[KSM-CINAP Joint Column 4] The Legal System: Scaffolding for engagement or an obstacle to prevent cooperation?

The Legal System: Scaffolding for engagement or an obstacle to prevent cooperation?

Ham Bo-hyun
Law Office BeLife 법률사무소 생명
Attorney at Law Office BeLife, Auditor of the Korean Sharing Movement

The latest saga of propaganda leaflets and trash balloons reveals the current state of inter-Korean relations in this 8th decade of division. A wall of accusation, emotions, and hostility is rising along with the balloons. North Korea has declared the inter-Korean relationship as one between “two hostile states” and has installed wall-like structures along the Military Demarcation Line, raising psychological and physical barriers at the same time. Additionally, North Korea is reportedly pushing an amendment to remove concepts such as “peaceful reunification” and “national unity” from its constitution. The North has also enacted laws, such as the “Reactionary Ideology and Culture Rejection Act,” to combat the infiltration of foreign ideology and culture, creating a cross-section of institutional barriers.

Institutions can exist to legally guarantee and support cooperative exchanges between the divided entities, but they can also serve as a means of obstructing and controlling such exchanges. Although inter-Korean relations are currently tense—verging on confrontation—it is a good time to review the legal structures in place and make efforts to overhaul them where necessary. South Korea's basic law governing inter-Korean exchanges is the 1990 Inter-Korean Exchange and Cooperation Act. Does the Act live up to its purpose (as stated in Article 1) of contributing “to the peace and unification of the Korean Peninsula by prescribing matters necessary to promote reciprocal exchange and cooperation”?

Not only was the Inter-Korean Exchange and Cooperation Act created to legally guarantee civilian exchanges, it was enacted at a time when inter-Korean exchanges and cooperation were completely blocked; it played an important role and was significant in its own right. Since then, the breadth and depth of inter-Korean exchanges and cooperation has increased, but there have been no major changes. The most fundamental problem with the Inter-Korean Exchange and Cooperation Act is that it tends to regulate rather than support and facilitate inter-Korean human exchanges and cooperation. For each and every act of visit, trade, and cooperation, any party must first obtain approval from the Minister of Unification. Even the most basic contact must receive prior permission, to which the Minister of Unification can attach conditions or simply refuse to allow.

The act also gives excessive discretion to the authorities, greatly curtailing the autonomy of the private sector. If the Minister of Unification deems there is a clear concern that harm will come to inter-Korean exchanges and cooperation, national security, law and order, or the public welfare, the Minister can revoke approval for visits (Article 9(7)), for import and export (Article 13(5)), for cooperative projects (Article 17(4)), and operation of transport equipment (Article 20(3)) or refuse to accept contact reports (Article 9(2)(3)). The mere existence of such abstract terms, comprehensive rules, and the authorities' wide-ranging regulatory powers greatly undermines both the predictability and stability of exchanges and cooperative programs.

Unlike other laws, the Inter-Korean Exchange and Cooperation Act was intended as a legal device to insure and promote inter-Korean exchange and cooperation in recognition that inter-Korean exchange and cooperation is the most realistic and effective means of achieving peaceful reunification in a liberal democratic basic order, as proclaimed in the Preamble and Article 4 of South Korea's Constitution (Supreme Court, 23 July 1999). Despite a social consensus on the value of inter-Korean exchanges and cooperation, it is hard to understand why the legal system has not been able to move away from its regulatory focus on imprisoning actors. This focus is due to the deep-rooted hostility and polarization, as well as the overarching sense that inter-Korean relations must be led and managed by the authorities.

While the North Korean regime is not friendly to the South Korean system, it does not follow that ours must be a hostile relationship. South Korean courts have also acknowledged the dual nature of North Korea, stating that it is both a partner in dialogue and cooperation for peaceful reunification, yet also an anti-state force which adheres to a policy of Communist reunification and plots to overthrow South Korea’s liberal democratic system (Supreme Court, April 17). Accordingly, South Korea's Inter-Korean Exchange and Cooperation Act aligns with the view of North Korea as a partner for dialogue and cooperation, while South Korea’s National Security Law is based on the perception of North Korea as an anti-state group. And yet, the Inter-Korean Exchange and Cooperation Act is still strongly framed to regulate anti-state activities.

South Korean authorities may not be able to move away from that regulatory framework because they view exchanges and cooperation with North Koreans as a potential threat to their security at any given time, and private parties in such exchanges are viewed as potential bad actors. In that regard, exchanges and cooperation in themselves cannot be considered inviolable or an absolute good. However, North Korea’s authorities and its people should not be targets of indignity. Recognizing the unique value of exchanges and cooperation while creating an ecosystem of coexistence, centered in the private sector, is a task that cannot be neglected in the context of ongoing, inter-Korean division and confrontation. This recognition has led some to call for the law to be amended to generally allow for private exchanges and cooperation (only prohibiting them in exceptional cases), ease regulations on humanitarian aid, reduce authorities’ discretion in enforcement of the law, and serve the common good by compensating for property losses.

The current South Korean government emphasizes the need to establish a system of inter-Korean exchange and cooperation based on law and order, claiming that violations of the inter-Korean Exchange and Cooperation Act has become a social problem. In fact, last year, in the name of establishing an orderly inter-Korean exchange and cooperation system, the government proposed amendments that would expand the law’s reasons for refusing to accept contact reports and impose fines for violating various conditions of approval. I believe an objective assessment with serious consideration of what specific violations of the law have occurred in the course of exchanges and cooperation must be made to determine whether it is necessary or not to strengthen such regulations. In the same way that we should not focus on achieving supremacy by force in the name of ‘peace through strength’, we should not make the mistake of increasing the barriers to exchange and cooperation in the name of ‘law and order.’