“Betwixt and between” is the term that best describes South Korea when it comes to determining the legal status of North Korea. In the South’s legal system, North Korea is not regarded as an independent, separate state. Our Constitution describes “the whole Korean Peninsula and adjacent islands” as the territory of the Republic of Korea; hence its northern part is simply considered an unrecovered territory under the temporary rule of a rebellious entity. And yet, Seoul has had to deal with Pyongyang as a counterpart, a very effective one indeed, over the past seven decades.
We all see the mile-wide gap between the official description and the reality, but it has been one of the cardinal rules of the constitutional regime. When faced with specific legal questions, the Korean Supreme Court and the Constitutional Court repeatedly confirmed this constitutional principle. South Korea in the North’s legal regime has been no different.
Here is the practical consequence of this firm position: The possibility of concluding legally binding documents between the two sides, as between two sovereign states, has been systematically precluded. Check all inter-Korea documents signed so far. They are not even called “agreements” (as the term is used to mean treaties), but instead called “arrangements.” Under the Korean law, they have been treated as aspirational “gentlemen’s agreements” -- meaning not legally binding. So, when the relations soured, these documents were rendered virtually meaningless. Neither side bothered to refer to them.
In my view, the “unsettled” nature of these documents stemming from the “unsettled” nature of the legal status of the two Koreas in the other’s eyes and system is one of the many reasons that these documents have not been taken seriously or fully implemented.
Well, a prospective Korean peace treaty may finally handle the dichotomy between the reality and the legal fiction. A peace treaty does not just mean the end of the hostilities. Its conclusion also automatically means that the two Koreas will now recognize each other as legitimate states, and as sovereign counterparts. Which in turn would mean that they are now ready to conclude “agreements” that are legally binding on both.
Assuming that the June 12th summit meeting in Singapore goes well, as it seems now, a peace treaty will be within reach sometime soon. As soon as the treaty is inked, massive economic assistance and cooperative programs will head to the North. As it pledges, South Korea will be quick in resuming and expanding the suspended economic cooperation projects with North Korea. South Korean corporations may test the water a little bit, reflecting their bitter experience from the Kaesong Industrial Complex investment and hurried exit. But as soon as they confirm that this time is different, they will be happy to make robust investment in projects in the North.
Emerging projects and new investment will all have to entail various documents, both at individual entities’ and the two governments’ levels. How these documents are now going to be treated will become ever more important. That the two Koreas recognize each other legally as well as practically is an important first stride for a stable and sustainable cooperative framework. In terms of managing the economic cooperation projects with the North, the most important change in the post-peace regime is this mutual recognition, done officially and legally.
Once a new framework is adopted, within the domestic legal regime there are many places that need corresponding changes. There are certain provisions in the Constitution and statutes that will be out of sync with the new development. When and how to make these changes will be controversial. From abroad, other countries will demand the two Koreas follow in their dealings key principles applicable to, say, two sovereign states, trying to keep at bay two Koreas’ preferential treatment toward each other. A lot of homework is waiting for us in the uncharted territory after June 12th.
Lee Jae-min is a professor of law at Seoul National University. He can be reached at firstname.lastname@example.org. -- Ed.