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Inter-Korean Relations and the Unification Process in Regional and Global Contexts

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Inter-Korean Relations and the Unification Process in Regional and Global Contexts Inter-Korean Relations and the Unification Process in Regional and Global Contexts Edited by Jong-Chul Park and Joseph Harte Inter-Korean Relations and the Unification Process in Regional and Global Contexts Printed December 2015 Published December 2015 Published by Korea Institute for National Unification (KINU) Publisher Jin-Wook Choi Editor Unification Policy Studies Division, KINU Registration number No. 2-02361 (April 23, 1997) Address 217, Banpodaero (Banpo-dong), Seocho-gu, Seoul 06578, Republic of Korea Telephone (82-2) 2023-8000 Fax (82-2) 2023-8297 Homepage http://www.kinu.or.kr Design·Print Hyundai Artcom Co., Ltd. (82-2) 2266-4482 ISBN 978-89-8479-835-9 93340 Price 17,500 won Copyright Korea Institute for National Unification, 2015 All KINU publications are available for purchase at all major bookstore in Korea. Also available at Government Printing Office Sales Center: Store (82-2) 734-6818; Office (82-2) 394-0337 Inter-Korean Relations and the Unification Process in Regional and Global Contexts The analyses, comments, and opinions expressed in this book are those of the authors and do not necessarily represent the views of the Korea Institute for National Unification (KINU). TABLE OF CONTENTS Foreword 1 Contributors 11 I. Prospects for Inter-Korean Relations after 70 years of 21 Division: Historical, Regional and Legal Perspectives A. Historical and Legal Perspectives on Inter-Korean 21 Relations in a Regional and Global Context The Korean Question (1870~1910): 23 The Question of Independence under a New Legal Order Jeong-Ho Roh Review on the Previous ROK 51 Government Policies for Unification and Future Policy Options in View of German Unification Chang-Seok Yang Developing a Law and Global Governance 105 Approach to Korean Unification and Inter-Korean Relations Joseph Harte B. Regional Cooperation, Inter-Korean Relations 135 and the Unification Process Novus Ordo Seclorum: 137 Regional Interests in Korean Unification Sue Mi Terry A Search for Introducing Confidence- 167 Building Measures and a Peace Regime on the Korean Peninsula Jong-Chul Park Recent International Responses 191 to the North Korean Human Rights Situation Jung-hyun Cho II. Inter-Korean Relations in a Globalizing World: 209 Systemic Considerations and Current Issues A. Global and Systemic Considerations 209 Divided Nations in an Integrated World: 211 Explaining the Post-War Continuity of Korean Division Charles Armstrong Global and Regional Financial Governance: 229 Implications for Inter-Korean Relations and the Unification Process Douglas W. Arner Resolving the Korean Question: 271 Beyond the Impasse in Inter-Korean Relations Barry K. Gills B. Current Issues: International Investment and 289 Cyber Security Analysis and Evaluation of North Korea’s 291 Legal System for External Economics with a Focus on the Legal Regime for Special Economic Zones Kyu-Chang Lee Foreign Investment, Dispute Resolution, 327 and the Korean Question Michael A. Hay Emerging Issues Relating to 347 Cyber-Attacks: An International Legal Analysis of the Sony Hack Kyung-ok Do The Aftermath of Sony: 377 Threat, Retaliation, Deterrence and International Cyber Norms Rhea D. Siers FOREWORD This year marks the 70th anniversary of Korea’s liberation from Japanese occupation. At the same time, it marks the 70th year of a divided Korean peninsula. For this reason, the 2015 KINU-CKLS joint project on inter-Korean law and policy holds special meaning for its participants and all those concerned with its outcome. In 2013, the Korea Institute for National Unification (KINU) in Seoul and the Center for Korean Legal Studies (CKLS) at Columbia Law School in New York began a 5-year joint project aimed at establish- ing in the United States an ongoing forum on the law and policy of inter-Korean relations and unification. The mission of the project has been to bring these topics to a wider international audience and to seek the participation of international scholars and experts in search- ing out new perspectives and proposals for advancing peaceful rela- tions on the peninsula and a stable path to unification. Now in its third year, the project has produced three volumes of research, including the present one, on a number of critical issues related to the ongoing development of inter-Korean relations and prospects for unification. In its first year, the project held a closed workshop that explored a number of foundational issues, including the historical and geopolitical roots of the Korean division, the chal- lenge of addressing calls for transitional justice mechanisms, and pre- liminary legal considerations aimed at unraveling the complex and “special” legal status of the inter-Korean relationship in international law. Foreword 1 In its second year, the project held a second closed workshop and seminar that sought to develop the international perspective of the project. Topics included the South’s policy of “trustpolitik” and its relationship to international cooperation, the impact of the U.S.- China rivalry in the region, questions of sovereignty and the limits of legalization on inter-Korean questions, legal approaches to Korea-re- lated security issues, and legal perspectives on inter-Korean indus- trial development and the recent UN findings on the North Korean human rights situation. In 2015, the project was pleased to hold its first conference open to the academic community at Columbia University and the general public, with project participants from Seoul, New York, Washington, D.C., Helsinki, Hong Kong, and a practicing U.K. attorney based in Pyongyang. This eclectic group of highly trained and highly special- ized practitioners and experts brought the kind of international per- spective to the project that was originally intended by its founders. This milestone represents the culmination of three years of hard work by all participants involved and is the result of careful attention to the project’s long-term goals and vision. The topic of this year’s project reflects this milestone in its scope and focus. The aim was to locate inter-Korean relations and the unifica- tion process in the greater context of historical and contemporary regional and global considerations, both in terms of the relevant institutional architecture and the systemic economic and geopolitical order. In other words, our goal was to look at the inter-Korean ques- tion from the point of view of its international and global implica- tions, as opposed to its meaning for the two Koreas alone. The approach proved to be highly productive and in the editors’ view 2 Inter-Korean Relations and the Unification Process in Regional and Global Contexts has opened up a number of truly innovative and eminently useful avenues of research previously unexplored in the difficult search for viable solutions to a now 70-year old challenge. The present volume is a collection of the papers presented at the 2015 KINU-CKLS Conference, which was held in New York on October 22, 2015. In Part I, the authors examine and explore the historical and legal foundations influencing prospects for improved inter-Ko- rean relations following 70 years of division. Under the rubric of historical and legal perspectives in a regional and global context, Jeong-Ho Roh reviews the earliest roots of the “Korean Question” and considers the meaning of independence under the evolving regional order of the early 20th century. In his review of the period 1870~1894, Roh highlights the ambiguous nature of Korean “inde- pendence” vis-à-vis China under (1) the principles previously gov- erning the historical and long-running relationship between the two, (2) attempts by Western powers to define that relationship under the prevailing principles of international law at the time, and (3) Japan’s interests in defining Korea as a nation independent of China. Covering the period 1894~1910, Roh next reviews Japan’s moves to counter Korean claims to independence under international law and its eventual annexation of Korea. In the same section, Chang-Seok Yang analyzes, in light of the many similarities and critical differences with the German experience, the efforts of previous ROK administrations concerning unification. After a thorough and useful review of the unification policies of each administration from Roh Tae Woo to Lee Myung Bak, Yang identifies improved consistency and coherence in ROK policy as a critical foun- dation for improved inter-Korean relations and offers suggestions Foreword 3 for ensuring a unified, bipartisan policy that will remain consistent beyond the election cycle. To round out these foundational and framework chapters, Joseph Harte looks to the future and argues for the utility of a law and global governance approach to inter-Korean relations. He suggests that in a global environment that is increasingly regulated by overlapping institutional frameworks, a law and global governance approach is more productive than the traditional international relations and international law approach. He argues that studying the problem from a law and global governance perspective is not only more con- sistent with the state of the world in the 21st century but also offers the potential for new opportunities for inter-Korean cooperation and trust-building, as well as greater collaborative and multilateral sup- port from the international community. The next chapters by Sue Mi Terry, Jong-Chul Park and Jung-hyun Cho concern the influence and development of regional and global geopolitical and institutional factors that have the potential for sig- nificantly impacting inter-Korean relations and the unification pro- cess going forward. Sue Mi Terry examines the competing interests of the Northeast Asian regional powers regarding a unified Korea. She argues that while a unified Korea offers significant gains for all parties concerned, the conflicting interests and views among the regional players, namely China, Japan, Russia and the United States, could present serious obstacles to any progress toward unification, as well as challenges to geopolitical stability in the event a unified Korea emerges.
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