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II. Unification Policy of Division
Since the bifurcation of Korea, the two Koreas have pursued changing unification policies. However, today, the Republic of Korea has an established plan known as the
“Unification Plan for the Korean Community” and North Korea has an alternative one known as the “Unification Plan of the Koryo Federation.”
The reunification plan of the Republic of Korea is characterized by the formation of the “Inter-Korean Coalition” stage as an intermediate stage, whereas the unification plan of North Korea forms the “Goryeo Federation” to achieve unification. The proposals from the Republic of Korea and the Democratic People’s Republic of Korea are different in method, but share one common theme: both propose a Commonwealth of the two Koreas.1 In this paper, “necessity of unification” refers to the necessity of establishing a unified constitution, which is requisite in both the “Unification Plan of the Korean People's Community” of the Republic of Korea and the “Reunification Plan of the Korean Confederation of North Korea.” Therefore, this can be said to be an internal part of the two different unification plans proposed by the governments of the two Koreas. On the other hand, the “necessitating circumstances outside the unification plan” mentioned below are those unplanned for in either plan. The “internal necessity of the unification plan” will be sub-divided into the “necessity for the unification of the Korean community” and the
“unification plan for the Korean Federation of Unification”.
I. Territorial clauses and problems of the Constitution
Recently, there has been controversy concerning the unification policy of the Korean Peninsula around the constitution’s Article 3, “Territory Clauses of the Constitutions,” and Article 4, “Peaceful Unification Clause.” The current constitution recognizes the reality of North Korea by introducing the provisions of Article 4, “The Republic of Korea is aiming for unification by establishing and pursuing a peaceful unification policy based on a free democratic basic order.” This is regarded as providing a
1 Kim, Myung-Ki, 'The Unification Policy of South and North Korea' (Seoul: Institute of International Affairs, 1995), pp. 74~96.
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constitutional basis for cooperation. As a result, the disparity between the theory of the meaning of the territorial clause and its effectiveness has been sharply pointed out in the relevance of the actual clause of Article 3 in the present Constitution to that of Article 4 of the peaceful unification clause. This is generally a conflict between the position of “anti-state illegal organization” in relation to the legal status of North Korea versus the position of “equal nationality or government” in relation to the position of North Korea, and the cross-purposes of the territorial clause to that of the unification provisions. Let's take a look at the theoretical realities of the claim.
2.1. North Korea's Territorial Provisions and Facts
2.1.1. The View of North Korea as an Anti-State Organization
Article 3 of the current Constitution stipulates that “the territory of the Republic of Korea shall be the peninsula and its territories,” which translates into North Korea being an illegal occupant of the territory of the Republic of Korea.
The Republic of Korea was acknowledged by the United Nations on December 12, 1948 as the sole legitimate government in Korea, whereas the North Korean region is viewed as areas of the Republic of Korea which the ROK has failed to control and are being occupied by an illegitimate force, the Democratic People's Republic of Korea.2 Based on this assumption, the territorial clause would not conflict with the peaceful unification clause, so long as it precludes unification by force. In short, this theoretical view recognizes the normative power of territorial clauses.
The rationale that insists on the territorial clause being kept in its present form is that the territorial clause represents an important factor in the existence of the state. In particular, Article 4 of the First Constitution of 1947, defining the territory of the Republic of Korea as being the peninsula and its territories, remains valid. This is relevant to the fact that the current Constitution stresses the succession of “the rule of the Provisional Government of the Republic of Korea” in the text. It is clearly evident that the Provisional Government of the Republic of Korea intended to liberate the entire territory of the former
2 Kim, Chul-soo, "Introduction to Constitutional Law" Park, Young-sa, 2004. pp.98~111.
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empire (i.e., the entire Korean peninsula) from the Japanese occupiers, not only the South, which is, in fact, stated in the Constitution of the Provisional Government.3 Therefore, the territory of the Republic of Korea should be understood to include the entire territory of the Korean peninsula. Considering these points, the amendment of the territorial clause of Article 3 of the current law could result in the undermining of the legitimate authority and identity of the Republic of Korea.
2.2.2. North Korea
There is a view of North Korea as an anti-state organization or as a limited sovereignty, which asserts the priority effect of the “peaceful unification clause” on territorial clauses.4 First, it interprets the territorial clause and the peaceful unification clause as the relation between the general law and the special law, and recognizes the supremacy of the territorial clause in accordance with the superiority of the reality of the unrealistic priority of the new law or the ideology of international law and the idea of peaceful unification.5
One of the most controversial issues recently, in conjunction with the revision of the territorial clause, is the “national security law issue”.
Some argue that the National Security Law is a product of the Cold War as a relic of the old era, and there is also a claim that the National Security Law is essential for national security in the current situation where the confrontation between the two Koreas has not yet been solved. In the confrontation of these different arguments, the constitutional grounds of the National Security Law lead to the controversy over the opening and closing of the National Security Law with the provision of Article 3 territorial clauses.
2.2.3. Constitution of Unification
3 Article 3 of the Ninth Constitution of September 11, 1919, stipulated that "the land of the Republic of Korea shall be the territory of the former Korean Republic," and Article 2 of the provisional constitution of April 22, 1944 states that "It is necessary for the Korean government to establish a unified plan for Korea."
4 Jae Sung-ho "Major Legal Issues on Division and Reunification"
5 Kwon Young-sung, "The Principle of Constitutional Law," 1997. Pp.122 "New Law on Uniform Law"
The reality of the "unrealistic principle" (the fact of division and the exclusion of the principles of international law) (the recognition of the fact that division of the Korean peninsula is divided and the scope of the territory accepts the principle of international law to the extent that the state power falls).
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One of the most emphasized factors in relation to the necessity of maintaining the territorial clause in recent years is that it serves as a basis for reunification.
The current Article 3 of the Constitution is based on the premise that denies the legitimacy of the North Korean regime. However, in other respects, it is based on the justification of unification. In other words, the territorial clause is a provision that confirms that the two Koreas are in a state of division and that the termination of the division is required, while if the territory clause is deleted and North Korea is recognized as a foreign country, the unification of North and South Korea. It would then be a merger between countries.
In this regard, we pay particular attention to the collapse of the North Korean regime. In other words, if the territorial clause is revised and North Korea is regarded as a pure foreign country, there will be a great obstacle to unification because there is no justification for intervention by third countries such as China.
2.2. Disputes of Territorial Provisions
At the heart of criticism of the territorial clause is the claim that the territorial clause is based on anti-communist ideology. For example, these are assessments that are based on
“the product of the anachronistic Cold War logic” or “North Korean unification”.
Strictly speaking, it would be hard to say that defining the territory in the Constitution itself is the product of ideology. However, the constitutional clause in the South Korea Constitution has the criticism that it is a product of unrealistic ideology because it expresses the territory of North Korea in a way that is not of realistic dominance.
As such, it is true that the constitutional clause of the ROK Constitution has a special problem, but it is not sufficient to claim it as if the territorial clause was a representation of ideology. As we have already seen in the foreign legislation, not all the constitutions of the world have territorial clauses, but the territorial clause was born under a special epochal background, and has played its part in the last half century.
Therefore, in evaluating the existential meaning and necessity of revision of the territorial clause at the present time, it is more important that the territorial clause is based
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on the Cold War logic or anti-communism ideology, rather than the peaceful coexistence of the two Koreas through the harmonious interpretation of the territorial clause and the peace reunification clause. It is reasonable to evaluate whether or not it is possible to seek unification.
2.2.1. North Korea's territorial provision
Another important argument for the need to change the territorial clause is that the existence of North Korea cannot be denied and it needs to be accepted as a legitimate sovereignty. In other words, if North Korea is regarded as an illegitimate authority based on the territorial clause, it means that North and South Korea both deny North Korea's reality which is not in line with the reality of contemporary international society which has designated it as a UN member state.6
It is undeniable that North Korea is now recognized as a sovereign state in the international community. It is also clear that North Korea is recognized as an object of reconciliation, exchange and co-operation through the inter-Korean Basic Agreement and the June 15 Joint Declaration, and the two countries have agreed to recognize each other in the international community through simultaneous membership in the United Nations.
However, the claim that territorial clauses should be revised to recognize North Korea's reality poses several problems.
Recognition of reality does not mean that the two Koreas will recognize each other as an independent sovereign nation. It cannot deny that the two Koreas are recognized as independent sovereign states in external relations (i.e., in relations with other countries in the international community), but that does not mean that the two Koreas recognize each other as sovereign states. This is also manifest in the inter-Korean Basic Agreement.7
6 In the same token, there is criticism that the ruling of the Supreme Court, which acknowledged granting nationality of the Republic of Korea to the North Korean people, is a ruling that overlooked the reality of inter-Korean relations. Based on the Jang Myung-bong and the territorial clause concerned, the North Korean residents also evaluated the Supreme Court's decision (96 No 1221, Lee Young-Soon) as a Korean citizen.
7 As for the explanation that North and South Korean simultaneous join of the United Nations and the basic agreement of North and South Korea do not conflict with the territorial clause in terms of international
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The relationship between South and North Korea has a special relationship that presupposes unification. Therefore, the status and relationship of the two Koreas is tentative, not final. In other words, it has a meaning as a constitution for unification because it presupposes the ROK constitution or the North Korean constitution or unification, and a new constitution will be needed after unification. In this sense, acknowledging North Korea's reality does not equate to the same meaning as recognizing the United States, Japan, and China as sovereign nations.
Recognizing the reality of North Korea can be distinguished from the recognition of North Korea's legitimacy. The reality is that North Korea cannot but acknowledge the reality of North Korea, but not the normative justification.
2.2.2. Necessity of Amendment of Territorial Provisions
As the argument for the amendment of the territorial clause, there are cases where the territorial clause has an adverse effect on inter-Korean relations. This is in line with the view that North Korea's reality should be acknowledged, and the territorial clause denies the North Korean system itself. It is an obstacle to cooperation.
However, this view also has some problems. i) The relationship with North Korea has not always been friendly and cooperative, but rather usually hostile. It is questionable to change the constitution for only the sake of cooperation. ii) In the case of North Korea, where South Korea is an enemy, it can be a question whether unilateral concessions are wise. iii) The amendment of the territorial clause is an exchange with North Korea. It is also unclear how much influence it can have on increased cooperation.
Considering these problems, it seems that the argument that the territorial clause should be revised to improve inter-Korean relations is not convincing.
2.3. Interpretation of the Constitution
2.3.1. Constitution of the Republic of Korea
law, Jae Sung Jae, "Legal Issues on Division and Unification", the Constitutional Law, 6, No. 2 (2004).
Pp. 67-97
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The controversy of amending Article 3, the territorial clause, has three main problems from the domestic point of view, and the pros and cons of the amendment can be evaluated by careful analysis.
First, amendment is opposed from the standpoint of emphasizing the legitimacy or identity of the Republic of Korea with regard to the basic ideology of the law or the state order. On the other hand, amendment is supported as being a means to deemphasize the picture of Cold War ideology.
Although there may be a difference between these two as to, whether which is more important or reasonable, the advantage of the opposition to revision is more significant in view of the fact that Cold War ideology can be overcome without resorting to the revision of territorial clauses.
Second, the position of pros versus cons of the territorial clause is at time considered on the basis of national security or the issue of national security law. However, as discussed above, this problem should be discussed separately from the issue of revising the territorial clause.
Third, on the side of those who assert the amendment of the territorial clause in relation to the preparations for reunification, the amendment of the territorial clause should recognize the reality of North Korea and the importance of exchanges with it. It is stipulated that the strengthening of cooperation strengthens positive forces for unification. On the other hand, the opposing sides argue that the continuation of the territorial clause is a very important foundation for unification.
Both of these views have their own deficiencies, so it is difficult to assess which has the greater advantage. However, with the expansion of cooperation in the midst of maintaining the territorial clause (as it has been in the past decade) is considered to be feasible, it is also considered that the advantages of the anti-amendment stance are greater.
2.3.2. Improving Relations with North Korea
Removing the territorial clause could be a positive in terms of developing relations with Pyongyang purely from a domestic point of view. Although the relationship between
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the two Koreas has been steadily improving for the past 10 years, it is still not enough to build up mutual trust. For more advanced inter-Korean relations, it would be helpful to revise the territorial clauses and formally recognize North Korea
However, it should, at the same time be pointed out, that improving relations with North Korea and alleviating tensions may not necessarily facilitate unification. In some way, the exchanges and cooperation between the two Koreas contributes to the maintenance of the North Korean system, and because of this the regime is strengthened and pressure for unification weakened. Therefore, while recognizing that simply increasing exchange and cooperation is not the purpose in and of itself, it should be clear that its primary goal is a more cooperative relationship.
In other words, it should be clear that whether exchanges and cooperation are aimed at the creation of a foundation for unification, humanitarian purposes for the improvement of the lives of the North Koreans, or simply the relaxation of tensions between the two Koreas, they must be based on the setting of specific goals. The way, directions, and degree of cooperation can be different, and their significance can also change.
2.3.3. North Korea's Human Rights Problems
One of the problems connected with the territorial clause is the issue of defectors.
As the number of North Koreans who have recently moved out of North Korea to South Korea or to third countries has increased, the issue of human rights and treatment of them has become a very important issue. The most important concern is the issue of nationality for North Korean defectors.8
According to Article 3 of the current Constitution, if North Korea is also a territory of the Republic of Korea and is illegally occupied by the regime of North Korea, these
8 In connection with this matter, the attitude that West Germany took at the time of the division of West Germany would be a good model. With the proposition that the whole of Germany existed before the division of West Germany, they adhered to the single nationality of West Germany. The recognition of this unified nationality was the most realistic meaning when the East German people escaped to West Germany. As the West German residents, as well as West Germans, the West German government accepts them as a holder of German nationality, without the burden of judging individual circumstances of the East German people who escaped to West Germany, other political considerations, or naturalization or asylum procedures. And this attitude of the West German government was a great stimulus and incentive for the East German people.
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North Koreans will of course have the nationality of the Republic of Korea and are recognized as Korean citizens without having to undergo complicated citizenship procedures such as naturalization. Therefore, they have the right to ask the Government of the Republic of Korea citizen protections. Also, when they want to enter the Republic of Korea, the government cannot refuse them.
North Koreans will of course have the nationality of the Republic of Korea and are recognized as Korean citizens without having to undergo complicated citizenship procedures such as naturalization. Therefore, they have the right to ask the Government of the Republic of Korea citizen protections. Also, when they want to enter the Republic of Korea, the government cannot refuse them.