two Korea be considered two distinct and separate sovereign states?
Perhaps another way to phrase the same question would be to ask whether the two Koreas should be considered two temporarily divided sovereign states. Framing the correct definition of the nature of the relationship between North and South Korea takes on a spe- cial meaning in this context as the Armistice Agreement did little to end the Korean War and with the passage of time might have inad- vertently create a de facto ‘legalization” or perpetuation of the divi- sion of Korea. Lacking a meaningful frame of reference for defining the legal relations between the two Koreas, the two countries there- fore have had to create and rely on a “legal fiction” as the basis of establishing their relationship.20 As will be evident during the Fourth Period (1993~2005) and beyond, North Korea’s repeated declara- tions that the Armistice Agreement is null and void adds another layer to the complexity surrounding how best to define the relation- ship between the two Koreas.
Third Period (1972~1992): Limits of Legal Order
relationship between the two Koreas and also attempts to come to an agreement or understanding regarding the issue of reunification.
The landmark communiqué which was signed on July 4, 1972 pro- vides the first ever bilateral understanding between the two Koreas in this regard. Although the communiqué lacks the formal force of law as in a treaty or agreement, it nonetheless is important for the symbolic start of a dialogue towards a definition of the relations between the two countries. In the communiqué, the two Koreas declare three basic principles for Korean unification: “(1) unifica- tion shall be achieved independently, without depending on foreign powers and without foreign interference; (2) unification shall be achieved through peaceful means, without resorting to the use of force against each other; and (3) a great racial unity as one people shall be sought first, transcending differences in ideas, ideologies, and systems.” However this understanding between the two Koreas does not provide the impetus for a change in the relationship until roughly 20 years later when the two Koreas sign what appears to on first blush two agreements that purport to establish a formal and legal expression of the void created by the Armistice Agreement.
Moreover, it is interesting to note that in the 1972 amendment to the North Korean constitution previous reference to the capital of
“Korea” as being Seoul is deleted and replaced with Pyongyang.
Whether this amendment has any legal significance is unclear but serves as an example of North Korea’s attempts in reformulating its identity vis-a-vis South Korea.
The “Agreement on Reconciliation, Nonaggression and Exchanges and Cooperation between the South and the North” contains broad statements regarding reconciliation and non-aggression including a clause that both sides will abide by the Armistice Agreement until
firm state of peace is realized. For the first time, the Agreement recognizes that the two states “not being a relationship as between states, is a special one constituted temporarily in the process of uni- fication.” The second document “Joint Declaration of South and North Korea on the Denuclearization of the Korean Peninsula” out- lines an agreement “not to test, manufacture, produce, receive, pos- sess, store, deploy, or use nuclear weapons; to use nuclear energy solely for peaceful purposes; and not to possess facilities for nuclear reprocessing and uranium enrichment.” Although from a purely legal point of view, these two documents contain sufficient legal lan- guage to support the argument that the two Koreas have created a firm basis for a new relationship, much of the bilateral achievements are illusory when viewed in the context of events following North Korea’s accession to the Nuclear Non-Proliferation Treaty (NPT) in 1985.
Under Article III of the NPT, North Korea was given 18 months to conclude a Safeguards Agreement with the International Atomic Energy Agency (IAEA). By mid 1987, the IAEA learns that it has mistakenly sent the wrong type of safeguards agreement document to North Korea and, as a result of this error, North Korea is given another 18 months in which to negotiate and sign a safeguards agreement with the IAEA. Amid suspicions of a North Korea nuclear program and the looming deadline of having to sign a safeguards agreement with the IAEA, North Korea issues a statement in August 1989 declaring in “clear terms” that it does not develop nuclear weapons.21 Two months following this statement, North Korea announces that the establishment of the Korean Peninsula as a
21 Korean Central News Agency, August 4, 1989, (FBIS-EAS-89~149).
nuclear-weapons-free zone is a precondition to signing the IAEA safeguards agreement. In what would amount to an unmistakable exercise in duplicity and feet dragging over the signing of the safe- guards agreement, in February 1990 North Korea expands its lists of demands to include removal of all U.S. nuclear weapons from South Korea, a halt to the U.S.-South Korean Team Spirit exercises and that North Korea be allowed to declare the safeguards agreement “null and void, depending on [its] evaluation of the attitudes” of nuclear weapons states.22 Over the course of the next year, North Korea con- tinues to expand on its demands to include a “legal guarantee” that the United States will not pose a nuclear threat against it, that actual inspections will be contingent upon verification of the removal of U.S. nuclear weapons in South Korea. On September 27, 1991, ten days after the both South Korea and North Korea accede to the United Nations, President George Bush announces withdrawal of all U.S. tactical nuclear weapons based in South Korea. President Roh Tae-Woo also announces that South Korea will become a part of the nuclear-weapons-free zone on the Korean Peninsula and that it will not “manufacture, possess, store, deploy or use nuclear weapons.”
On January 30, 1992, more than six years after signing the NPT North Korea finally concludes a comprehensive safeguards agree- ment with the IAEA.
If the story had ended there, the Third Period would have signi- fied the period in which the legal order enabled success in bilateral relations to play an important and parallel role in bringing forth success in a multilateral setting. The two agreements entered into by the Koreas would probably have had far more significance in
22 Yong-Son Song, Sindong-A (Seoul), August 1990, pp. 206~215.
terms of providing the legal basis upon which to advance the uni- fication debate regarding finding a mutually suitable alternative to the Armistice Agreement. Instead, this period ends in the opposite manner. The discrepancies found in the initial declaration made by North Korea regarding its program on reprocessed plutonium and the subsequent refusal to submit to special inspections by the IAEA culminates in an announcement by North Korea on March 11, 1993 of its intent to withdraw from the NPT.