Developing a Law and Global Governance Approach to Korean Unification and
III. Law and Global Governance as Applied to Inter-Korean Relations
1. North Korean Participation in Global Governance Institutions
Obviously, any inquiry into the potential for a better use of law and
20 Douglas Arner has tackled this very question head-on in his contribution to the present volume. Douglas W. Arner, “Global and Regional Financial Gover- nance: Implications for Inter-Korean Relations and the Unification Process,” in Inter-Korean Relations and the Unification Process in Regional and Global Contexts, eds. Jong-Chul Park and Joseph Harte (Seoul: KINU-CKLS, 2015).
global governance mechanisms to address inter-Korean issues must begin with a review of the North’s current membership in existing international institutions, since these organizations constitute the
‘situs operandi’ of formal global governance participation. According to the CIA Factbook, the DPRK is currently a member of 26 interna- tional organizations.21 A number of these organizations represent areas of international cooperation that have a highly practical nature, such as the Universal Postal Union (UPU), the International Organi- zation for Standardization (ISO), and the International Civil Avia- tion Organization (ICAO). Others have a much broader mandate and concern issues and activities of a more politically sensitive nature, such as the ASEAN Regional Forum (ARF), the Group of 77 (G-77), and of course, the United Nations. Organizing these institu- tions along a line of degree from “practical” to “politically sensitive”
suggests a strategy for accessing the existing global governance framework to promote greater inter-Korean development. Organiza- tions closer to the “practical” end offer opportunities for trust-build-
21 ASEAN Regional Forum (ARF), Food and Agriculture Organization of the United Nations (FAO), Group of 77 (G-77), International Civil Aviation Organization (ICAO), International Red Cross and Red Crescent Movement (ICRM), Inter- national Fund for Agricultural Development (IFAD), International Federation of Red Cross and Red Crescent Societies (IFRCS), International Hydrographic Organization (IHO), International Maritime Organization (IMO), International Mobile Satellite Organization (IMSO), International Olympic Committee (IOC), Inter-Parliamentary Union (IPU), International Organization for Standardiza- tion (ISO), International Telecommunications Satellite Organization (ITSO), International Telecommunication Union (ITU), Nonaligned Movement (NAM), United Nations (UN), United Nations Conference on Trade and Development (UNCTAD), United Nations Educational, Scientific, and Cultural Organization (UNESCO), United Nations Industrial Development Organization (UNIDO), World Tourism Organization (UNWTO), Universal Postal Union (UPU), World Federation of Trade Unions (WFTU), World Health Organization (WHO), World Intellectual Property Organization (WIPO), World Meteorological Organization (WMO). “The World Factbook,” CIA, <http://www.cia.gov/library/publications/
the-world-factbook/geos/kn.html>. (Last accessed November 15, 2015).
ing on issues that are less emotionally charged with greater levels of predictability and a potentially greater volume of regular interac- tion.22 Strengthening these areas first serves to establish a foundation for expanding efforts into more politically sensitive areas. Of course, any proposal for increased interaction or engagement in these areas requires a thorough review and evaluation of past and current efforts along these lines.
In this context, it is important to emphasize that it is critical that the
“law” element of the law and global governance equation remain firmly intact. This is to say that even with a strategy that begins on the most practical levels, it is important that any engagement is founded upon a negotiated agreement with articulated expecta- tions, limitations and mechanisms to address misunderstandings.
As indicated above, it is the working out of articulated agreements, i.e., the very process of “lawmaking,” that constitutes a critical part of discussing differences and proposing solutions. Without this element, any engagement with the North simply returns to classic international relations theory and I have already argued the 70 years of failure that has resulted from this approach. Seventy years ago, international relations theorists may have had a point when arguing that international law (loosely defined) had very little relevance or reliability in a world dominated by the realities of geopolitics. In 2015, that view is no longer valid. International law, both hard and
22 On the trust-building policy agenda of the current ROK administration, see Park Geun-hye, “A New Kind of Korea: Building Trust Between Seoul and Pyongyang,” Foreign Affairs, vol. 90, no. 5 (2011), pp. 13~18. See also Jong- Chul Park, “A Search for Introducing Confidence-Building Measures and a Peace Regime on the Korean Peninsula,” in Inter-Korean Relations and the Unification Process in Regional and Global Contexts, eds. Jong-Chul Park and Joseph Harte (Seoul: KINU-CKLS, 2015).
soft, now has a complex grid of international institutions, practices and even civil society networks that provide support, legitimacy and identifiable consequences when it comes to addressing agreed upon expectations. The key at this stage in the evolution of the global system is to define those expectations through negotiated arrangements and embed those expectations into the larger, inte- grated world order that has emerged in the 21st century. The exist- ing order is certainly nowhere near that of a state with a superior enforcing authority, but it is not necessary (nor advisable according to many) to have such an authority in today’s thickly integrated legal order.
What is essential is the articulation of expectations. In the past, the South and North have reached working agreements but they have consistently lacked definition. While this may be a reflection of cultural attitudes toward the desirability of law as a guiding prin- ciple on the one hand, or the inability to reach anything greater due to a lack of political will on the other, what is important is that such general agreements are avoided going forward. The viabil- ity of articulated expectations is precisely what a “law and global governance” approach offers. If the desire is to capitalize on the current state of the global legal order to bring the inter-Korean relationship into the matrix of 21st century governance, agree- ments that reflect the current state of global legalization must be sought and utilized for the benefit of both sides. Anything less is a return to 20th century IR failures.
Returning to the discussion of institutional membership, a law and global governance approach suggests that a useful strategy is to pursue cooperative efforts where the ROK and DPRK share
membership in the same international organization. While an overlap in institutional membership between the ROK and the DPRK is not a prerequisite for global governance efforts by the larger community, since the international community has its own interests in bringing North Korea “into the fold,” the inter-Ko- rean issue is by definition a fundamentally Korean problem and ultimately must be decided by the Koreas themselves. Thus, it is important to identify the international institutions that are shared by both sides.
The CIA Factbook lists 76 international organizations of which the ROK is a member.23 Comparing this list to that of the DPRK, we can find 23 organizations in which the ROK and DPRK are both members.24 Efforts at bringing the inter-Korean relationship into a law and global governance framework should begin with
23 Asian Development Bank (ADB), African Development Bank Group (AfDB) (nonregional member), Asia-Pacific Economic Cooperation (APEC), Arctic Council (observer), Association of Southeast Asian Nations Regional Forum (ARF), Association of Southeast Asian Nations (ASEAN) (dialogue partner), Aus- tralia Group, Bank for International Settlements (BIS), Community of Democra- cies (CD), Conference on Interaction and Confidence-Building Measures in Asia, Colombo Plan (CP), East Asia Summit (EAS), European Bank for Reconstruction and Development (EBRD), Food and Agriculture Organization (FAO), Financial Action Task Force on Money Laundering (FATF), Group of Twenty Finance Min- isters and Central Bank Governors (G20), Inter-American Development Bank (IADB), International Atomic Energy Agency (IAEA), International Bank for Reconstruction and Development (IBRD), International Civil Aviation Organiza- tion (ICAO), International Chamber of Commerce (ICC), International Criminal Court (ICCt), International Red Cross and Red Crescent Movement (ICRM), International Development Association (IDA), International Energy Agency (IEA), International Fund for Agricultural Development (IFAD), International- Finance Corporation (IFC), International Federation of Red Cross and Red Crescent Societies (IFRCS), International Hydrographic Organization (IHO),
International Labour Organization (ILO), International Monetary Fund (IMF), International Maritime Organization (IMO), International Mobile Satellite Organization (IMSO), International Criminal Police Organization (Interpol), International Olympic Committee (IOC), International Organization for Migration (IOM), Inter-Parliamentary Union (IPU), International Organiza- tion for Standardization (ISO), International Telecommunications Satellite Organization (ITSO), International Telecommunication Union (ITU), Interna- tional Trade Union Confederation (ITUC), Latin American Integration Asso- ciation (LAIA), Multilateral Investment Guarantee Agency (MIGA), United Nations Mission for the Referendum in Western Sahara (MINURSO), United Nations Stabilization Mission In Haiti (MINUSTAH), Nuclear Energy Agency (NEA), Nuclear Suppliers Group (NSG), Organization of American States (OAS) (observer), Organization for Economic Cooperation and Development (OECD), Organization for the Prohibition of Chemical Weapons (OPCW), Organization for Security and Cooperation in Europe (OSCE) (partner), Pacific Alliance (observer), Paris Club (associate), Pacific Islands Forum (PIF) (partner), Permanent Court of Arbitration (PCA), South Asian Association for Regional Cooperation (SAARC) (observer), Central American Integration Sys- tem (SICA), United Nations (UN), United Nations–African Union Mission in Darfur (UNAMID), United Nations Conference on Trade and Development (UNCTAD), United Nations Educational, Scientific, and Cultural Organiza- tion (UNESCO), United Nations High Commissioner for Refugees (UNHCR), United Nations Industrial Development Organization (UNIDO), United Nations Interim Force in Lebanon (UNIFIL), United Nations Mission in Liberia (UNMIL), United Nations Mission in the Republic of South Sudan (UNMISS), United Nations Military Observer Group in India and Pakistan (UNMOGIP), United Nations Operation in Côte d’Ivoire (UNOCI), World Tourism Organi- zation (UNWTO), Universal Postal Union (UPU), World Customs Organiza- tion (WCO), World Health Organization (WHO), World Intellectual Property Organization (WIPO), World Meteorological Organization (WMO), World Trade Organization (WTO), Zangger Committee (ZC). “The World Factbook,”
CIA, <http://www.cia.gov/library/publicahons/the-world-factbook/geos/2017.
html>. (Last Accessed Nov 15, 2015).
24 ASEAN Regional Forum (ARF), Food and Agriculture Organization of the United Nations (FAO), International Civil Aviation Organization (ICAO), International Red Cross and Red Crescent Movement (ICRM), International Fund for Agri- cultural Development (IFAD), International Federation of Red Cross and Red Crescent Societies (IFRCS), International Hydrographic Organization (IHO), International Maritime Organization (IMO), International Mobile Satellite Orga- nization (IMSO), International Olympic Committee (IOC), Inter-Parliamentary Union (IPU), International Organization for Standardization (ISO), Interna- tional Telecommunications Satellite Organization (ITSO), International Tele- communication Union (ITU), United Nations (UN), United Nations Conference
these institutions. Again, my comments above regarding the range of practical versus politically sensitive areas and the primacy of early trust-building apply.
Where the DPRK and the ROK do not overlap in membership, a useful strategy for the South is to pursue efforts at actively persuad- ing the North to seek membership in organizations of which the South is already a member, where relevant and appropriate. This offers a significant opportunity for trust-building since it suggests the South’s willingness to support greater participation by the North in global governance institutions while implying a closer relation- ship with the North in the target institution’s activities vis-à-vis other members. Of course, this latter course requires a greater awareness of political sensitivities from all sides, the obvious one being issues related to security, and is therefore not advised until at least the prac- tical relationships in the shared organizations cited above have been reliably expanded and strengthened.
Finally, the focus on international institutions offered by a law and global governance approach suggests a further advantage to strengthening the South-North relationship in shared organizations and increasing the number of organizations that the North and South share. When both the ROK and the DPRK belong to any one organization, the international community that shares that organi- zation has a greater opportunity to collaborate and coordinate with both together on the target issues of the organization. This has two
on Trade and Development (UNCTAD), United Nations Educational, Scientific, and Cultural Organization (UNESCO), United Nations Industrial Development Organization (UNIDO), World Tourism Organization (UNWTO), Universal Postal Union (UPU), World Health Organization (WHO), World Intellectual Property Organization (WIPO), World Meteorological Organization (WMO), ibid.
advantages. First, it strengthens the place of inter-Korean relations in the emerging global order. As global institutions negotiate and settle issues that have a direct or indirect influence on the inter-Korean relationship, settlements reached will naturally include principles, rules or norms that take into account the inter-Korean relationship.
Over time, these norms harden into practice and a global legal order develops that is accommodative to and supportive of inter-Korean concerns. This is not to say that the inter-Korean divide would or should therefore become permanent. Rather, it means that the prin- ciples that lead to greater integration and ultimate resolution of the inter-Korea question become a fixture of the global system itself.
This is preferable to the current situation whereby the problem, as an existential concern for the Korean people, is ignored by the inter- national community far more often than it should be.
The second advantage is to the long-term development of the inter-Korean relationship. When the international community is able to collaborate and coordinate with both the ROK and the DPRK in the same organization, the two sides have an opportunity to develop their approach to the demands of the global environment in a coordinated fashion. This is not at all to say that the advantage is to create some sort of coordinated counter-balance to the pressures of the organization. This kind of thinking is again a throwback to 20th century concepts of international power politics. What is possible instead is the coordination of South and North efforts in a manner that assures consistency, as opposed to conflict, with the emerging global order and thereby securing the synergies of that order to the advantage of the Korean Peninsula.
2. Inter-Korean Relations and the Global Governance