On the Unbearable Ineffectiveness of the Inter-Korean Agreement

 

*Banners hanging on the border fence with wishes for the reunification of the two Koreas ⓒiStock

Il Young Jeong

Research Professor_Institute of Social Sciences_Sogang University

The situation on the Korean Peninsula is, to put it bluntly, grim. Talks have been cut off, and North Korea has expressed its willingness to guarantee its security through nuclear armament. We need to re-evaluate our efforts for peace on the Korean Peninsula in the face of a new South Korean government. We need to begin asking and finding answers to questions about the structural issues at play.

Dialogue on the Korean Peninsula has been cut off because the two sides do not trust each other. In the past 30 or so years since the signing of the “Declaration of Denuclearization of the Korean Peninsula” in 1992, we have worked hard to move towards the denuclearization of the Korean Peninsula, all to no avail. In addition, the inter-Korean economic cooperation represented by the Mt. Kumgang Tourist Region and the Kaesong Industrial Complex has fallen apart before even coming close to realizing the dream of a shared economic community on the Korean peninsula.

By looking at the issue from a few different perspectives, one can divine a number of possible reasons for the current dismal state of the peninsula. Here, I would like to talk about why many of the "promises" made by the two Koreas have not been kept, focusing on the Inter-Korean Agreement.

 

2008 and 2022: A Sense of Déjà Vu

The second inter-Korean summit in 2007 gave rise to the 10.4 Declaration and what seemed at the time to be the beginning of true, comprehensive inter-Korean cooperation in the form of economic cooperation and social-cultural exchanges. However, the change of government in South Korea and subsequent rise of the Lee Myung-bak administration effectively nullified the inter-Korean agreements signed during the Kim Dae-jung and Roh Moo-hyun administrations. The emergence of the new government, which questioned the efficacy of the inter-Korean agreements and advocated for different North Korea policies, ultimately resulted in a failure to properly implement the previous agreements.

North Korea's armed provocations are clearly a violation of the two Koreas' agreements. North Korea naturally also bears some responsibility for the failure of the inter-Korean agreements. As such, did this free the South Korean government from its own obligations under the agreement? I don't think so. There have been a number of cases in which the South Korean government has gone against the inter-Korean agreement. Now South Korea is about to see another change of administration. What stance will the Yoon Suk-yeol administration take regarding the previous administration’s agreements with North Korea?

 

Why has the Inter-Korean Agreement been so ineffective?

Why have efforts to develop inter-Korean relations failed? Because the two Koreas have not kept their promises to each other. Promises between the two Koreas have been made in the form of ‘Inter-Korean agreements’. In the 2006 “Development of Inter-Korean Relations Act,” the ‘Inter-Korean Agreement’ is defined as "all agreements formally concluded in writing between the South Korean government and the North Korean authorities." So far, the two Koreas have signed 258 inter-Korean agreements over the course of 667 inter-Korean talks.

After all of this time and effort, what does the ‘Inter-Korean Agreement’ look like now? The Inter-Korean agreement has been crippled by the crisis in Northeast Asia, confrontation between the two Koreas, and administration changes in South Korea. Is that all? Regardless of the difficult outside circumstances, can all of the inter-Korean agreements be neutralized just like that?

One of the reasons the inter-Korean agreements have not succeeded is the question of whether the agreements can actually be legally enforced. Outside of academic discussions, the inter-Korean agreement is generally treated as a promise made in good faith. In other words, it is a gentleman's agreement without the same legal backing and enforcement behind a treaty signed between two countries.

The “Development of Inter-Korean Relations Act,” which defines the inter-Korean agreement, does not stipulate what legal force the Inter-Korean Agreement has or who possesses the authority to implement it. As such, the Inter-Korean Agreement comes with inherent limitations that make its promises difficult to keep, regardless of situational factors or the ups and downs of inter-Korean relations.

 

Increasing the Importance of the Inter-Korean Agreement

The Korean Peninsula is still not free from war. Under the armistice on the Korean Peninsula, confrontation and conflict between the two Koreas are still real, possible variables. What we need is to solve a more structural problem. We need to treat the Inter-Korean Agreement with greater gravity. To do so, we need to do to ensure that the inter-Korean agreement is implemented more consistently, regardless of external environmental factors, breaches of mutual trust, or government administration changes.

The first option is to conclude the main Inter-Korean agreement as a treaty. Another option is to revise legislation to redefine the Inter-Korean agreement as a treaty or to stipulate that the Agreement has the same legal effect as a formal treaty. Germany’s experiences during East-West reunification, including the conclusion of the Basic Treaty of East and West Germany and the act of granting these agreements the same legal power as treaties signed with foreign nations, can act as a valuable reference for the Korean case.

Second, there is the option of defining the exact legal effect of the Inter-Korean agreement through domestic law. We need to clearly define the legal force behind the Inter-Korean agreement in the current “Development of Inter-Korean Relations Act” and give the competent authority the power to implement it.

Separately, there is also an option to legislate and establish each major cooperative project between the two Koreas through their own domestic laws. This would be the same way that the South and the North have legislated their development of and support for the Kaesong Industrial Complex (KIC) through their respective domestic laws, the “Kaesong Industrial Zone Support Act” and the “Kaesong Industrial District Act.” The “Inter-Korean Dictionary Joint Compilation Project Act” that has helped keep the joint Inter-Korean project alive offers another potential practical option for holding up the minimum of the Inter-Korean Agreement.

Third, it is essential to set up an apparatus to manage the process of signing and implementing the inter-Korean agreement as well as the process of suspending, renegotiating, and resuming the agreement. A process to facilitate the resumption of the Inter-Korean Agreement following a period of suspension is particularly important. The current situation in which the Inter-Korean Agreement is not being implemented is also closely tied to the absence of regulations and manuals for resuming the agreement.

In addition, decisions regarding inter-Korean agreements should no longer be the sole prerogative of the government and the National Assembly and political parties should play a larger role in negotiating the agreement. Above all, the opposition party's opinions need to at least be reflected in inter-Korean negotiations. So far, the opposition has generally been sidelined during inter-Korean negotiations. As a result, changes in administration have led to a vicious cycle of repeatedly neutralizing inter-Korean agreements made by the previous government.

In fact, Article 23 of the current “Development of Inter-Korean Relations Act” stipulates that “the President must obtain the consent of the National Assembly when he intends to suspend the effect of an inter-Korean agreement that has been signed and ratified by the National Assembly." Moreover, the National Assembly should take measures to be more actively involved in a situation where the Inter-Korean Agreement, which it agreed to by itself, is becoming ineffective.

 

The Importance of the Yoon Administration’s First Move

The Yoon Seok-yeol administration presented the normalization of inter-Korean relations as one of 110 tasks on its chief agenda. This task was defined as “relieving tensions through dialogue and realizing common interests through reciprocity,” “proposing a roadmap for inter-Korean economic cooperation across different sectors to drive North Korea’s denuclearization,” “revitalizing mutual openness and communication/exchange between the two Koreas and induce gradual change in the North.”

The statement indicated a willingness to promote denuclearization and normalization of inter-Korean relations simultaneously, rather than getting caught up in the logic of denuclearization as had happened during the past Lee Myung-bak administration.

I suggest that the Yoon Suk-yeol government work to restore trust between the two Koreas by expressing respect for the existing inter-Korean agreement and working together with the National Assembly to work to implement the Inter-Korean Agreement and take South Korea’s obligations under the agreement more seriously.

*IL-Young Jeong is a research professor at Sogang University in Seoul. His key research interests include North Korea's social control system, inter-Korean relations, and peace on the Korean Peninsula.

*This article is a column published in OhmyNews. http://omn.kr/1yqn9