Law and Sudden Change in North Korea Shin Beomchul

Sudden change The fast track to unification? UK or UC?

Two Koreas “a special relationship temporarily constituted in the process towards reunification” Domestic law? (SK) International law?

Article 3 (constitution) “the territory of the Republic of Korea includes the Korean Peninsula and its affiliated islands.” Claiming that the South is the sole state to have inherited the tradition of the Greater Korean Empire

North: being an un-reclaimed area outside the reach of the South’s rule ROK Supreme Court Decision 2002Do7878 ( ): “an un- reclaimed area illegally occupied by a rebellious organization.”

Cross-recognition? Inter-Korean basic agreement: North- South relations as that of a special internal relationship within one ethnic group

Unification scenario 1 The natural absorption of the North into the South –Agreement between SK and neighbors –(a referendum to gauge the receptivity of NK citizens) –A general election (SK Constitution) –A reunified government

Unification scenario 2 Creation of a new government in NK Peace treaties Unification treaty (a consensus bet SK and NK) General election (unification treaty) Enactment of a unified constitution Establishment of a unified gov’t

Scenario 1 vs. scenario 2?

Sudden change in NK Intervention or non-intervention? Intervention: diplomatic engagement or military intervention?

Legal grounds for military intervention Chapter VII of the UN Charter: self- defense Anticipatory self-defense, intervention to protect one’s own citizens, humanitarian intervention? evolving

Intervention under the UN Resolution The authorization and implementation of armed force as decided upon by the UNSC under Chapter VII of the UN Charter. –Article 39: a decision by UNSC –Article 41: political and economic sanctions –Article 42: authorization on the use of armed force

Intervention under self-defense Article 51 Anticipatory self-defense: the use of force to repel imminent threats – international customary law See UN Charter

Self-defense Resorting to the use of force to protect its citizens under threat in foreign lands –KIC

Intervention under humanitarian objectives Gaining incremental support as a last resort to prevent grave human rights infringements Necessary conditions: a humanitarian objective, a UNSC resolution calling for the cessation of oppressive acts, the necessity of a last resort, proportionality in the use of force, collective action

Intervention under the invitation by the target state

Intervention under a claim to historical rights