAPTER TWO—A CASE STUDY: KOREA
71
QUESTION
For Ambrose, what determines the course of history? Politics? Personality?
Ideas? The earlier course of history? International law? Domestic law?
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INTERNATIONAL LAW IN CONTEXT
Below are some excerpts from the UN Charter that are especially relevant
to the international legal aspects of the Korean War.
CHARTER OF THE UNITED NATIONS
Signed at San Francisco on 26 June 1945.
Entered into force on 24 October 1945.
Current version (as amended).
Reproduced for Educational Purposes Only.
Distributed at No Charge.
This document is available at the UN Web site (www.un.org); the United Nations
does not appear to claim a copyright with respect to its publications.
Article 2
…
4. All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United Nations.
Article 51
Nothing in the present Charter shall impair the inherent right of individual
or collective self-defense if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. …
CHAPTER V:
CHAPTER TWO—A CASE STUDY: KOREA
73
THE SECURITY COUNCIL
Article 23
1. The Security Council shall consist of fifteen Members of the United
Nations. The People’s Republic of China, France, the [Russian Federation], the
United Kingdom of Great Britain and Northern Ireland, and the United States of
America shall be permanent members of the Security Council. The General
Assembly shall elect ten other Members of the United Nations to be nonpermanent members of the Security Council …
Article 27
1. Each member of the Security Council shall have one vote.
2. Decisions of the Security Council on procedural matters shall be made
by an affirmative vote of nine members.
3. Decisions of the Security Council on all other matters shall be made by
an affirmative vote of nine members including the concurring votes of the
permanent members ….
CHAPTER VII:
ACTION WITH RESPECT TO THREATS TO THE PEACE,
BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make recommendations,
or decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.
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INTERNATIONAL LAW IN CONTEXT
Article 41
The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions ….
Article 42
Should the Security Council consider that measures provided for in Article
41 would be inadequate or have proved to be inadequate, it may take such action
by air, sea, or land forces as may be necessary to maintain or restore international
peace and security. Such action may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the United Nations.
Article 48
1. The action required to carry out the decisions of the Security Council for
the maintenance of international peace and security shall be taken by all the
Members of the United Nations or by some of them, as the Security Council may
determine.
2. Such decisions shall be carried out by the Members of the United
Nations directly and through their action in the appropriate international agencies
of which they are members.
FROM the UN Web Site at
http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/i_boo/i_1.html
CHAPTER TWO—A CASE STUDY: KOREA
75
SOME UN SECURITY COUNCIL RESOLUTIONS
RELATING TO KOREA
Reproduced for Educational Purposes Only.
Distributed at No Charge.
The UN does not appear to claim a copyright with respect to its publications.
UN SECURITY COUNCIL RESOLUTION 82
Resolution of 25 June 1950 [S/1501]
COMPLAINT OF AGGRESSION UPON THE REPUBLIC OF KOREA
The Security Council,
Recalling the finding of the General Assembly in its resolution 293 (IV) of
21 October 1949 that the Government of the Republic of Korea is a lawfully
established government having effective control and jurisdiction over that part of
Korea where the United Nations Temporary Commission on Korea was able to
observe and consult and in which the great majority of the people of Korea reside;
that this Government is based on elections which were a valid expression of the
free will of the electorate of that part of Korea and which were observed by the
Temporary Commission; and that this is the only such Government in Korea, …
Noting with grave concern the armed attack on the Republic of Korea by
forces from North Korea,
Determines that this action constitutes a breach of the peace; and
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INTERNATIONAL LAW IN CONTEXT
I
Calls for the immediate cessation of hostilities;
Calls upon the authorities in North Korea to withdraw forthwith their
armed forces to the 38th parallel;
Calls upon all Member States to render every assistance to the United
Nations in the execution of this resolution and to refrain from giving assistance to
the North Korean authorities.
—Adopted at the 473rd meeting by 9 votes to none, with one abstention
(Yugoslavia). One member (Union of Soviet Socialist Republics) was absent.
[Some notes on the last line above:]
[Originally, article 23 of the Charter specified 11 members in the Security
Council, not the current version’s 15. Article 27(2) and 27(3) referred to 7 votes,
not the current version’s 9.]
[The growth in membership on the Security Council has been entirely in
non-permanent members. There were five permanent members in 1950, just as
there are now. Three of those five permanent members are exactly the same now
as in 1950: France, Great Britain, and the United States. Two, however, are at
least nominally different. The Union of Soviet Socialist Republics (“Soviet
Union”) then held the seat now held by the Russian Federation. The Republic of
China (with its operational capital in Taipei on the island of Formosa, a.k.a.
Taiwan) then held the seat now held by the People’s Republic of China (with its
capital in Beijing).]
[The absence of the Soviet Union from the meeting resulting in the
Resolution above was deliberate. The Soviet Union was protesting the decision
by the United Nations to seat the Republic of China in the UN (and on its Security
Council) rather than seating the People’s Republic of China.]
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77
QUESTIONS ABOUT RESOLUTION 82
(1) Take another look at Article 2(4) of the Charter on page 71. Based on
the Ambrose reading, would you say that, as of June 25, 1950, South Korea faced
a “threat or use of force against [its] territorial integrity or political integrity”
mentioned in Article 2(4) of the Charter?
(2) Suppose that you were a lawyer working in the US Department of State
in 1950, and you were asked to advise President Truman as to whether Resolution
82 had a substantive legal basis in the UN Charter. What would you say?
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INTERNATIONAL LAW IN CONTEXT
QUESTIONS ABOUT RESOLUTION 82
(continued)
(3) Does your answer to question (2) above change depending on whether
North Korea and/or South Korea was a member of the UN in 1950? (In fact,
neither was a member of the UN until 1991.)
(4) Why might President Truman care about whether Resolution 82 had a
legal basis in the UN Charter? Why might he not care?
CHAPTER TWO—A CASE STUDY: KOREA
79
QUESTIONS ABOUT RESOLUTION 82
(concluded)
(5) What do you think would have happened if the Soviet Union had
attended the 473rd meeting of the Security Council? Do you base your answer on
political or legal factors?
(6) Look back at Article 27 of the Charter on page 72. If you represented
the Soviet Union, what argument could you make from the simple absence of the
Soviet Union from the meeting?
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INTERNATIONAL LAW IN CONTEXT
UN SECURITY COUNCIL RESOLUTION 83
Resolution of 27 June 1950 [S/1511]
The Security Council, ...
Having noted from the report of the United Nations Commission on Korea
[citation to UN document omitted] that the authorities in North Korea have
neither ceased hostilities nor withdrawn their armed forces to the 38th parallel,
and that urgent military measures are required to restore international peace and
security,
Having noted the appeal from the Republic of Korea to the United Nations
for immediate and effective steps to secure peace and security,
Recommends that the Members of the United Nations furnish such
assistance to the Republic of Korea as may be necessary to repel the armed attack
and to restore international peace and security in the area.
—Adopted at the 474th meeting by 7 votes to 1 (Yugoslavia). Two
members (Egypt and India) did not participate in the voting; one member (Union
of Soviet Socialist Republics) was absent.
QUESTION ABOUT RESOLUTION 83
What new obligations in international law does this resolution create?
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81
UN SECURITY COUNCIL RESOLUTION 84
Resolution of 7 July 1950 [S/1588]
The Security Council, ...
1. Welcomes the prompt and vigorous support which Governments and
peoples of the United Nations have given to its resolutions 82 (1950) and 83
(1950) of 25 and 27 June 1950 to assist the Republic of Korea in defending itself
against armed attack and thus to restore international peace and security in the
area;
2. Notes that Members of the United Nations have transmitted to the
United Nations offers of assistance for the Republic of Korea;
3. Recommends that all Members providing military forces and other
assistance pursuant to the aforesaid Security Council resolutions make such forces
and other assistance available to the unified command under the United States of
America;
4. Requests the United States to designate the Commander of such forces;
5. Authorizes the unified command at its discretion to use the United
Nations flag in the course of operations against North Korean forces concurrently
with the flags of the various nations participating;
6. Requests the United States to provide the Security Council with reports
as appropriate on the course of action taken under the unified command.
—Adopted at the 476th meeting by 7 votes to none, with 3 abstentions
(Egypt, India, Yugoslavia). One member (Union of Soviet Socialist Republics)
was absent.
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INTERNATIONAL LAW IN CONTEXT
QUESTION ABOUT RESOLUTION 84
What new obligations in international law does this resolution create?
CHAPTER TWO—A CASE STUDY: KOREA
83
UN SECURITY COUNCIL RESOLUTION 88
Resolution of 8 November 1950 [S/1892]
The Security Council, ...
Decides to invite, in accordance with rule 39 of the provisional rules of
procedure, a representative of the Central People’s Government of the People’s
Republic of China to be present during discussion by the Council of the special
report of the United Nations Command in Korea. [footnote omitted]
—Adopted at the 520th meeting by 8 votes to 2 (China, Cuba), with 1
abstention (Egypt)
QUESTION ABOUT RESOLUTION 88
Look back at Article 23 of the Charter on page 57. Given that China voted
against this measure, how must one characterize Resolution 88 in order for it to
have passed the Security Council?
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INTERNATIONAL LAW IN CONTEXT
UN SECURITY COUNCIL RESOLUTION 90
Resolution of 31 January 1951 [S/1995]
The Security Council,
Resolves to remove the item “Complaint of Aggression upon the Republic
of Korea’ from the list of matters of which the Council is seized.
—Adopted unanimously at the 531st meeting.
QUESTION ABOUT RESOLUTION 90
Note that the Soviet Union was present at the meetings leading to
Resolutions 89 and 90. Note furthermore that the Soviet Union and the United
States both voted in favor of both resolutions, even though the United States and
the Soviet Union were bitter rivals in 1951. The vote on Resolution 90 is
unanimous—indeed, the only Resolution in this series without any no-votes or
absences or abstentions or non-participations in the voting. Does that mean that
Resolution 90 is trivial?