A tale of two Koreas: How could North and South Korea be unified under public international law?
Relations between North and South Korea have taken an unprecedented turn. No longer are all eyes on the North’s ballistic missile programme, nor on Donald Trump’s big, red nuclear button. For now it seems, the brinksmanship has blown over. In January, representatives from the North and South held talks — something which has not occurred in years. The two countries have also fielded a joint ice hockey team at this year’s Winter Olympics in PyeongChang: the athletes trained together and are playing under the white and blue flag of a united Korea.
This turnaround may stir the curiosity of political scientists and international lawyers. If Kim Jong-Un plays down his militarism, and if the North and South can reconcile their differences, could there one day be a united Korea?
Before 1945, Korea was unified, albeit under Japanese colonial rule. It was only due to the machinations of America and the USSR during the Cold War which created two regimes on the peninsula: one based in Seoul and one in Pyongyang. Could a joint Korean ice hockey team be the harbinger of re-unification?
Public international law gives the two Koreas the means to unite. Article 1(2) of the UN Charter contains the principle of self-determination: this recognises the right of the ‘Korean people’ to break down the barriers of North and South and form their own unified state (let’s say “the new Korea”). Article 1 of the Montevideo Convention 1933 then lists requirements for the new Korea to become a state: a defined territory, a permanent population, effective government and a capacity to enter relations with other states. The territory of the new Korea would be the Korean peninsula, with its permanent population being the inhabitants of the former states in the North and South. A centralised government would preside over international relations, and in doing so express the new Korea’s sovereignty. In theory, international law provides the path to unification.
But international law does not operate in a vacuum. Its application is determined by political and economic factors. The law on state unifications is largely customary, meaning the two Koreas would seek to emulate historical examples. At this point, two options arise, each creating different and challenging implications for the new Korea, as a legal, political and economic entity.
First is ‘absorption’: one Korea absorbs the other. This means that the legal personality of one of the Koreas would be subsumed by the legal personality of the other Korea, remaining intact. Second is ‘dissolution’: the new Korea is created from the ground up. This means that the legal personalities of both Koreas disappear to make way for a ‘new’ personality. The decision between these two options is important: which of the North and South’s existing legal rights and obligations will be transferred to the new Korea?
Politicians may choose absorption. For example, South Korea could absorb North Korea, just as West Germany absorbed East Germany in 1990. For a united Germany, the entirety of the East’s pre-existing international obligations was transferred to West Germany. Most notably, the West had to take on the East’s sovereign debt, which was a heavy economic burden given its failing communist economy. And yet history has shown how Germany availed itself of the economic problems brought by the East: the reunified state is now a prominent European trading and industrial power.
Would the new Korea be able to create a prosperous, unified economy? Today, South Korea possesses a booming economy, progressing further thanks to a burgeoning technology industry, while the North is propped up by foreign aid. If the South absorbed North Korea and its sovereign debt, the new Korea would not, at the very least, enjoy South Korea’s favourable credit-rating.
Equally, politicians may choose dissolution. The historical precedent is the dissolution of Czechoslovakia in 1993. The legal personality of Czechoslovakia ended, to then create the Czech Republic and Slovakia, as two separate legal personalities. This “ground up” approach may absolve the new Korea from any damaging economic obligations of the former Koreas (mostly the North). But doing so may cause damage on an international level: other countries may not approve of the new state casting off obligations owed to them, for instance under any treaties which North and South Korea ratified. As such, it would take time for the new Korea to gain international prominence. A limbo period in international relations would be a far cry from the status enjoyed by South Korea, notably its reputation in defence and technology. Perhaps the greater good of a unified Korea would distract from such issues.
Whilst public international law provides tools for states to unite, the success of new states is largely determined by politics and economics. The peoples of the two Koreas may recognise a common identity, perhaps in their joint team at the Winter Olympics, and agree that they are politically and economically stronger together than divorced. Despite obvious hurdles, the prospect of a unified Korea has history in its favour.
Toby Cohen is a Law and French student at the University of Bristol. He is currently undertaking his third year of studies in Paris at Sciences Po.
