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[SJD Dissertation on Public Participation in South and North Korean Environmental Laws] Pace University DigitalCommons@Pace Dissertations & Theses School of Law 2003 [SJD Dissertation on Public Participation in South and North Korean Environmental Laws] Byungchun So Pace University School of Law Follow this and additional works at: https://digitalcommons.pace.edu/lawdissertations Part of the Comparative and Foreign Law Commons, Environmental Law Commons, and the Law and Society Commons Recommended Citation Byungchun So, [SJD Dissertation on Public Participation in South and North Korean Environmental Laws] (2003) (S.J.D. dissertation, Pace University School of Law), available at http://digitalcommons.pace.edu/ lawdissertations/5/. This Dissertation is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Dissertations & Theses by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................. 1 II. BACKGROUND INFORMATION ON KOREA ................................................................ 4 A. General Review of Korea ................................................................................................... 4 1. History and Culture of Korea........................................................................................... 4 2. Legal Traditions of Korea ................................................................................................ 8 a. South Korean Legal System as a Civil Law Tradition .................................................. 8 b. North Korean Legal System as a Socialist Law Tradition ............................................ 9 3. Government System of Korea ......................................................................................... 10 a. Overview of the South Korean Government System .................................................. 10 b. Overview of the North Korean Government System .................................................. 11 4. Environmental Administrative System in Korea ............................................................ 12 a. Environmental Administrative System in South Korea .............................................. 12 b. Environmental Administrative System in North Korea .............................................. 14 B. Environmental Laws in Korea .......................................................................................... 15 1. Environmental Laws in South Korea ............................................................................. 15 a. Environmental Provision in Constitution .................................................................... 15 b. Environmental Laws and Regulations ........................................................................ 18 c. Related Environmental Provisions and International Environmental Agreements ..... 20 d. Problems of South Korean Environmental Laws........................................................ 21 2. Environmental Laws in North Korea ............................................................................. 25 III. GENERAL REVIEW OF PUBLIC PARTICIPATION ..................................................... 30 A. Public Participation as Political Rights............................................................................. 30 B. Public Participation as Direct Participatory Democratic System ..................................... 31 C. Public Participation and Democracy ................................................................................. 34 D. Public Participation in Environmental Matters ................................................................ 36 IV. PUBLIC PARTICIPATION IN KOREA ........................................................................... 41 A. Public Participation in South Korean Environmental Laws ............................................. 41 1. Access to Information ..................................................................................................... 41 3. Access to the Environmental Administrative Decision-Making Process ....................... 48 4. Access to Justice ............................................................................................................. 59 B. Application of Public Participation in North Korea ......................................................... 67 1. Introduction .................................................................................................................... 67 2. Implementing Public Participation in North Korea ....................................................... 69 3. A Joint Project in the Korean DMZ ............................................................................... 74 a. Introduction ................................................................................................................. 74 b. Geological and Ecological Conditions in the DMZ .................................................... 75 c. The Legal Status of the DMZ...................................................................................... 78 d. Designation for the Ecological Peace Park ................................................................. 79 V. CONCLUSION ................................................................................................................... 83 APPENDIX I ENVIRONMENTAL PROVISIONS IN NATIONAL CONSTITUTION ..................................... 85 APPENDIX II ENVIRONMENTAL PROVISIONS IN STATE CONSTITUTIONAL LAWS OF USA ......... 107 APPENDIX III INTERNATIONAL ENVIRONMENTAL AGREEMENT THAT SOUTH KOREA SIGNED . 111 BIBLIOGRAPHY ......................................................................................................................... 113 I. INTRODUCTION The primary aim of this thesis is to explore public participation in the environmental decision-making process for potential benefits in developing Korean environmental laws. Public participation contributes to sustainable development through effective environmental management; in addition, it improves accountability and transparency in the decision-making processes of governmental agencies as a complementary measure of direct and participatory democracy. Therefore, public participation is crucial not only to environmental protection but also to the development of democracy—two major concerns of Korea in the new Millennium. Korea’s history extends back over 4,000 years, but it has a relatively short history as an independent country. In the last 55 years, South Korea has achieved a social and economic system comparable to that of major industrialized countries. However, this rapid development came with high costs, including the sacrifice of personal freedoms through a delayed democracy and environmental degradation. North Korea, one of the least developed countries, is groaning under poor economic and political conditions. Its underdeveloped social situation makes it difficult to maintain a clean environment through systematic environmental laws. As introduced in Our Common Future, sustainable development, which intends simultaneous environmental protection and economic development, can be achieved only through the careful management of the environment with environmental laws, such as an environmental impact assessment (EIA) system and wide public participation.1 Even though Korea has an environmentally friendly ethical culture,2 ethics alone cannot create a clean environment without an adequate legal system (i.e., rich, ethical software cannot run without the appropriate hardware of a strong legal system within the rule of law). Moreover, South Korean environmental laws and regulations were not strongly implemented during its period of rapid development. However, in the mid-1990s, the 1 UNITED NATIONS WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE (1987). The World Commission on Environment and Development is also known as the Brundtland Commission. 2 For example, Buddhism, Taoism and Confucianism—three major cultural components in Korea— encourage preservation of the natural environment. Buddhism strongly prohibits killing any life and places restraints to on the consumption of natural resources; Taoism orders its adherents to respect Mother Nature and learn lessons from her; and Confucianism highlights man’s obligation to live in harmony with nature. 1 public’s concern with the environment and active participation in decision-making processes made environmental laws work more vigorously. In this sense, the Åarhus Convention on Access to Information, Public Participation in Decision-Making Process and Access to Justice in Environmental Matters3 (hereinafter the Åarhus Convention), which asks signatory countries to enforce public participation in environmental matters (e.g., access to information, access to process, and access to justice), could provide more opportunities to further develop the public participation regulatory system of South Korea. Wide implementation of public participation in the government’s decision-making processes would contribute toward changing the current closed administrative process that resulted from Confucianism’s vertical hierarchy tradition to an open and transparent administrative system. Likewise, public participation would contribute not only to protecting the natural environment in North Korea, but also to providing an opportunity to learn the Western democratic system and to develop North Korea’s
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