FACILITATING INTER-KOREAN RECONCILIATION AND KOREANREUNIFICATION THROUGH CONSTITUTIONAL LAW: AN IRISH MODEL

FOR THE TWO KOREAS

DAMIEN PATRICK HORIGANBA (Hawaii), MA (New Brunswick), JD (Hawaii)

A THESIS SUBMITTED

FOR THE DEGREE OF MASTER OF LAWS

FACULTY OF LAW

NATIONAL UNIVERSITY OF SINGAPORE

2007

2

Acknowledgements

I wish to thank my thesis advisor, Associate Professor Victor V. Ramraj, Vice Dean of Academic Affairs at the Faculty of Law, for his advice and guidance. Helpful comments were also received from two anonymous thesis examiners. Finally, I would like to acknowledge my wife, Jocelyn, for her support.

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Table of Contents

Summary 4

List of Abbreviations & Acronyms 5

Chapter 1: Introduction 8

Chapter 2: Divided Nations Past and Present 14

Chapter 3: Promoting Peace in Northern Ireland 56

Chapter 4: Harnessing the Power of the Constitution to facilitate Reunification 92

Chapter 5: Applying the Irish Experience to the two Koreas 116

Chapter 6: Conclusion 128

4

Summary

This thesis looks at the Korean Problem from a fresh perspective. Instead of advocating a quick yet costly reunification of Korea along German lines, a new approach toboth Inter-Korean reconciliation and possible Korean reunification based on negotiated constitutional change, thesymbolic power of constitutions, and the Habermasian conceptof constitutional patriotism is proposed. Specifically, theexample of the Northern Ireland peace process is presented as an alternative legal model that can be creatively appliedto conditions on the Korean Peninsula.

5

List of Abbreviations & Acronyms

BBC British Broadcasting Corporation

BIC British-Irish Council

BIIC British-Irish Intergovernmental Conference

BIIGC See BIIC

BRD Bundesrepublik Deutschland [German for FRG]

CAIN Conflict Archive on the Internet

CIA Central Intelligence Agency

Comecon See CMEA

CMEA Council for Mutual Economic Assistance

DC District of Columbia

DCRK Democratic Confederal Republic of Koryo [proposed state]

DDR Deutsche Demokratische Republik [German for GDR]

DMZ Demilitarized Zone

DPP Democratic Progressive Party

DPRK Democratic People’s Republic of Korea [North Korea]

DUP Democratic Unionist Party

This list excludes certain standard abbreviations found in major systems of legal citation.

6

EC European Community

EEC European Economic Community

EU European Union

FRG Federal Republic of Germany [West Germany & reunified Germany]

GDP Gross Domestic Product

GDR German Democratic Republic [East Germany]

HMSO Her Majesty’s Stationery Office

ICJ International Court of Justice

IHRC Irish Human Rights Commission

IRA Irish Republican Army

KMT Kuomintang (Guomindang) [Nationalist Party based in Taiwan]

NIHRC Northern Ireland Human Rights Commission

NSMC North/South Ministerial Council

OECD Organisation for Economic Co-operation and Development

OSCE Organization for Security and Co-operation in Europe

PBS Public Broadcasting Service

PPP Purchasing Power Parity

PRC People’s Republic of China [Mainland China]

7

PSNI Police Service of Northern Ireland

ROC Republic of China [Taiwan]

ROK Republic of Korea [South Korea]

RPR Revolutionary Party for Reunification

RUC Royal Ulster Constabulary

SBA Sovereign Base Area

SDLP Social Democratic and Labour Party

SNP Scottish National Party

TRNC Turkish Republic of Northern Cyprus

UDA Ulster Defence Association

UAE United Arab Emirates

UFF Ulster Freedom Fighters

UK United Kingdom

UN United Nations

UNC United Nations Command

UNFICYP United Nations Force in Cyprus

UNTCOK United Nations Temporary Commission on Korea

US United States

USSR Union of Soviet Socialist Republics

8

UUP Ulster Unionist Party

UVF Ulster Volunteer Force

VHS Video Home System

WPK Workers’ Party of Korea

WTO World Trade Organization

9

Chapter 1: Introduction

In the evening of November 9, 1989, amid both confusion and

euphoria, the Berlin Wall, a massive structure that had long

divided one of Europe’s most important cities, suddenly

began to be destroyed by ordinary Berliners.1 That historic

moment soon became an icon for the end of the Cold War. It

also served as a landmark on the road to German

reunification.2 Less than a year later, Germany was

politically reunited.

1 For a good account of this period in German history, see Klaus Larres,Germany in 1989: The Development of a Revolution, in GERMANY SINCE UNIFICATION: THEDEVELOPMENT OF THE BERLIN REPUBLIC 33-59 (Klaus Larres, ed., 2nd ed. 2001). 2 Some writers in English use the term “reunification” while others choose “unification.” Personally, I have a slight preference for “reunification” because the main countries that I am covering in this thesis have had some previous history as single governmental entities. Equivalent terms in the German language are Wiedervereinigung and Einigung. THE OXFORD PAPERBACK GERMAN DICTIONARY 432 & 482 (3rd ed. 2002). Meanwhile, the usual term in Korean discourse is tongil, which could be translated either way although “unification” is normally used by South Koreans when writing about the issue in English while North Korean materials published in English typically use “reunification” instead. MINJUNG’S ESSENCE KOREAN-ENGLISH DICTIONARY 2010 (3rd ed. 1999). Incidentally, the Sino-Korean word tongil employs the same two Chinese characters as the Mandarin term tongyi. LANGENSCHEIDTS’ POCKET DICTIONARY CHINESE: CHINESE-ENGLISH ENGLISH-CHINESE 254, 572, and 644 (rev. ed. 2001). Literally, the pair of Chinese characters means “govern/rule” and “one.”

10

Germany had been just one of several divided nations during

the 20th century. Some, including Germany, were proxy

battlegrounds in conflicts - cold or hot - between the

United States and the Soviet Union. Others were the direct

legacy of European colonialism, ethnic conflict, religious

disputes, or a combination of these factors.

Like Germany, Korea had been split into two parts. When

Koreans witnessed the rapid reunification of East Germany

and West Germany,3 many hoped that their own decades of

national division between North Korea and South Korea4 would

3 “East Germany” was the popular English name for the former German Democratic Republic or GDR. The GDR’s capital was East Berlin. In German, the country was known as the Deutsche Demokratische Republik or often simply as the DDR. “West Germany” was the popular English name for the Federal Republic of Germany or FRG before German reunification. The German name for the FRG is Bundesrepublik Deutschland. Occasionally, the name would be abbreviated in German as BRD, but that was often viewed inthe West as having a leftist connotation. These days the country is often just called Deutschland, which is German for Germany. The old capital of the FRG was Bonn. The new capital of the FRG is Berlin, which had also been the capital of the German Reich (Deutsches Reich) until1945. 4 Officially, North Korea is known as the Democratic People’s Republic of Korea or DPRK. The formal Korean name is Joseon Minjujeui Inmin Gonghwaguk, which is sometimes shortened to Joseon, a name that had historically been associated with the entire Korean peninsula. The DPRK’s capital is Pyongyang. South Korea is known as the Republic of Korea or ROK. The formal Korean name is Daehan Minguk, which is sometimes shortened to Hanguk. The ROK’s capital is Seoul. South Koreans normally refer to the North as Bukhan, literally “North Han,” while North Koreans routinely call the South Namjoseon, literally “South

11

soon be over. There were obvious parallels given a common

Cold War heritage. Also, Korea had long been influenced by

Germany in various fields especially law. To this day,

South Korea is a civil law jurisdiction5 with significant

ties to the German school.6 Ultimately, however, Asia and

Europe would experience the end of the Cold War very

differently. Four of the five remaining officially Communist

states in the world are in Asia. And, Korea is still

divided. Moreover, relations between North Korea and South

Korea remain tense.

Joseon.” More neutral terms in Korean would be Bukcheuk and Namcheuk, which mean “Northern side” and “Southern side,” respectively. Because the informal names North Korea and South Korea are more familiar in English, I will generally use those names in this thesis. 5 Classifying a legal system as belonging to a broad “civil law tradition” is admittedly something that mostly lawyers from English common law backgrounds do to distinguish legal systems with strong rootsin Roman and Continental European law from those with an English background. Charles A. Hale, The Civil Law Tradition and Constitutionalism in Twentieth-Century Mexico: The Legacy of Emilio Rabasa, 18 Law & Hist. Rev. 257, 261(Summer 2000). See also JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: ANINTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA (2nd ed. 1985) [hereinafter MERRYMAN]. 6 The reception of the civil law in Korea came about as a result of Japanese colonial policy during the early 20th century because Japan hadalready enacted codified laws largely based on German sources. LEE SIK CHAI, AN INTRODUCTION TO KOREAN MARITIME LAW 7-8 (1999); MERRYMAN, supra note 5, at 5. Meanwhile, North Korea could be said to belong to the socialist legal tradition. The socialist legal tradition generally builds upon the civil law tradition. MERRYMAN, supra note 5, at 4.

12

After German reunification was realized, certain problems

began to emerge. The difficulty of integrating a former

centrally planned economy into an existing market economy,

even one as large and as advanced as that of West Germany,

had been underestimated by many political and business

leaders. Higher taxes and higher unemployment have plagued

Germany. This has led to various social problems including

resentment between those Germans from what had been East

Germany and Germans from the rest of the country.

Many South Koreans have learned of these problems. They now

worry about what might happen if the two Koreas were quickly

reunited. For instance, a prominent South Korean political

scientist with significant experience in both academe and

government service declared that:

An attempt to emulate German unification by Korea will

be near suicidal.7 7 SUNG CHUL YANG, THE NORTH AND SOUTH KOREAN POLITICAL SYSTEMS: A COMPARATIVE ANALYSIS v (rev. ed. 1999) [hereinafter YANG]. For a recentoverview of relations between the two Koreas, see First trains cross border: Koreas rail link fans dreams of unification (Reuters) BANGKOK POST, May 18, 2007, sec. 1, p. 5 [hereinafter FIRST TRAINS].

13

However, the immediate concern in South Korea today is

tensions with North Korea, which periodically result in

crises on the peninsula that have a further destabilizing

effect on the entire region. The present goal for many in

the South is simply easing these tensions. There is also a

desire by many for relatively normal person-to-person

interactions and joint economic development projects. With

greater reconciliation and meaningful cooperation, the stage

could be set for Korean reunification.

Another divided nation is the island of Ireland. Northern

Ireland, which is a province of the United Kingdom (UK), was

split from the rest of Ireland, which is today an

independent republic. The division of Ireland actually

predates that of both Germany and Korea. While the nature of

the division is admittedly quite different in a number of

ways, there are also some similarities especially with a

certain longing for reunification among many of the Irish

people.

14

Communal violence had been a tragic feature of life in

Northern Ireland. A turning point came with the Northern

Ireland Peace Process involving various political parties in

the province and the governments of Ireland and the United

Kingdom. In 1998, this resulted in what is widely known as

the Good Friday Agreement.8 Already the Good Friday

Agreement has eased unrest in the province. The agreement

also provides the vehicle for a brighter future by ensuring

power-sharing between the major communities and protecting

the human rights of everyone in the province. Furthermore,

it provides the basis for a peaceful and democratic

reunification of Ireland should a majority of people in both

parts of the island someday choose to reunify.

The cases of Ireland and Korea might not be obvious choices

for a study in the field of comparative constitutional law.

Certainly, there are significant differences in terms of

8 Others prefer to call it either the “Belfast Agreement” or the “Stormont Agreement” because the final negotiations took place at Stormont in Belfast, Northern Ireland. AUSTEN MORGAN, THE BELFAST AGREEMENT: A PRATICAL LEGAL ANALYSIS xiii (2000) [hereinafter MORGAN].

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geography, culture, language, colonial heritage, legal

tradition, political systems, levels of economic

development, and the nature of the division itself.

According to the methodological insights of Hirschl, Ireland

and Korea would certainly not fall within the “most similar

cases” logic.9 Indeed, given all the variables involved,

they might best be placed under Hirschl’s “most different

cases” logic.10 Ireland and Korea differ from one another in

many ways yet they do share a history of national division.

Past studies have tended to focus on Germany and Korea,

which admittedly also differ in many ways, but were both

occupied and divided at the end of World War II in a roughly

similar manner. Precisely because of this gap in the

literature on divided nations, it is worthwhile considering

if the Irish experience, which is one of promoting peace

within Northern Ireland as well as improving ties between

9 Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am.J. Comp. L. 125 (Winter 2005). 10 Id.

16

Northern Ireland and the rest of Ireland, has anything to

offer Korea.

My thesis argues that the Good Friday Agreement is an

alternative legal and political model that can be adapted to

the Korean Problem in order to reduce tensions on the

peninsula, which would then promote peace, stability, and

economic development in Northeast Asia as a whole.

Admittedly, applying an Irish model based on the Good Friday

Agreement to Korea would be something of a legal transplant,

but, if adopted, it would be “receptive transplant” i.e. a

voluntary borrowing to be carefully adjusted to local

conditions.11

Using an approach similar to that of the Good Friday

Agreement might even foster Korean reunification in the

future despite the fact that Ireland itself remains divided.

In essence, the Irish model contains features that seem

11 Daniel Berkowitz, Katharina Pistor, and Jean-Francois Richard, The Transplant Effect, 51 Am. J. Comp. L. 163, 179-180 (Winter 2003).

17

better suited to the Korean situation than the German

experience.

In Chapter 2, I look generally at the phenomenon of divided

nations with an emphasis on the constitutional aspects of

these special cases. This includes the legal basis for

reconciliation and eventual reunification. In Chapter 3, I

look specifically at relevant Irish history and the

development of the peace process in Northern Ireland

including negotiated constitutional change. Understanding

the Irish context helps one to appreciate the true nature of

what I call the Irish model. In Chapter 4, I consider the

power of constitutions including the concept of

“constitutional patriotism” (Verfassungspatriotismus) as

developed by the German social theorist Juergen Habermas and

how that can be creatively harnessed to facilitate grand

projects like reunification. In Chapter 5, I explore how

the Irish model especially the process with its various

stages and provisions for constitutional change can be

successfully exported to Korea. Finally, in Chapter 6, I

18

give my overall conclusions that Inter-Korean reconciliation

can be facilitated through constitutional law by looking for

inspiration in the Northern Ireland peace process and also

by drawing upon the symbolic power of constitutions.

Likewise, eventual Korean reunification could be realized

and a new Korean national identity for the era of

reunification could be fostered by a sense of constitutional

patriotism.

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Chapter 2: Divided Nations Past and Present

I. Introduction

In this chapter, I look at several cases of divided nations.

Some once divided nations have since been reunified. Yet,

others remain divided. Also, I consider what is meant by

nationhood and statehood especially in the context of

divided nations and explain how constitutional law figures

into a legal understanding of the special nature of divided

nations. In this connection, I will look how constitutional

law can help to promote better ties between the member

states of divided nations. Moreover, I will consider how

constitutional law might ultimately facilitate national

reunification. This background will put us in a better

position to examine the Irish experience in the following

chapter and to better understand the role that constitutions

can play addressing the unique problems of divided nations.

20

First, however, I offer an important caveat. Arguably, every

case of a divided nation is sui generis. The precise time,

manner, and reason why a particular nation was split varies

from case to case. In this connection, one might attempt to

classify divided nations based on how they came to be

divided. Such divisions could first be grouped into

divisions that were primarily external versus others that

were essentially internal. Within the external divisions we

could have at least two subcategories. Some external

divisions were clearly the result of colonial policies by

one or more colonial powers. The division of the Samoa into

American Samoa (sometimes called Eastern Samoa) and Samoa

(formerly known as Western Samoa) is a good example. It can

be traced back to American and German (then later New

Zealand) control over different parts of the island chain

inhabited by the Samoan people who share a common Polynesian

language and cultural heritage.

21

Other externally divided nations were products of the Cold

War. Germany and Korea are obvious examples. Both will be

discussed in some detail later in this thesis.

By contrast, the division of Cyprus was more internal

because it was based largely on the ethnic conflict between

Greek Cypriots and Turkish Cypriots although it must be

noted that both Greece and Turkey bear some responsibility

for the division of Cyprus as external actors. Likewise,

the split between Mainland China and Taiwan was mostly

internal because it arose from the Chinese civil war, but

subsequent external influences i.e. Cold War politics

solidified the division.

The experience after partition is also something that

clearly differs with each case. Was there a war between the

two sides? If so, how did the conflict end? What role was

played by outside powers?

22

As will be described in this thesis, the two Koreas fought

each other in a bitter war that began only after the

division of the peninsula had solidified. Yet, by contrast,

the former two Germanys managed to avoid such a conflict.

Full scale post-division wars have also been avoided in the

cases of Cyprus and China/Taiwan.12

Yet, there are certain common traits among divided nations.

Some common traits shared by all or at least most divided

nations include legal problems associated with divided

families,13 disputed ownership of private (and public)

property abandoned and/or confiscated as a result of

national division,14 contested sovereignty over territory,15

12 A particularly unusual situation would be that of the Republic of Yemen. In Yemen there was a brief civil war several years after reunification. See generally, THE YEMENI WAR OF 1994: CAUSES AND CONSEQUENCES (Jamal S. Suwaidi et al, eds., 1995). For a look at Yemenbefore reunification, when the country was divided into the Yemen Arab Republic, or North Yemen (Sana), and the People’s Democratic Republic ofYemen, or South Yemen (Aden), see Robin Leonard Bidwell, THE TWO YEMENS (1983). 13 This typically involves family law matters as well as wills and trusts.14 Are the former owners entitled to return of the property or monetary compensation? 15 There may be conflicting territorial claims involving all or part of each other’s territory.

23

diplomatic recognition,16 international trade,17 foreign

investment,18 taxes,19 enforcement of court judgments and

arbitral awards,20 and questions of citizenship.21

Such common traits enable comparisons to be made. Also,

they allow us to think about the possibility of

reunification as well as the likely ramifications of

reunification. In the next couple of sections, I will

describe the Korean context and briefly examine the German

experience and its relevance to the Korean Problem.

II. The Two Koreas

Korea is an ancient land with archaeological evidence of

human habitation dating back to the Palaeolithic Period

16 Will the separated states recognize each other? What about diplomaticrecognition by other states? 17 Should trade between the two sides be considered as being international trade? This is especially a concern if at least one side is a member of the World Trade Organization (WTO) in light of the treatyobligations that a WTO member has towards its fellow members. 18 Is investment from one side permitted by the other side? If so, is it considered to be “foreign” investment? How is such investment protected? 19 Are there provisions against double taxation? 20 Can a judgment from a court in one side be enforced in the other? How about arbitral awards? 21 Can individuals from one side claim citizenship from the other side?

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around 40,000 to 50,000 years ago although it is not clear

if these Palaeolithic communities represent the true

ancestors of modern Koreans.22 In terms of cultural myths,

the legendary founder of Korea is Dangun, who is said to

have lived nearly 5,000 years ago.23 Historical records and

archaeological evidence show that a series of small states

control various parts of the Korean Peninsula roughly two

millennia ago.24

The first state to unify the kingdoms on the peninsula was

the Silla Dynasty, an ally of the Tang Dynasty of China,

which achieved an early form of Korean unification in the

year 676 A.D. by defeating the other Korean kingdoms

although it did lose control of a considerable amount of

Korean territory in Manchuria in the process.25 This unified

Korean state lasted for more than two centuries before

breaking up. Korea was then unified again in 936 by the

22 YANG, supra note 7, at 3. 23 Id., at 4. 24 Id. 25 Id. .

25

Goryeo Dynasty.26 This dynasty lasted until it was

overthrown in a military coup in 1388. A new dynasty,

Joseon, was then established that would last until 1910 when

Korea became a Japanese colony. The present boundary between

North Korea and China, which generally follows the Yalu and

Tumen Rivers, can basically be traced back to the northern

border of Joseon with China that was formalized during the

reign of King Sejong (r. 1418-50).27 Maps of the Joseon

Dynasty show that it controlled a territory virtually

identical with that of the two Koreas today.28 Hence, Korea

was a centralized nation-state long before many European

countries. This helps to explain the strong national

identity that Koreans generally have.

26 Id., at 5. The English name “Korea” is ultimately derived from Goryeo,which is also often transliterated as Koryo. Incidentally, the common Japanese name for Korea is “Chosen,” which is based on the pair of Chinese characters read as Joseon in Korean. 27 Id. Currently, the Sino-North Korean border is about 1,416 kilometreslong while there is also a short border of some 19 kilometres between Russia and North Korea. EWAN A. ANDERSON, INTERNATIONAL BOUNDARIES: A GEOPOLITICAL ATLAS 454-455 (2003) [ANDERSON]; 28 See, e.g., YANG SUNG-JIN & LEE NAM-HEE, CLICK INTO THE HERMIT KINGDOM: VIRTUAL ADVENTURE INTO THE CHOSON DYNASTY ix (2000); ANDERSON, supra note27, at 455 & 461.

26

Between 1910 and 1945 Korea was rather harshly ruled by

Japan.29 Despite being a Japanese colony rather than an

actual member of the Axis Powers, Korea was divided at the

end of the Second World War roughly along the Thirty-eight

Parallel into two occupation zones, a Soviet zone in the

north and an American zone in the south.30

In 1947, an attempt was made to hold Korea-wide elections

under the United Nations Temporary Commission on Korea

(UNTCOK).31 However, UNTCOK officials were not able to gain

access to the Soviet zone in the North.32 Elections were

held only in the South.33 This lead in 1948 to the

formation of the capitalist ROK in the South allied with

Washington and shortly thereafter the Communist DPRK in the

North allied with Moscow.34 The ROK was recognized by the

29 JOUNGWON KIM, DIVIDED KOREA: THE POLITICS OF DEVELOPMENT 1945-1972 8-9 (1976) (reprint ed. 1997). 30 See, e.g., YANG, supra note 7, at 133-134; NATHANIEL PEFFER, THE FAR EAST: A MODERN HISTORY 455-459 (1958). See also UN General Assembly Resolution 112 (November 14, 1947). 31 See, e.g., PAUL H. CLYDE & BURTON F. BEERS, THE FAR EAST: A HISTORY OF WESTERN IMAPCTS AND EASTERN RESPONSES, 1830-1975 477 (1975). 32 Id. 33 Id. 34 Id.

27

UN although it did not become a member of the General

Assembly until decades later.35

In 1950, with the apparent approval of both the USSR and the

newly established PRC, North Korea attacked South Korea

thereby starting the Korean War, a conflict that can be

viewed as being partly a civil war and partly an

international conflict.36 The United States, South Korea,

and 15 other nations contributed troops to the United

Nations Command (UNC) to defend South Korea while the PRC

35 UN General Assembly Resolution 195 (December 12, 1948). See also UN General Assembly Resolution 293 (October 21, 1949), UN General Assembly Resolution 376 (October 7, 1950), and UN General Assembly Resolution 410(December 1, 1950). South Korea and North Korea were jointly admitted to the UN only in 1991. UN Security Resolution 702 (August 8, 1991). A similar joint admission had been granted to the two Germanys earlier. UNSecurity Council Resolution 335 (June 22, 1973). 36 JOHN ALLPHIN MOORE, JR. & JERRY PUBANTZ, ENCYCLOPEDIA OF THE UNITED NATIONS 192-195 (2002) [hereinafter MOORE & PUBANTZ]. See also UN Security Council Resolution 82 (June 25, 1950), UN Security Council Resolution 83 (June 27, 1950), UN Security Council Resolution 84 (July 7, 1950) UN Security Council Resolution 85 (July 31, 1950), UN Security Council Resolution 88 (Nov. 8, 1950), and UN Security Council Resolution 90 (January 31, 1951). Although the war is normally known as the Korean Warin the West, in North Korea it has been called the “Fatherland Liberation War” (Joguk Haebang Jeonjaeng) and the official line is that theUS and South Korea started the conflict and that North Korea won. THE PARTY HISTORY INSTITUTE OF THE CENTRAL COMMITTEE OF THE WORKERS’ PARTY OF KOREA, BRIEF HISTORY OF THE REVOLUNTIONARY ACTIVITIES OF COMRADE KIM IL SUNG 140-169 (1969) [hereinafter PARTY HISTORY INSTITUTE]. Meanwhile, in South Korea, the war is often called simply the “June 25th

War” (6.25 Jeonjaeng) because the conflict started on June 25, 1950.

28

later intervened with ground troops on the North Korean

side.37 The creation of the UNC was only possible due to a

Soviet boycott of sessions of the UN Security Council over

the question of Chinese seat on the Security Council, which

was still being held by the Kuomintang (KMT) government that

had been defeated on Mainland China and had fled to

Taipei.38

The Korean War resulted in heavy casualties on both sides.39

It lasted until 1953 when it ended in an armistice agreement

rather than a formal peace treaty.40 The actual parties to

37 MOORE & PUBANTZ, supra note 36, at 194. The Soviet Union provided somecovert air support, but it was not an official belligerent in the conflict. 38 MOORE & PUBANTZ, supra note 36, at 194. Incidentally, when describingthe permanent members of the UN Security Council, the UN Charter still retains the original references to the Republic of China (ROC) and the Union of Soviet Socialist Republics (USSR). UN Charter, art. 23. In 1971, the China seat was taken over by representatives of the People’s Republic of China (PRC). MOORE & PUBANTZ, supra note 36, at 438. Currently, the ROC i.e. Taiwan has no presence in any UN body. In 1991,the USSR’s seat was taken over by the Russian Federation when the Russian Federation declared that it was the successor state to the USSR.MOORE & PUBANTZ, supra note 36, at 442. 39 For a description of the social impact of the Korean War, see KIM KYONG-DONG & LEE ON-JOOK, THE TWO KOREAS: SOCIAL CHANGE AND NATIONAL INTEGRATION 97-124 (Korean Studies Series. No. 23, 2003) [hereinafter KIM & LEE]. . 40 For a detailed study of this agreement, see BYUNG-HWA, PEACE AND UNIFICATION IN KOREA AND INTERNATIONAL LAW (Occasional Papers/Reprint Series in Contemporary Asian Studies, University of Maryland School of Law, No. 2 (73), 1986) [hereinafter LYOU].

29

the armistice agreement, which was signed at the border

village of Panmunjeom, are the UNC and both the North Korean

and Communist Chinese militaries.41 The Cease-fire Line of

1953 was roughly similar to the old de facto border between

the two Koreas along the Thirty-eight Parallel.42 Hence, the

Korean War can be said to have ended in a stalemate.43 The

lingering memory of the bitter war experience has

complicated relations between the two Koreas every since.

In terms of de facto territory North Korea is slightly larger

than South Korea.44 However, it is estimated that South

Korea has more than twice the population of North Korea.45

Given the nature of the regime in Pyongyang, it is

impossible to obtain detailed, accurate information on North

Korea’s economy, but the available evidence suggests that it

41 South Korea came under the UNC is thus only indirectly represented while North Korea is represented through the Korean People’s Army and China is represented through the so-called Chinese People’s Volunteers. LYOU, supra note 40, at 42-43. 42 See, e.g., PEFFER, supra note 30, at 457. 43 American forces stationed in South Korea still use the UNC name. United States Forces Korea, United Nations Command (last visited April 13, 2008) http://www.usfk.mil/org/unc.html. 44 ANDERSON, supra note 27, at 454-462. 45 Id.

30

is much smaller and less developed than South Korea’s

economy.46

Politically, despite being a state originally inspired by

Marxism-Leninism with a ruling Communist party known as the

Workers’ Party of Korea (WPK), North Korea has been

dominated by one family since 1948.47 Kim Il Sung,

sometimes referred to in the North as the “Great Leader”

(Widaehan Suryeong), ruled until his death in 1994, and his

son, Kim Jong Il, who is sometimes called the “Dear Leader”

(Chinae Haneun Jidoja), has ruled North Korea since then.48 The

official ideology is Juche (self-reliance), which mixes some

Marxist-Leninist concepts with a dose of Korean

46 For example, the per capita gross domestic product (GDP) on a purchasing power parity (PPP) basis has been estimated to be US$1,700 in2007 for North Korea while the comparable per capita GDP figure for South Korea is US$24,600. CIA, The World Factbook: Korea, South (updated on March 20, 2008) https://www.cia.gov/library/publications/the-world-factbook/geos/ks.html; CIA: The World Factbook: Korea, North (updated on March 20, 2008) https://www.cia.gov/library/publications/the-world-factbook/geos/kn.html. 47 See, e.g., RICHARD SACCONE, TO THE BRINK AND BACK: NEGOTIATING WITH NORTH KOREA 17 (2003) [hereinafter SACCONE]. 48 SACCONE, supra note 47, at 17.

31

nationalism.49 In North Korea, the calendar itself is based

on Juche years with the year 2008 being known officially as

“Juche 97.”50

South Korea’s political history is more complicated. The

country has witnessed a series of civilian and military

leaders of different temperaments and varying abilities, but

South Korea is now clearly a representative democracy with

multiple political parties contesting elections, a

relatively free press, and a constitutional court.51 The

49 SACCONE, supra note 47, at 30-32. Juche is often translated into Englishas “self-reliance,” although the word can also mean “chief object,” “subject,” or “main body.” MINJUNG’S ESSENCE KOREAN-ENGLISH DICTIONARY 1720 (3rd ed. 1999). This Sino-Korean word is ultimately based on two Chinese characters that literally mean “lord”and “body.” These characters would be pronounced in Mandarin as zhu and ti, respectively. KUM SUNG NEW ACE CHINESE CHARACTER DICTIONARY 39, 1659(1989).50 See, e.g., Korean Central News Agency, Korean News (last visited on April 17, 2008) http://www.kcna.co.jp/index-e.htm. The Year 1 in the Juche calendar is 1912, which was the year in which Kim Il Sung was born according to official accounts. PARTY HISTORY INSTITUTE, supra note 36, at 3. 51 Kun Yang, The Constitutional Court and Democratization, in RECENT TRANSFORMATIONSIN KOREAN LAW AND SOCIETY 33-46 (Dae-Kyu Yoon, ed., 2000). South Korea,like a number of other civil law jurisdictions, has a special constitutional court that is separate from the supreme court. The role of a constitutional court in the civil law tradition can be traced to Hans Kelsen who established a constitutional court in Austria during theearly 20th century. Rudolf Thienel, Kelsen, Hans, in JURISTEN: EIN BIOGRAPHISCHES LEXIKON: VON DER ANTIKE BIS ZUM 20. JAHRHUNDERT 354-356 (Michael Stolleis, ed. 2001).

32

current President is Lee Myung-bak, a former businessman and

mayor, who took office in February 2008.52

Both North Korea and South Korea are officially committed to

reunification although each side naturally seems to prefer

unification essentially on its own terms.53 Given the

totalitarian reality of North Korea there is no public

debate about different approaches to reunification, but

certain aspects of the issue are debated to some extent in

the South although many Koreans would appear to support the

abstract notion of eventual reunification in principle.54

Nevertheless, some South Koreans do have reservations

because of the big economic gap between the two Koreas along

with the expected financial burden that would reunification

with North Korea have on South Korea.55

52 BBC News, Country profile: South Korea (updated April 11, 2008) http://news.bbc.co.uk/2/hi/asia-pacific/country_profiles/1123668.stm. 53 See, e.g., YANG, supra note 7, at 797-798.54 Id. 55 Norimitsu Onishi, Dreams of a Korean Summer: School and a New Cell, New York Times, http://www.nytimes.com/2005/08/27/international/asia/27jeong.html?fta=y (posted on August 27, 2005).

33

III. Northern and Southern Approaches to Korean Reunification

For decades, reunification (tongil) has been a stated policy

goal of both North Korea and South Korea. Back in 1950,

North Korea attempted to reunify the country under Communism

through force.56 Despite boldly claiming victory in the

Korean War,57 North Korea failed to achieve its main

objective of Communist reunification – something that North

Vietnam would realize two decades later when it reunified

Vietnam by force.58

56 The following quote from a North Korean source gives one a good senseof the North’s official line on the Korean War:

Comrade Kim Il Sung taught [in a radio address on June 26, 2950] that in the Fatherland Liberation War against the U.S. imperialists and Syngman Rhee gang the Korean people must defend with their lives the Democratic People’s Republic of Korea and itsConstitution, overthrow the traitorous puppet regime in the southern half and liberate the southern half of our country from the colonial rule of the U.S. imperialists, restore in the southern half the people’s committees the organs of genuine people’s power – and accomplish the cause of national unification under the banner of the Democratic People’s Republic of Korea.

PARTY HISTORY INSTITUTE, supra note 36, at 141. 57 “On July 27, 1953, the just Fatherland Liberation War of the Korean people ended in a great victory for them thanks to the distinguished strategy and tactics and wise leadership of Comrade Kim Il Sung.” PARTY HISTORY INSTITUTE, supra note 36, at 166. Interestingly, no mentionis made of relatively overt Chinese let alone covert Soviet support of North Korea during the conflict. 58 For a perspective from Hanoi on Vietnamese reunification, see NGUYEN KHAC VIEN, VIETNAM: UNE LONGUE HISTORIE 419-480 (5th rev. ed. 2004).

34

However, while not ruling out the use of force again, the

North Korean leadership has attempted a political solution

to Korean reunification.59 In 1960, the first South Korean

President, Syngman Rhee, was ousted from office by student

protests and went into exile in Hawaii. The new South

Korean government renounced the use of force in reunifying

the country. Kim Il Sung, the North Korean leader at the

time, then proposed a Korean confederation that was promptly

rejected by the South Korean leadership.60

In 1961, a military coup in the South saw the rise of

General Park Chung Hee.61 Park reaffirmed not using force to

reunify the country.62 In 1970, he proposed a new approach

59 Moon and Lee argue that there are four possible scenarios for Korea reunification: 1) reunification by absorption (like in the German case); 2) reunification by force (as in Vietnam), 3) reunification by international trusteeship (possible intervention by external forces and a transitional period), and 4) reunification by consensus (like the return of Hong Kong to China). Chung-in Moon & Dong-Yoon Lee, Korean Unification: Contending Scenarios and Implications for Japan, JAPAN AND KOREAN UNIFICAITON 15-32 (Young-Sun Lee & Masao Okonogi, eds., 1999). 60 Kwak Tae-Hwan, The Stalemate in Inter-Korean Unification Dialogue: Issues and Perspectives, in KOREAN POLITICS: STRIVING FOR DEMOCRACY AND UNIFICATION 461-482, 463 (Korean National Commission for UNESCO, ed. 2002) [hereinafter KWAK].61 KWAK, supra note 60, at 463-464. 62 KWAK, supra note 60, at 464.

35

to the North if the North would rule out the use of force,

communizing the South, and engaging in guerrilla operations

against the South.63 Park’s proposal was rejected, but the

following year saw talks between the Red Cross societies of

the two Koreas on reuniting families separated during the

Korean War.64 Eventually, there were a series of secret

talks held at various locations between representatives of

the two Koreas that eventually resulted in 1972 in a Joint

Communiqué.65

The Joint Communiqué stated that the basic principles that

Korean reunification should be achieved independently

without recourse to outside forces, by peaceful means, and

that “great national unity” should be promoted.66 The two

sides also agreed to refrain from provoking each other, to

realize exchanges in various fields, to cooperate in the Red

Cross talks, to install an inter-Korean hot line, to set up

an inter-Korean coordinating committee, and to uphold the

63 KWAK, supra note 60, at 464. 64 KWAK, supra note 60, at 464. 65 North-South Joint Communiqué, Pyongyang, July 4, 1972. 66 North-South Joint Communiqué, Pyongyang, July 4, 1972.

36

Joint Communiqué.67 However, problems soon arose over the

interpretation of the Joint Communiqué and no real progress

was made.68

In January 1979, President Park made a new proposal to North

Korea to meet at any time, at any place, and on any level

for talks without any preconditions.69 North Korea responded

with its own proposal for an inter-Korean conference with

representatives from all political parties in the two

Koreas. Difficulties soon arose over the North’s demand for

the participation of the Revolutionary Party for

Reunification (RPR). The RPR was an apparent underground

political party dedicated to overthrowing the regime in

Seoul and presumably linked with the North’s ruling WPK.

In May 1979, the then UN Secretary General Kurt Waldheim

visited both Pyongyang and Seoul in an effort jump start

inter-Korean relations, but ultimately the intervention was

67 North-South Joint Communiqué, Pyongyang, July 4, 1972.68 KWAK, supra note 60, at 467.69 KWAK, supra note 60, at 469-470.

37

unsuccessful.70 Later that year, US President Jimmy Carter

proposed three-way talks between the two Koreas and the

US.71 However, Carter’s proposal was rejected by the North,

which insisted upon reunification being discussed solely by

the two Koreas, the withdrawal of US troops from South

Korea, and a peace treaty to formally end the Korean War.

The North also maintained that the South was not entitled to

participate in discussions about a peace treaty because the

South was not a party to the 1953 armistice agreement.

President Park was assassinated by the head of the South

Korean intelligence agency on October 26, 1979.72 This

ushered in a period of political instability in South Korea.

On December 12, 1979, General Chun Doo-Hwan and a group of

supporters launched another coup. In January 1980, North

Korea offered to resume dialog. This lead to some working

level talks, but no meaningful progress was made.

70 KWAK, supra note 60, at 470.71 KWAK, supra note 60, at 470-471. 72 KWAK, supra note 60, at 471.

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Domestic opposition to the new military government lead to a

large protest in the city of Gwangju73 in May 1980 that was

violently quelled by the South Korean military.74 For a

while after the Gwangju Incident, North Korea refused to

negotiate with South Korea.

On October 10, 1980, Kim Il Sung again proposed that Korea

be reunified as a confederation albeit this time on a

permanent rather than transitional basis, and suggested

calling the proposed state the “Democratic Confederal

Republic of Koryo” (DCRK).75 The name itself is revealing.

Both the words “Democratic” and “Republic” can be found in

North Korea’s existing official name – Democratic People’s

Republic of Korea. In English, the DCRK sounds rather close

to DPRK. Also worth noting is the use of the name Koryo,76

73 Also transliterated as Kwangju. 74 See, e.g., James M. West, Martial Lawlessness: The Legal Aftermath of Kwangju, 6 Pac.Rim L. & Pol’y J. 85 (Jan. 1997) [hereinafter WEST].75 The People’s Korea, On Establishing Democratic Confederal Republic of Koryo – Best System for Reunification (posted in 1997) http://www1.korea-np.co.jp/pk/027th_issue/98012104.htm [hereinafter The People’s Korea]. See also Democratic People’s Republic of Korea, Naenara,Three Charters for National Reunification (posted on April 3, 2008) http://www.kcckp.net/en/news/news_view.php?13+816.

76 Also transliterated as Goryeo.

39

which was the name of an old dynasty that had its capital in

Gaesong77 in what is now a part of North Korea just above

the somewhat ironically named Demilitarized Zone (DMZ) that

functions as the de facto border between the two Koreas.78

However, Koryo is different from either Joseon79 or Hanguk,

which are the short Korean names for Korea currently used by

the governments of North Korea and South Korea,

respectively.

The proposed DCRK would have had one central national

government with two regional governments.80 There would

have been a Supreme Confederal Assembly as a national

parliament with an equal number of representatives from the

North and the South along with some representatives for

Overseas Koreans.81 Such a system would have apparently

favoured the North because the North would be effectively

overrepresented due to the North’s much smaller population.

77 Also transliterated as Kaesong. 78 See, e.g., KOREAN INFORMATION SERVICE, FACTS ABOUT KOREA 19-21 (rev. ed. 2001). 79 Joseon is also often transliterated as Chosun or Choson. 80 The People’s Korea, supra note 75. 81 The People’s Korea, supra note 75.

40

As for the Overseas Koreans, the North would have presumably

focussed on the large Korean community in Japan – many of

whom support Pyongyang.82

The proposed assembly would have had an executive-like

Confederal Standing Committee that would oversee the two

autonomous governments.83 However, there no mention was made

of a president, a prime minister, or even a chair.

The DCRK would have been an independent, neutral, non-

aligned, nuclear-free state with a single military not

belonging to any military alliance or bloc.84 This was

clearly aimed at removing American military forces from the

Korean Peninsula. As for the nuclear-free status, the two

Koreas did at one point agree to banning nuclear weapons on

the Korean Peninsula.85

82 A pro-Pyongyang body based in Japan is the Chongryun or “General Association of Korean Residents in Japan.” Anthony DiFilippo, Targeting Chongryun?, Nautilus Institute (posted on October 11, 2007) http://www.nautilus.org/fora/security/07076DiFilippo.html. 83 The People’s Korea, supra note 75. 84 The People’s Korea, supra note 75. 85 North Korea-South Korea, Joint Declaration of the Denuclearisation ofthe Korean Peninsula (January 20, 1992). This, of course, took place long before the North’s 2006 nuclear test.

41

The DCRK would have had single diplomatic representation,

but there would have been some room for limited foreign

relations to be carried out by the regional governments.86

At the time of the proposal, neither North Korea nor South

Korea was a member of the UN. Also, only a small handful of

states had full diplomatic ties with both Koreas.

It was envisioned that there would be some form of mixed

economy in the DCRK.87 This part of the proposal recognized

on some level the profound differences in the economic

systems between the two Koreas. Otherwise, it was rather

vague.

In 1987, a new South Korean Constitution came into effect.88

President Roh Tae-woo, who had been a supporter of Chun, was

directly elected by South Korean voters in 1987 thanks to a

86 The People’s Korea, supra note 75. 87 The People’s Korea, supra note 75. 88 Jong-sup Chong, Political Power and Constitutionalism, in RECENT TRANSFORMATIONS IN KOREAN LAW AND SOCIETY 11-32 (Dae-Kyu Yoon, ed., 2000) [hereinafter CHONG].

42

split in the opposition vote.89 President Roh announced a

new policy aimed at North Korea and other Socialist

countries. Roh’s policy became known as Nordpolitik, which in

German means “Northern policy.” The use of a German name was

apparently inspired by the famous Ostpolitik, or “Eastern

Policy” 90 of Willy Brandt, the winner of the 1971 Nobel

Peace Prize, who served as Foreign Minister and Vice-

Chancellor of West Germany from 1966 to 1969, and as

Chancellor from 1969 to 1974.91

Roh’s Nordpolitik did lead to South Korea establishing full

diplomatic relations with a number of Socialist and formerly

Socialist countries. Moreover, most Socialist countries

including China and the USSR participated in the 1988 Summer

89 CHONG, supra note 88, at 11-12.90 Ostpolitik is discussed in DIETMAR WILLOWEIT, DEUTSCHE VERFASSUNGSGESCHICHTE: VOM FRANKENREICH BIS ZUR WIEDERVEREININGUNG DEUTSCHLANDS 417 (3rd ed. 1997) [hereinafter “WILLOWEIT”]. 91 For a biographical sketch of Willy Brandt in English, see Nobel Foundation, Willy Brandt: The Nobel Peace Prize 1971 (last visited April 24, 2008) http://nobelprize.org/nobel_prizes/peace/laureates/1971/brandt-cv.html.

43

Olympics held in Seoul despite North Korea’s boycotting of

the event.92

Roh was followed by Kim Young-Sam. Previously, Kim had been

an opposition figure, but in a surprise move he merged his

political party with the Roh’s governing party and another

political party lead by Kim Jong-pil.93 This unusual three-

way merger meant that the transfer of power was peaceful,

but within the same political bloc.

In 1994, during Kim Young-Sam’s presidential term, Kim Il

Sung died.94 This led to a period of political uncertainty

regarding North Korea as the status of Kim Jong Il, the son

of Kim Il Sung, was uncertain at the time. So, no major

breakthrough in inter-Korean relations was realized.

92 International Olympic Committee, Seoul 1988: Games of the XXIV Olympiad (lastvisited April 24, 2008) http://www.olympic.org/uk/games/past/index_uk.asp?OLGT=1&OLGY=1988. 93 Kim is a very common Korean family name shared by millions of ethnic Koreans just like other widespread surnames such as Lee and Park. See, e.g., BRUCE K. GRANT, A GUIDE TO KOREAN CHARACTERS: READING AND WRITING HANGUL AND HANJA 335 (2nd rev. ed. 1982). 94 SACCONE, supra note 47, at 17.

44

Kim Young-Sam was followed by Kim Dae-jung, who was elected

in December 1997 in the wake of the Asian Financial

Crisis.95 Kim Dae-jung, a left-centre politician, was a

long-time opposition leader who had been persecuted by

conservative South Korean governments although he did enter

into an informal alliance Kim Jong-pil, a conservative

politician who had previously governed with Kim Young-Sam.96

Kim Dae-jung announced his so-called “sunshine policy”

towards North Korea -- the name is said to have been

inspired by one of Aespo’s fables wherein sunshine was shown

to be more effective than wind -- in which a more

conciliatory approach would be followed by the South towards

the North based on peaceful coexistence.97 Kim stated that

there were three principles to his sunshine policy: 1) no

armed provocation by the North will be tolerated; 2)

95 For a study of the impact of the financial crisis on Korea, see JASPER KIM, CRISIS AND CHANGE: SOUTH KOREA IN A POST-1997 NEW ERA (2005) [hereinafter CRISIS AND CHANGE]. 96 Nobel Foundation, Kim Dae-jung: The Nobel Peace Prize 2000 (last visited April24, 2008) http://nobelprize.org/nobel_prizes/peace/laureates/2000/dae-jung-bio.html [hereinafter NOBEL FOUNDATION]. 97 CRISIS AND CHANGE, supra note 95, at 143.

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national reunification by means of a takeover or absorption

of the North will not be attempted; and 3) reconciliation

and cooperation will be promoted.98

The diplomatic highlight of the sunshine policy occurred

when Kim Dae-jung went to Pyongyang in June 2000 to meet

with Kim Jong Il for the first ever inter-Korean summit.99

The summit resulted in a short (and perhaps intentionally

vague) Joint Declaration with the following key points. The

two sides would: (1) seek reunification alone without

interference by any outside power; (2) recognize the common

elements in each side’s approaches toward reunification; and

(3) allow mutual visits by separated family members; and

promote development and economic cooperation.100 It was also

agreed that Kim Jong Il would visit the South at an

appropriate time.101

98 CRISIS AND CHANGE, supra note 95, at 143. 99 For an analysis of the summit, see Lee Hong Yung, The North-South Summit and the International Environment, in KOREAN POLITICS: STRIVING FOR DEMOCRACY AND UNIFICATION 555-583 (Korean National Commission for UNESCO, ed. 2002) [hereinafter NORTH-SOUTH SUMMIT]. 100 NORTH-SOUTH SUMMIT, supra note 99, at 561-562. 101 NORTH-SOUTH SUMMIT, supra note 99, at 562.

46

For his efforts at improving ties with the North as well as

his many years struggling for democracy in the South, Kim

Dae-jung won the 2000 Nobel Peace Prize thereby becoming the

first Korean noble laureate in any field. 102 However, the

summit would later be marred in controversy when it was

revealed that the South had apparently paid around US$200

million to the North ahead of the event with the Hyundai

Group, a large South Korean conglomerate, playing a role in

transferring funds to the North.103

The main practical result of the sunshine policy has been

several projects involving economic cooperation between the

two Koreas most notably opening up a small part of North

Korea in the Diamond Mountains104 to ordinary South Korean

tourists with a resort run by the Hyundai Group.105

Likewise, a special economic zone was set up in Gaesong, a

102 NOBEL FOUNDATION, supra note 96. 103 BBC News, South Korea convicts six over summit (posted on September 26, 2003) http://news.bbc.co.uk/2/low/business/3141836.stm. 104 In Korean, this area is known as Geumgangsan, which is also transliterated as Kumgangsan. The Diamond Mountains are located relatively close to the DMZ. Many regard the area as one of the most scenic regions on the Korean Peninsula. 105 NORTH-SOUTH SUMMIT, supra note 99, at 560.

47

town just north of the DMZ, for industrial development by

South Korean investors.106 Trade between the two Koreas

increased considerably after the June 2000 Summit, and South

Korea provided considerable humanitarian aid to North

Korea.107

In terms of US-Korean ties, the then administration of

President Bill Clinton was generally supportive of South

Korea’s efforts with a North Korean delegation visiting

Washington, and the Secretary State, Madeline Albright

visiting Pyongyang.108 However, the administration of

President George Bush has taken a relatively hard-line

approach towards North Korea with the labelling of North

Korea as a member of a

so-called “Axis of Evil” along with Iraq and Iran.109 The

Bush Administration’s concerns over North Korea’s nuclear

ambitions obviously complicated matters.

106 NORTH-SOUTH SUMMIT, supra note 99, at 562. See also, LIM EUL-CHUL, KAESONG INDUSTRIAL COMPLEX: HISTORY, PENDING ISSUES, AND OUTLOOK (2007)[hereinafter LIM]. 107 CRISIS AND CHANGE, supra note 95, at 144.108 CRISIS AND CHANGE, supra note 95, at 144-5.109 CRISIS AND CHANGE, supra note 95, at 145-146.

48

Kim Dae-jung’s successor and erstwhile protégé, Roh Moo-

hyun,110 followed a very similar policy although President

Roh renamed it as the Peace and Prosperity Policy.111 During

Roh’s term Seoul’s relations with Washington were often

strained due in part to differing approaches to North

Korea.112 Late in his term, in October 2007, Roh travelled to

Pyongyang for what was only the second inter-Korean

summit.113 At the time of writing, Kim Jong Il has not yet

visited the South.

The current South Korean President is the recently elected

Lee Myung-bak, a former Hyundai executive and mayor of

Seoul, who represents a return to relatively conservative

albeit pragmatic policies in South Korea.114 Lee has promised

110 President Roh Moo-hyun, who came from a civilian background, should not be confused with an earlier South Korean President, Roh Tae-woo, whowas a former general. 111 CRISIS AND CHANGE, supra note 95, at 146.112 CRISIS AND CHANGE, supra note 95, at 146. 113 Al Jazeera, Korean leaders meet in Pyongyang (updated on October 2, 2007) http://english.aljazeera.net/NR/exeres/5C4493A2-8E06-4CB7-AF7E-D9027B0C6D81.htm. 114 President-elect Lee Myung-bak Seeks Pro-business Policies, Pragmatic Diplomacy, 4 KOREA POLICY REVIEW 6 (January 2008); BBC News, Profile: Lee Myung-bak (updated on February 25, 2008)

49

a different approach towards North Korea that would still

engage the North, but focus more on investment and thus less

on aid.115 Lee has also emphasized the need for good

relations between Seoul and Washington.116 This approach has

been dubbed the “MB Doctrine” after the English initials of

Lee’s given name.117 The MB Doctrine includes aiming to raise

North Korea’s per capita GDP to US$3,000118 within ten years

if the North gives up its nuclear weapons programme.119 Lee

has also proposed closing the South’s Unification Ministry,

the main body that has handled policy towards the North, by

http://news.bbc.co.uk/2/hi/asia-pacific/7150162.stm. See also New York Times, Times Topics: Lee Myung-bak (posted on February 26, 2008). The conservatives now also enjoy a majority in the South Korean legislature,the National Assembly (Gukhoe). Kim Ji-Hyun, Ruling Party Gains Assembly Control, 4 KOREA POLICY REVIEW 15 (May 2008). 115 Digital Chosunilbo, Lee Myung-bak Unveils Inter-Korean Cooperation Plans (updated September 11, 2007) http://english.chosun.com/w21data/html/news/200709/200709110015.html.116 Id. 117 Jin Dae-woong, Veteran diplomats, academics formulate the MB Doctrine, The Korea Herald (Seoul), December 21, 2007, available at http://www.koreaherald.co.kr/NEWKHSITE/data/html_dir/2007/12/21/200712210050.asp [hereinafter JIN]; Lee Byong-chul, On the Lee Myung-bak Doctrine (posted on August 29, 2007). http://english.ohmynews.com/articleview/article_view.asp?at_code=430971.118 This would seem to imply roughly doubling the size of the North’s economy. 119 JIN, supra note 117.

50

folding it into the Ministry of Foreign Affairs and Trade,

as part of a proposed restructuring of the government.120

So far, Pyongyang has reacted negatively towards Lee by,

among other things, expelling eleven South Korean officials

from the Gaesong economic zone.121 However, it is the still

early days for the MB Doctrine.

IV. Germany as a Model for Reunification?

The reunification of Germany in 1991 had a profound impact

on how Koreans viewed their own situation as a divided

nation.122 Even though other divided nations have existed in

the past and some indeed continue to exist today, Koreans

had most often compared their plight to that of the Germans

120 Kurt Achin, South Korean President-Elect Seeks to Scrap Unification Ministry, Voice ofAmerica News (posted on January 16, 2008) http://www.voanews.com/english/archive/2008-01/2008-01-16-voa10.cfm?CFID=231208460&CFTOKEN=82571062. 121 Bruce Klinger, Mr. Lee comes to Washington (posted April 15, 2008) http://www.heritage.org/Research/AsiaandthePacific/wm1889.cfm. 122 See, e.g., Yang Sung Chul, The Implications of German Unification for Korea: Legal, Political and International Dimensions, in KOREAN POLITICS: STRIVING FOR DEMOCRACY AND UNIFICATION 585-598 (Korean National Commission for UNESCO, ed. 2002).

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in light of the undeniable Cold War aspect of the division

of both countries.123 With the German experience of

relatively rapid, peaceful, democratic, and capitalist

reunification, Germany became a model to follow for many

South Koreans and, at the same time, something to avoid for

the North Korean leadership.

Nevertheless, during the past decade and a half, some of the

negative consequences of the German model have come to

light.124 Many South Koreans now seem less willing than ever

before to simply copy the German example. Indeed, some

South Koreans have become wary of reunification itself –

something that was nearly a universal dream as recently as

the 1980s. Much of the concern is economic. Specifically,

there is a fear of both higher taxes and higher

unemployment. Higher taxes would seem inevitable in order

123 Other previously divided nations include Austria, Vietnam, and Yemen.Today, besides Korea and Ireland, one could certainly list both China/Taiwan and Cyprus as divided nations. For an examination of the German, Vietnamese, and Yemeni experiences and their possible relevance for Korea, see Michael Geistlinger, Nation-Building for Korean Unification, in 3 CONSTITUTIONAL HANDBOOK ON KOREAN UNIFICATION 677-761 (Sung-Hee Jwa, et al, eds. 2002). 124 HAROLD R. KERBO & HERMANN STRASSER, MODERN GERMANY 113-117 (2000) [hereinafter KERBO & STRASSER].

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to upgrade North Korea’s infrastructure as well as to pay

for various social programmes even if there is a “peace

dividend” due to an ending of the Cold War structure on the

Korean Peninsula. Besides higher taxes, higher unemployment

would be likely with the restructuring of North Korea’s

state-owned industries along with the almost certain flood

of migrants from impoverished North Korea to relatively

prosperous South Korea.125

Yet, despite the concerns over the German experience, there

has been relatively little attention paid to other possible

models for Korean reunification. As an alternative to the

German model of speedy yet costly absorption of one side by

the other, I propose that Koreans adopt a slower approach,

which would be similar to that of the ongoing Northern

Ireland Peace Process. The Irish experience is one that has

not been seriously considered before by those seeking a

solution to the division of the Korean Peninsula. Yet, the

125 See, e.g., Young-Sun Lee, The Cost and Financing of Korean Unification, in 4 CONSTITUTIONAL HANDBOOK ON KOREAN UNIFICATION 1125-1163 (Sung-Hee Jwa, et al, eds. 2002).

53

Irish model may well be better suited to the contemporary

Korean situation than the German model. Not only does the

Irish model offer a slower approach to possible

reunification126 that may prove more economically viable,127

it also offers a way of immediately easing tensions on the

peninsula. However, before taking a detail look at the

Irish model, it would be helpful to reflect on the general

concept of divided nations and on the specific role of

constitutional law.

V. Divided nations and nationhood

The focus of my thesis is on divided nations. A key

assumption in my thesis is that there is such a thing as a

“nation” can be distinct from merely a “state” even though

126 Strictly speaking, Irish reunification is not a given under the Good Friday Agreement of 1998. The Good Friday Agreement envisioned NorthernIreland remaining within the United Kingdom at least for the time being,but Irish reunification is one long-term possibility under the framework. The immediate focus, however, has been on improving conditions in Northern Ireland as well as improving ties between Belfastand Dublin on the one hand and London and Dublin on the other hand. 127 A few have argued that delaying reunification might actually cost more in the long run. Be that as it may, the mainstream opinion in Seoul now appears to favour a slow approach to Korean reunification.

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the two terms are sometimes used interchangeably.128

Defining concepts like nation and state is admittedly

fraught with difficulties.129 So, I will start with the

concept of a state simply because the state is somewhat

easier to define.

Even with the rise of trans-national corporations,

international intergovernmental organizations, and

international nongovernmental organizations, the main actors

in public international law are still states.130 Legally, a

128 Sometimes the expression “nation-state” (Nationalstaat) is employed as distinct from a traditional multiethnic empire such as the Austro-Hungarian Empire or a city-state like Ancient Athens. The concept of a nation can have an ethnic connotation. It is often used interchangeably with the concept of a people (Volk). In this sense, a nation might be viewed as culturally being a community sharing the same language and a sense of a shared cultural heritage and politically as being a communitywith a common political development. See, e.g., GERHARD KOEBLER, JURISTISCHES WOERTERBUCH 333, 459 (10th ed. 2001) [hereinafter KOEBLER].See also RAYMOND GUILLIEN ET AL, LEXIQUE DES TERMES JURIDIQUES 232-233, 353 (12th ed. 1999). 129 A nation can be viewed as a construct. Indeed, it was noted more four decades ago that there is “a widely held belief that there is customarily a state for every nation, and that where there is not, a right to national self-determination exists. The fact is that states have made nations far more often than nations have made states.” William. T.R. Fox, Foreword to AMITAI ETZIONI, POLITICAL UNIFICATION: A COMPARATIVE STUDY OF LEADERS AND FORCES vii (1965). 130 Ian Brownlie, Rebirth of Statehood, in ASPECTS OF STATEHOOD AND INSTITUTIONALISM IN CONTEMPORARY EUROPE 5-7 (Malcolm D. Evans, ed. 1997).

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state can be seen as an entity that satisfies a set of

criteria like the four requirements found in the classic

formulation of the Montevideo Convention. These are: 1) a

defined territory, 2) a permanent population, 3) government,

and 4) the capacity to engage in formal relations with other

states.131 There is no requirement for a minimum size in

terms of either territory132 or population.133 Likewise, some

of the territory might be contested.134

A nation, as I use the word here, is something distinct from

a state as that term is understood in international law.

Authoritative sources of international law typically do not

131 Montevideo (Inter-American) Convention on the Rights and Duties of States, 26 December 1933, arts. 1 & 3; 49 stat. 3091; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES sec. 201 (1987). 132 The Pacific Island state of Nauru is the smallest member of the UN General Assembly when it comes to land area. It is about one-tenth the size of the District of Columbia. US Central Intelligence Agency (CIA), The World Factbook: Nauru (updated on March 20, 2008) https://www.cia.gov/library/publications/the-world-factbook/geos/nr.html.133 Tuvalu, another tiny Pacific Island state, has only a few thousand citizens. CIA, The World Factbook: Tuvalu (updated on March 20, 2008) https://www.cia.gov/library/publications/the-world-factbook/geos/tv.html134 Over the years, the International Court of Justice (ICJ) has heard a number of boundary disputes.

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define what constitutes a nation.135 Nevertheless, the

expression is sometimes encountered in the realm of

international law such as in the name “United Nations”

(UN).136 Yet, the UN Charter itself actually refers to the

UN’s members as states rather than as nations.137

For purposes of this thesis, a nation could be simply and

pragmatically defined as being a people with some sense of a

common history and certain shared traditions. They might

also be united in other aspects such as language or

religion. As will be discussed in Chapter 4, shared

traditions can include political/legal ones. Briefly, a

constitution can shape a nation’s identity resulting in a

form of civic nationalism or constitutional patriotism.

135 In the municipal law of the United States, the term “nation” has often been used to describe Indian/Native American tribes and bands. Montoya v. U.S., 180 U.S. 261, 265 (1901). 136 There is no requirement that a state must belong to the UN although these days virtually all states are represented in the UN General Assembly.137 UN Charter, arts. 3 & 4. Nevertheless, the Preamble to the UN Charter does begin with the famous line “We the peoples of the United Nations….”

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Typically, there is a territorial element to a nation. Yet,

the people of a nation might mostly live in one state or

they might be spread across two or more states. Indeed, a

nation might have a historic link with a certain territory

yet not have actual control over that territory. For

example, after World War II Germany lost significant

territory east of the Oder-Neisse line to Poland and the

Soviet Union.138

In some cases, the nation and the state might be identical

or at least nearly so. Iceland would be an example.139 Under

international law, Iceland is a clearly state. Iceland

meets all four criteria of the Montevideo Convention.

Being an island nation, its land boundaries are well-

defined. Iceland has a permanent population as well as a

government. And, Iceland certainly has the capacity to

engage in formal relations with other states. In fact,

Iceland is a member of the UN and a number of other 138 See, e.g., DAVID CHILDS, THE GDR: MOSCOW’S GERMANY ALLY 11 (1983) [hereinafter CHILDS]. Incidentally, the Soviet territory in question isnow Russian Kaliningrad. 139 See generally, THORSTEN HENN & HELGI GUTHMUNDSSON, MAGIC OF ICELAND (2003).

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international bodies. At the same time, there is also an

Icelandic nation with a distinct cultural, linguistic, and

ethnic identity. Iceland happens to be relatively

homogenous. Most of the population is Icelandic and

relatively few Icelanders live outside of the country. So,

Iceland can truly be called a nation-state.

By contrast, the Arabs often refer to themselves as being

one nation.140 Arabs share a common written language in

Arabic141 and a number of cultural traits.142 Most Arabs also

follow some form of the same religion, Islam.143 Yet, there

are multiple Arab states. So, the concept of the Arab nation

and the ideal of Arab unity transcend the various Arab

140 PETER MANSFIELD, THE ARABS passim (3rd ed. 1992). See also NAZIH N. AYUBI, OVER-STATING THE ARAB STATE: POLITICS AND SOCIETY IN THE MIDDLE EAST (1995); ADDA B. BOZEMAN, THE FUTURE OF LAW IN A MULTICULTURAL WORLD 50-85 (1971). 141 There are various dialects of spoken Arabic, but written Arabic is standardized. JOHN MACE, BEGINNER’S ARABIC SCRIPT 2 (2003). 142 Admittedly, besides the differences in dialects, there are some regional differences in customs and traditions between Arabs in the Arabian/Persian Gulf region, the Levant, and North Africa along with differences between countries within the same region plus the usual differences between individuals based on personalities. MARGARET K. NYDELL, UNDERSTANDING ARABS: A GUIDE FOR WESTENERS 127-166 (rev. ed. 1996). 143 Some Arabs belong to various Christian denominations. Moreover, evenamong Arab Muslims there are sectarian divisions. Id.

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states. This Arab nation could be roughly identified in

terms of territory at least with the current membership of

the League of Arab States.144 The pan-Arab identity is also

reflected in the official names of a few Arab countries.

For instance, Egypt is known officially as the Arab Republic

of Egypt.

Besides names, the constitutions of Arab states might refer

to the concept of an Arab nation. A good example can be

found in the Constitution of the United Arab Emirates (UAE):

The Union is a part of the great Arab Nation, to which it is bound by the ties of religion, language, history and common destiny. The people of the Union are one people, and one part of the Arab Nation.145

The people of the UAE are thus presented as being at once

Emirati and Arab.

144 League of Arab States, Member States (last visited July 3, 2007) http://www.arableagueonline.org/las/index_en.jsp. 145 UAE Const., art. 6.

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Other nations might not be formally recognized by the

international community. There are numerous ethnic groups

around the world that could be viewed as being nations. One

example would be that of the Romany (Gypsies) in Europe.146

Another example would be that of the Kurds in the Middle

East.147 The Kurds live mostly in parts of Turkey, Iraq, and

Iran. Some ethnic groups argue that they should have the

right to

self-determination. Certainly, some Kurds want their own

country in the form of Kurdistan. The people of Montenegro

recently achieved such an independent homeland when they

voted to leave Serbia. Montenegro is now a member of the UN

General Assembly.148

The rise of ethno-nationalism in Europe during the past

couple of decades has generated some academic reflection on

146 Joseph R. Rudolph, Jr., Central Europe: The Romany, a Stateless Minority in a World of States, in ENCYCLOPEDIA OF MODERN ETHNIC CONFLICTS 37-45 (Joseph R. Rudolph, Jr., ed., 2003). 147 Michael M. Gunter, Middle East: The Kurds Struggle for “Kurdistan,” in ENCYCLOPEDIA OF MODERN ETHNIC CONFLICTS 151-159 (Joseph R. Rudolph, Jr.,ed., 2003).148 UN, Growth in United Nations Membership, 1945-present (last visited July 3, 2007) http://www.un.org/Overview/growth.htm.

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the relationship between nationality, nationalism, and

ethnicity.149 The reality is that relatively few states

today are essentially ethnically homogenous. Even if

ethnically homogenous nations were seen as being desirable,

forming them would be unrealistic in many cases.150

Federalism and other forms of local autonomy offer

alternatives.151

Let’s now turn to Germany. Before German reunification in

1990, there were two German states viz. East Germany and

West Germany. The German nation at the time could be

thought of as encompassing those two states.152 However, that

was a matter of some debate. West Germany originally claimed

149 See generally Neil MacCormick, What Place for Nationalism in the Modern World? in, IN SEARCH OF NEW CONSTITUTIONS 79-96 (Hume Papers on Public Policy, Vol.2, No. 1, Spring 1994). 150 Break-ups can be tragic whether they be along ethnic or religious grounds. For instance, the 1947 partition of the Indian subcontinent into predominately Hindu yet secular India and officially Muslim Pakistan resulted in massive communal violence. Pakistan itself was then split in 1971 when East Pakistan became independent Bangladesh. 151 Yash Ghai, Ethnicity and Autonomy: A Framework for Analysis, in AUTONOMY AND ETHNICITY: NEGOTIATING COMPETING CLAIMS IN MULTI-ETHNIC STATES 1-26 (Yash Ghai, ed., 2000). 152 Inter-German relations were often thought of in Bonn as having a special character and thus not being truly international because there were conducted within the German nation. See, e.g., OTTO MODEL ET AL, STAASTSBUERGER-TASCHENBUCH 23 (30th ed. 2000).

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to be the sole legitimate government of Germany. This claim

was given some diplomatic teeth with the Hallstein Doctrine

(Hallstein-Doktrin) whereby West Germany would not maintain

formal ties relations with states that had recognized East

Germany with the major exception of the Soviet Union.153

This aspect of West German foreign policy was maintained

until the late 1960s.154

In East Germany, there was a “two states theory” (Zwei-

Staaten-Theorie) and then later a “two nations theory” (Zwei-

Nationen-Theorie).155 The original two states theory maintained

that there were two German states on parts of the territory

of the former German Reich.156 The theory was announced by

153 The Soviet exception was necessary because the Soviet Union was one of the four World War II Allies that continued exercise a degree of control over Germany during the post-war period. Germany only regained full sovereignty in 1991. By that time, the country had reunified. 154 Damien P. Horigan, The Hallstein Doctrine: A “Living Fossil” of International Law? 30 KOREAN J. COMP. L. 93, 99-102 (2002). 155 Ulrich Pfeil, Die DDR und der Westen 1949-1989: Eine Einfuehrung, in DIE DDR UNDDER WESTERN: TRANSNATIONALE BEZIEHUNGEN 1949-1989 7-19 (Ulrich Pfeil, ed., 2001). See also Michael Geistlinger, International Law Perspectives on Division and Reunification, in 3 CONSTITUTIONAL HANDBOOK ON KOREAN UNIFICIATION809-844 (Sung-Hee Jwa et al, eds., 2002); KOEBLER, supra note 128, at 583-584. 156 It should be noted that a significant amount of former Reich territory came under either Polish or Russian control after World War II. THE GERMAN QUESTION 297-320 (Walther Hubatsch et al, trans. Salvator Attanasio, 1967) [hereinafter HUBATSCH].

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the Soviet leaders Nikolai Bulganin and Nikita Khrushchev in

July 1955 in East Germany’s capital of East Berlin.157 The

Soviet Union’s official position at that time was that it

would support the reunification of Germany only if East

Germany’s “socialist achievements” could be safeguarded.

Earlier that year the Warsaw Pact was established with East

Germany as a member.158 Incidentally, East Germany was

already a member of the Soviet-led Council for Mutual

Economic Assistance (known as either CMEA or Comecon).159

In 1967, the then East German leader, Walter Ulbricht,

declared German reunification could only be achieved through

the efforts of the “working class in both German states.”160

The East German Constitution changed over time in this

regard. The original 1949 Constitution referred to Germany

157 HERMANN WEBER, GESCHICHTE DER DDR 177 (rev. ed. 1999) [hereinafter WEBER]. See also CHILDS, supra note 138. 158 Treaty of Friendship, Cooperation, and Mutual Assistance, 14 May 1955. See also TREATIES AND ALLIANCES OF THE WORLD 235-240 (Henry W. Degenhardt, ed., 4th ed. 1986) [hereinafter DEGENHARDT]. 159 The GDR entered the CMEA in 1950. DEGENHARDT, supra note 158, at 240;WEBER, supra note 157, at 147. 160 WILLOWEIT, supra note 90, at 413; CREIFELDS RECHTSWOERTERBUCH 1629-1630 (Klaus Weber, ed., 16th ed., 2000).

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as being an “indivisible democratic republic consisting of

the German Laender.”161 When a new Constitution was

proclaimed in 1968, matters had changed slightly. The GDR

was described as being a “Socialist state of the German

nation.”162 No mention was made of the Laender. In fact, by

this time, the Laender in the East had already been

eliminated. Local government consisted of mere districts

(Bezirke). The GDR had become a more centralized.163

The two nations theory was officially promoted in the later

years of the GDR. By 1972, another East German leader,

Erich Honecker, referred to West Germany as being an

“imperialist foreign country.”164 The two nations theory

maintained that the GDR and the FRG were actually two

distinct nations. One was Socialist and the other was

Capitalist. According to the two nations theory, with

fundamentally different systems, there was no longer a 161 GDR Const. of 1949, art. 1. 162 GDR Const. of 1968, art. 1. 163 CHILDS, supra note 138, at 119. HUBATSCH, supra note 156-, at 155. TheLaender in the East were revived shortly before reunification. The Eastern Laender are collectively called the new federal states (neue Bundeslaender) by many Germans. KERBO & STRASSER, supra note 124, at 113. 164 WILLOWEIT, supra note 90, at 413.

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single German nation as such. This theory was meant to

weaken the case for German reunification. It should be

viewed together with East Berlin’s policy of delimitation

(Abgrenzung), which was intended to limit the influence of

the West in view of the increasing interaction between

ordinary East Germans and West Germans in the wake of Bonn’s

Eastern policy (Ostpolitik).165

The two nations theory would then become enshrined in East

Germany’s constitution.

In 1974, the Constitution was substantially amended. By this

time, the GDR was declared to be a “Socialist state of the

workers and peasants.” No mention was made of the German

nation per se.166

Be that as it may, during the Cold War there were millions

of ethnic Germans who did not belong to either state.

165 WEBER, supra note 157, at 290-296; CHILDS, supra note 138, at 88-92, 123-125. For a comparison of some differences between Western German policy towards East Germany and South Korean policy towards North Korea,see Park Sung-jo, ‘Sunshine’ in Germany vs. ‘Sunshine’ on the Korean Peninsula, 14 KOREA FOCUS 25-27 (Winter 2006). 166 GDR Const., art. 1 (1974 version).

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Austria is a case in point.167 It was and still is a German

speaking country. Should Austrians thus be considered part

of the German nation? In 1938, Germany and Austria were

united with the Anschluss (annexation), but the consequences

would soon prove to be disastrous.168

Of course, there are other ethnic Germans. For instance,

the majority of Swiss are ethnic Germans who speak German at

home. German is one of the country’s official languages.169

Yet, Switzerland remained officially neutral during World

War II. Should they be considered to be part of the German

nation? Likewise, the tiny principality of Liechtenstein,

which was also neutral during the war, is an independent

state yet its people are virtually all ethnic Germans.170

Are they too part of the German nation? Moreover, ethnic 167 FEDERAL PRESS SERVICE, AUSTRTIA: FACTS AND FIGURES 11 (1987). 168 HAGEN SCHULZE, GERMANY: A NEW HISTORY 261 (Deborah Lucas Schneider, trans., 1998) [hereinafter SCHULZE]. In 1954, the FRG declared that it considered the Anschluss as abrogated. HUBATSCH, supra note 156, at 81. 169 Wolf Linder, Political Culture, in HANDBOOK OF SWISS POLITICS 13-31 (Derek Lutterbeck & Stephan Lake, trans., 2004); See also Ulrich Kloeti, The Government, id., at 147-171, 154; Alexander H. Trechsel, Popular Votes, id.,at 479-507, 488-489. 170 CIA, World Fact Book: Liechtenstein (updated on June 19, 2007) https://www.cia.gov/library/publications/the-world-factbook/geos/ls.html.

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German communities can be found as minorities in certain

other parts of Europe.171

This concept of a nation is certainly political, but it can

have legal implications as well. Can two (or even more)

states from the same nation merge? Certainly, that is what

happened in Germany. There are additional issues. In

either unifying or reunifying, do the previous entities

loose their distinctive characters? Could an entity then

later leave the union? Does someone who is a member of the

nation but not of the state enjoy any legal benefits?

The relationship between nationality and ethnicity is one of

the major concerns of our time. In the past, the two terms

were often used interchangeably, but even previously that

was not entirely satisfactory in view of the existence of

countries like the United States, Canada, Australia, and New

Zealand that are predominately immigrant societies.

Arguably, a clear distinction between ethnicity and

171 For instance, there is a German ethnic minority in Denmark as well asa Danish ethnic minority in Germany. HUBATSCH, supra note 156, at 81.

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nationality should be made now in an era of globalization.

Societies that were once more or less homogeneous are

becoming increasingly multiethnic in nature. For example,

Germany in the early 20th century was a relatively

homogeneous place.172 As was noted earlier, Germany now has

a large number of people from other countries like Turkey,

Greece, and Italy.

Yet, in much of Asia there is still a tendency to view

nationality and ethnicity as being closely linked.173 Korea

is essentially homogeneous.174 Virtually all citizens of

North Korea and South Korea are ethnic Koreans.175

Traditionally, the only notable minority group was a small

172 Of course, in the past there were minorities like the Sorbs. The Sorbs, a Slavic ethnic group, are found mostly in what used to be East Germany. CHILDS, supra note 138, at 121. 173 Singapore is an obvious exception. The country is quite cosmopolitan.See, e.g. WALEED HAIDER MALIK, JUDICIARY-LED REFORMS IN SINGAPORE: FRAMEWORK, STRAEGIES, AND LESSONS 5-6 (2007) [hereinafter MALIK]. 174 CIA, The World Factbook: Korea, South (updated on March 20, 2008) https://www.cia.gov/library/publications/the-world-factbook/geos/ks.html; CIA: The World Factbook: Korea, North (updated on March 20, 2008) https://www.cia.gov/library/publications/the-world-factbook/geos/kn.html175 Only a relatively small number of people of non-Korean extraction have been granted South Korean or North Korean citizenship.

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ethnic Chinese community in South Korea.176 While South

Korea now has its share of foreign migrant workers and

expatriates, very few of those people ever become or even

wish to become South Korean citizens. North Korea appears

to have hardly any long term resident foreigners.

All Koreans living in the two Koreas speak the same

language.177 The written language is essentially the same

between North and South Korea although there are some

significant differences in usage.178 North and South Koreans

also share certain cultural traditions. Koreans in both

Koreas appear to think of themselves as being the same

people. Hence, we can speak of two Korean states, but one

Korean nation.

176 There are only a few thousand Overseas Chinese left in South Korea. Due partly to discrimination, many of the Chinese have left South Korea for either Taiwan or the United States. 177 While there are several dialects of Korean, these dialects are, for the most part, mutually intelligible. 178 North Korean documents normally use Hangeul, the native phonetic script, exclusively. By contrast, South Koreans sometimes mix Hangeul with traditional Chinese characters (Hanja in Korean) and even Latin letters. In both Koreas, the familiar Hindu-Arabic numerals are typically used for writing numbers although occasionally Chinese numbersare found in South Korea. As for vocabulary, North Korea has coined many new words that would be unfamiliar to the average South Korean. Likewise, South Koreans have borrowed certain words from English and other languages that would confuse the average North Korean.

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Of course, there are also Overseas Koreans. Several million

people of Korean ancestry live in the United States,

China,179 Japan, the Russian Federation, Uzbekistan, Canada,

and other countries. These Overseas Koreans are largely

citizens of the countries in which there were born, but they

could still be viewed as being part of the Korean nation.

The common South Korean thinking is that such people are of

the same blood. Thus, they are “less foreign” than others at

an emotional level. At the same time, many contemporary

South Koreans (and presumably most contemporary North

Koreans as well) initially would feel uncomfortable in a

truly multicultural society were Korea ever to become one

along the lines of many European countries.

The important point that arises from this discussion,

however, is this. Two or more states might belong to the

same nation. These countries might be recognized by the

international community as being formally separate states

179 There is even a special enclave in China called the Yanbian Korean Autonomous Prefecture, which is a part of Jilin Province.

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under public international law. Yet, we can still speak of

divided nations. Moreover, many of the citizens of states

with a common national identity might wish to unite or

reunite into a single governmental entity under the

framework of a shared constitution. Such unification or

reunification of divided nations should thus be viewed as

being something distinct from ordinary regional integration.

VI. Constitutional law

Now that we have seen that divided nations are special, we

can examine more closely the role that constitutions play in

divided nations and how constitutional law might facilitate

national reunification. The constitutions of divided nations

can explicitly acknowledge national division, but that is

not always the case. For example, the Constitution of the

Republic of Cyprus dates from independence from the UK in

1960, a time when the island was still unified. It has not

been substantially amended since. So, the Cypriot

Constitution actually makes no mention of the current

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situation where a rival entity controls the northern part of

the island.180 However, the Cypriot situation is an unusual

one.

If national division occurred before the writing of the

constitution, then it is likely to be mentioned somehow in

the text. For instance, the Preamble of old West German

version of the German Basic Law (Grundgesetz)181 indirectly

refers to the division of Germany as follows:

The German PeopleIn the Laender of Baden, Bavaria, Bremen, Hamburg, Hesse, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Schlweswig-Holstein, Wuerttemberg-Baden, and Wuerttemberg-Hohenzollern, Conscious of their responsibility before God and men,Animated by the resolve to preserve their national and political unity and to serve the peace of the world as an equal partner in a united Europe,Desiring to give a new order to political life for a transitional period,

180 Incidentally, the Turkish Republic of Northern Cyprus (TRNC), which is not recognized by the international community, does have its own constitution. It refers to the link of Turkish Cypriots to the “TurkishNation.” TRNC Const., Preamble. An English version can be found at: http://www.cm.gov.nc.tr/servet/cons/consin.htm. 181 The term “Basic Law” was used rather than “Constitution” to signify the supposedly interim nature of the law. SCHULZE, supra note 168, at 296-297. See also ANKE FRECKMANN & THOMAS WEGERICH, THE GERMAN LEGAL SYSTEM 53-54 (1999).

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Have enacted, by virtue of their constituent power, this Basic Law for the Federal Republic of Germany, They have also acted on behalf of those Germans to whomparticipation was denied.The entire German people are called upon to achieve in free self-determination the unity and freedom of Germany.182

Elsewhere the Basic Law envisioned that a new constitution

would be drafted once Germany was reunified.183 By contrast,

however, the former East German Constitution made no

explicit mention of the division of Germany.

The lesson from this discussion is that the constitutions of

states that make up divided nations vary in their approach

towards describing national division. Such constitutions

also differ in how or even if reunification should be

realized. Nevertheless, there is typically a basis in

constitutional law for national reunification.

182 Preamble, Basic Law of the Federal Republic of Germany (1949 version). 183 Basic Law, art. 146. Yet, when German reunification finally came about the process was achieved by means of a different provision viz., Article 23, which allowed for the simple territorial expansion of the federal republic and thus speedy reunification. KERBO & STRASSER, supra note 124, at 113.

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VII. Current constitutional provisions from Korea

Let us turn, now, from the constitutional dimensions of the

German experience to the current constitutional situation on

the Korean peninsula. Both Koreas acknowledge the division

of Korea. South Korea mentions reunification four times in

the main text of its constitution (not including the

Preamble). Article 4 of the South Korean Constitution

mandates a policy for reunification:

The Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the principles of freedom and democracy.184

Elsewhere, in describing the duties of the President, the

South Korean Constitution twice refers to reunification:

The President shall have the duty to pursue sincerely the peaceful unification of the homeland.185

The President, at the time of his inauguration, shall take the following oath: “I do solemnly swear before

184 South Korean Const., art. 4. 185 South Korean Const, art. 66(3).

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the people that I will faithfully execute the duties ofthe President by observing the Constitution, defending the State, pursuing the peaceful unification of the homeland, promoting the freedom and welfare of the people and endeavouring to develop national culture.”186

Finally, reference is made to an advisory council dealing

with reunification as a part of the State Council:

(1) An Advisory Council on Democratic and Peaceful Unification may be established to advise the President on the formulation of peaceful unificationpolicy.

(2) The organization, scope of function and other necessary matters pertaining to the Advisory Councilon Democratic and Peaceful Unification shall be determined by law.187

Meanwhile, the North Korean Constitution declares:

The Democratic People’s Republic of Korea shall strive to achieve the complete victory of socialism in the northern half of Korea by strengthening the people’s power and vigorously performing the three revolutions -the ideological, cultural and technical - and reunify the country on the principle of independence, peaceful reunification and great national unity.188

186 South Korean Const., art. 69. 187 South Korean Const. art. 92. 188 North Korean Const., art. 9.

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It is worth bearing in mind that although the constitutions

of the two Koreas differ in their visions of reunification,

both constitutions do at least share reunification as a

common goal. Hence, there is some legal basis to work

towards reconciliation and ultimately perhaps reunification

under either constitution. I will now turn to Ireland. As

we shall see, the Irish approach is rather different from

what was done in Germany.

VIII. The Irish approach

With this background to the German and Korean experiences in

mind, we can now turn to the Irish approach. The Good Friday

Agreement, among other things, provides a framework easing

tensions in Northern Ireland and improving ties between both

parts of Ireland. It can also serve as a model for the two

Koreas. The Irish approach is essentially one based on

democracy, peace, power-sharing, cooperation, and gradual

change. As such, it is a model potentially better suited to

the Korean situation than the German model.

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Northern Ireland remains a province of the UK. However,

certain powers were devolved to Belfast by the government in

London with the Good Friday Agreement.189 In a sense, the

Good Friday Agreement set up a new constitutional structure

for Northern Ireland within the UK at the end of the 20th

century. There are certain similarities to the devolution

of powers to Scotland and Wales.190 This general trend

toward devolution in the UK facilitated change in Northern

Ireland during the 1990s. However, unlike Scotland and

Wales, Northern Ireland already had significant previous

experience with devolution.191 Moreover, each case of

189 Traditionally, the UK has been viewed as a unitary state. Hence, power is being devolved from the centre. With devolution, the UK seems to be gradually moving towards an essentially federal system. However, as this chapter is being written, London had resumed direct rule over Northern Ireland on two different occasions. 190 Alan J. Ward, Devolution: Labour’s Strange Constitutional ‘Design’, in THE CHANGINGCONSTITUTION 111-136 (Jeffrey Jowell & Dawn Oliver, eds., 4th ed. 2000).See also DAWN OLIVER, CONSTITUTIONAL REFORM IN THE UNITED KINGDOM (2003).191 Ultimately, the two previous attempts at devolution in Northern Ireland were failures. Brigid Hadfield, Devolution: Some Key Issues and a Northern Ireland Searchlight, in CONSTITUTIONAL REFORM IN THE UNITED KINGDOM: PRATICE AND PRINCIPLES 51-57(Jack Beatson et al, eds. 1998). See also Christopher McCrudden, Northern Ireland and the British Constitution, in THE CHANING CONSTITUTION 323-375 (Jeffrey Jowell & Dawn Oliver, eds., 3rd ed. 1994).

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devolution is different. For example, Scotland currently

enjoys considerably more autonomy than Wales.192

The UK itself is a state which is famous for lacking a

written constitution at least in the sense of a single

document serving as the UK’s Constitution.193 Yet, the very

name “United Kingdom of Great Britain and Northern Ireland”

denotes some connection with Northern Ireland just as the

previous name, the “United Kingdom of Great Britain and

Ireland,” at the time, denoted a connection with the entire

island of Ireland.

192 No doubt that was partly a reaction to the greater degree of secessionist sentiment existing in Scotland as compared to Wales. Also,long before devolution, Scotland already had a separate legal system based partly on civil law whereas England and Wales share the same legalsystem based on the common law. Kenneth G.C. Reid, The Idea of Mixed Legal Systems, 78 Tul. L. Rev. 5 (2003). 193 Actually, the UK can be said to have a constitution with both writtenand unwritten parts. LEONARD JASON-LLOYD, THE LEGAL FRAMEWORK OF THE CONSTITUTION 1-8 (1997). Moreover, the British constitution can be seenas being evolutionary rather than revolutionary in nature. It is also more political and thus less legal in nature. In this sense, the British constitutional experience differs from that of many other countries. NEIL MACCORMICK, QUESTIONING SOVEREIGNTY: LAW, STATE, AND NATION IN THE EUROPEAN COMMONWEALTH 49-62 (1999).

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As for the republic, the Irish Constitution directly

mentions division and the possibility of reunification in

both parts of the current version of Article 3:

It is the firm will of the Irish nation, in harmony andfriendship to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the lawsenacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation ofthis Constitution.194

Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authoritiesfor stated purposes and may exercise powers and functions in respectof all or any part of the island.195

These provisions were one of the results of the Good Friday

Agreement. Article 3.1 stresses that Irish reunification can

only be legally realized on the basis of peace, democracy,

194 Const. of Ireland, art. 3.1. 195 Const. of Ireland, art. 3.2.

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and the due recognition of the multicultural or at least

bicultural nature of the island. Hence, the use of force

has been ruled out. Moreover, the consent of the peoples in

each part of the island is required.

This philosophy could be applied to Korea. Peace and

democracy should serve as the basis for any Korean

reunification. Even some recognition of the cultural

differences between North and South might be in order

despite the fact that many Koreans downplay such differences

in order to emphasize the common heritage of all Koreans.

Article 3.2 facilitates the cross-border bodies envisioned

under the Good Friday Agreement. These bodies are meant to

increase cooperation between Dublin and Belfast in various

fields of public policy like waterways, food safety, EU

matters, and so on. As such, the cross-border bodies can be

viewed as being confidence-building measures with a

practical focus.

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Although some tentative steps towards cooperation between

Seoul and Pyongyang have taken place, the Korean process is

certainly not as far along as the Irish one.196 Furthermore,

the constitutional basis for such inter-Korean cooperation

is not entirely clear.197 Ideally, both Koreas should amend

their constitutions to provide a solid framework for inter-

Korean bodies. There should also be a formal end to the

Korea War in the form of a peace treaty to replace the

existing armistice agreement.198

Another provision in the Irish Constitution that was amended

as part of the Good Friday Agreement is Article 2, which

reads as follows:

196 There have been some results like reconnecting rail lines and roads, the visits of South Korean tourists to both the Diamond Mountains and the city of Gaesong in North Korea, and South Korean investment in an industrial complex being developed in Gaesong. FIRST TRAINS, supra note 7; LIM, supra note 106. See also HYUNDAI ASAN, GAESONG GWANGWANG [KAESONG TOUR] (undated brochure). 197 There is at least a statutory basis in South Korean law in the form of the Inter-Korean Exchange and Cooperation Act, which was amended in 2005. North Korea now has similar legislation. 198 The two Koreas along with China and the United States (acting on behalf of the United Nations) have been observing an armistice agreementsince1953. See generally, LYOU, supra note 40.

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It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation [sic] cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.199

This provision redefines Irish citizenship. It envisions

that persons residing in Northern Ireland can claim Irish

citizenship. Something similar could be adopted in Korea.

Koreans from both parts of the peninsula should be able to

easily become citizens of either republic, if they wish to

do so. Article 2 also makes a somewhat vague reference to

the Irish Diaspora without providing a specific grant of

citizenship. There is a Korean Diaspora as well. Both

Koreas have tried to woo Overseas Koreans. So, a reference

to Overseas Koreans might be in order.

IX. Conclusion

199 Const. of Ireland, art. 2.

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Koreans were never, and today still are not, unique in being

separated. In the past, Germany was often looked to by

Koreans as a case of a similarly divided nation. Germany’s

surprising reunification was initially seen as a model to be

followed at least in South Korea. However, in more recent

years, the need for an alternative model for Korean

reunification has become apparent.

Ireland, in the form of the Good Friday Agreement,

represents an alternative model. For Koreans, the Irish

model could be adopted with certain modifications to make it

suitable to local conditions on the peninsula.200

Although there have admittedly been difficulties in making

the Good Friday Agreement work in Northern Ireland, it would

be wrong to declare it a failure. In particular, the

200 For example, one of the necessary modifications for the Korean case would be some form of diplomatic cross-recognition. Recognition has simply never been a problem in the Irish case because Dublin and London have maintained relations ever since the creation of the Irish Free State. In contrast, Seoul and Pyongyang have never had formal diplomaticties. Indeed, there is still not even a final peace treaty for Korea. For a legal study of the Korean armistice agreement and related issues, see LYOU, supra note 40.

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general reduction in the level of political violence during

the years since the agreement was signed and the recent

progress on decommissioning of weapons held by

paramilitaries together indicate hope for Northern Ireland.

Even more encouraging is the recent return of devolved

government to the province. Hence, the Irish model is still

viable for application elsewhere including Korea.

In the following chapter, I will examine the efforts made at

promoting peace in Northern Ireland. In particular, I will

look at constitutional and other changes made in both the UK

and the republic to facilitate peace in the province. These

changes can serve as a model for other conflict areas in

general and for divided nations in particular.

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Chapter 3: Promoting Peace in Northern Ireland

I. Introduction

In Chapter 2, I suggested that the Irish experience might

hold important lessons for the process of reunification on

the Korean Peninsula. In this chapter, I focus on the

Northern Ireland Peace Process itself. In particular, I

analyse the amending of the Irish Constitution along with

constitutional and other legal changes in the UK as a part

of the peace process. A better understanding of the Peace

Process will enable us, in Chapter 4, to take a step back

and consider, more generally, the role that constitutions

play in the process of reintegration and reunification.

II. Historical background

Arguably, the ultimate roots of the present conflict between

the two main communities in Northern Ireland201 could be

201 Besides the Catholics and Protestants there is a tiny Jewish community in Ireland. PAUL BEW ET AL, NORTHERN IRELAND 1921/2001: POLITICAL FORCES AND SOCIAL CLASSES 266 (2002) [hereinafter BEW].

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traced all the way back to the Anglo-Norman invasions202 of

certain parts of Ireland (Hibernia)203 by Strongbow, who is

also known as Richard FitzGilbert, the Earl of Pembroke, in

1170, and by King Henry II of England during 1171-1172.204

A stated purpose of the invasion was the need to reform the

allegedly corrupt practices of the Irish church. In those

early days, both England and Ireland were Roman Catholic

countries. Papal approval was required for such an

invasion. It is traditionally thought to have been given

although some scholars have doubted the authenticity of the

202 Of course, the Normans were, in various respects, different from the English that we think of today. For instance, the Normans spoke a form of French. ROBERT KEE, THE GREEN FLAG: A HISTORY OF IRISH NATIONALISM 9(1972) [hereinafter KEE]. Nevertheless, much of English culture has Norman roots. Certainly, the development of English common law was influenced by Norman traditions. PAUL BRAND, THE MAKING OF THE COMMON LAW 77-102 (1992). For instance, the Norman French dialect formed the basis for Law French, which was once the language of English law. BLACK’S LAW DICTIONARY 885 (6th ed. 1990). 203 At first, the Norman presence was mostly in Dublin. KEE, supra note 203, at 10.204 A good overall history of Ireland is MIKE CRONIN, A HISTORY OF IRELAND (2001). For a history of modern Northern Ireland, see BEW, supra note 202. Another useful source is the chronology in JOHN MORISON & STEPHEN LIVINGSTONE, RESHAPING PUBLIC POWER: NORTHERN IRELAND AND THE BRITISH CONSITUTIONAL CRISIS 229-237 (1995) [hereinafter MORISON & LIVINGSTONE]. See also RICHARD ROSE, NORTHERN IRELAND: A TIME FOR CHANGE (1976) [hereinafter ROSE].

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Papal Bull. The alleged approval for the invasion is

sometimes called the “donation” of Ireland.205

English colonial rule over Ireland was later consolidated

under Queen Elizabeth I.206 By this time, the English and

Irish were clearly divided religiously in the wake of the

Protestant Reformation. The English had generally embraced

Protestantism. The officially established church in England

was, and still is, the Church of England, which is today a

part of the Anglican/Episcopal Communion.207 By contrast,

the Irish generally resisted Protestantism and remained

Roman Catholics even though doing so was generally against

their economic interests at the time. Hence, there has long

been a sectarian dimension to Irish politics. By contrast,

205 KEE, supra note 203, at 10. The Pope was Adrian IV (r. 1154-1159) who was also known as Hadrian IV. His lay name was Nicholas Breakspear. He was the only English-born Pope in history. 206 By this time, all of Ireland had become an English common law jurisdiction. ALFRED GASTON DONALDSON, SOME COMPARATIVE ASPECTS OF IRISHLAW 3-8, 37-42 (Duke University Commonwealth-Studies Centre, PublicationNo. 3, 1957). 207 It should be noted that the Church of England is a reformed church inthe sense that it does not acknowledge papal authority. However, in terms of liturgy and organization, the Church of England is closer to the Roman Catholic Church than it is to certain Protestant denominations. Of course, some English are not Anglicans being insteadMethodists or Baptists, etc.

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language is less of a factor. Today most people in both

parts of Ireland, regardless of ethnicity, speak English at

home.208

However, specifically within the context of what is now

Northern Ireland, the arrival of large numbers of mostly

Lowland Scottish immigrants in the northern counties of

Ireland with the establishment in 1605 of a settlement

called the Ulster Plantation is most important.209 Those

predominately Protestant, often Presbyterian,210 immigrants

and their descendants formed the basis for the distinct

208 The Irish language is a form of Gaelic. It is related to the Goidelic Celtic languages of Scottish (Scottish Gaelic/Highland Gaelic),Welsh, and Manx. Irish is one of two official languages in the Republic of Ireland. Technically, Irish is the “national language” and “first official language” while English is the “second official language.” CONST. OF IRELAND, art. 8. The Irish version of the Constitution prevails if there is a conflict in meaning. CONST. OF IRELAND, art. 25. A reported decision where the Irish text was used to resolve a constitutional ambiguity is Quinn’s Supermarket v. Attorney General, [1972] I.R. 1. However, in actual practice, the government in Dublin functions mostly in English. Likewise, the government in Belfastalso functions primarily in English although there is an Ulster-Scots dialect. This is a dialect of Scots, which should not be confused with Gaelic Scottish. Scots is associated with the Lowlands of Scotland. It is actually a West Germanic language. Hence, Scots is more closely related to English than Scottish. 209 It should be noted that Scottish immigration to Ireland began roughlytwo centuries earlier. 210 By the 1600s the Presbyterian Church had already become the main denomination in Scotland.

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Ulster-Scots community.211 Religiously, earlier English

immigrants to Ireland and their descendants who became known

as the Anglo-Irish were largely either Anglicans212 or Roman

Catholics.213

The entire island of Ireland had thus been under

English/British control for centuries. The political entity

for much of that time was the Lordship/Kingdom of Ireland,

but the monarch was actually the English King.214 Then, the

Act of Union of 1800 formed the “United Kingdom of Great

Britain and Ireland.”215 The whole island was thus an

integral part of the UK for over a century. However, it was

never a happy marriage. During that time there were

numerous advocates for various political alternatives i.e.

211 These people are sometimes called “Scots-Irish” in North America. In Europe, however, the term “Ulster-Scots” is much more common. So, here I will follow the Europeanpractice and use Ulster-Scots. 212 The established church for all Ireland used to be the Church of Ireland. The Church of Ireland has since been disestablished. Today it is part of the Anglican Communion. The Church of Ireland is a separate body from the Church of England. Like other major denominations in Ireland it operates on a pan-island basis. 213 Regardless of religion, the Anglo-Irish generally managed to integrate more into the Irish mainstream than did the Ulster-Scots. 214 For a brief overview of Irish legal history, see BRIAN DOOLAN, PRINCIPLES OF IRISH LAW 1-7 (5th ed. 1999) [hereinafter DOOLAN]. 215 Act of Union, 1800, 39 & 40 Geo. 3, ch. 67 (U.K.).

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Irish home rule, devolution, federation, or even complete

independence.216

The Irish independence movement gained momentum in 1916 with

a rebellion in downtown Dublin centred at the city’s General

Post Office called the Easter Rising. The revolutionaries

proclaimed the Poblacht na hEireann217 or Irish Republic.218

Although the rebellion itself was a failure, the harsh

British reaction that included executions of many of the

rebels resulted in a wave of popular support for the general

cause of Irish independence. These sentiments were

reflected in the general election held in 1918 when the

political party Sinn Fein219 emerged as a major force in

216 See generally, JOHN KENDLE, IRELAND AND THE FEDERAL SOULTION: THE DEBATE OVER THE UNITED KINGDOM CONSITUTION, 1870-1921 (1989). 217 For spelling Irish names in this thesis, for the sake of simplicity, I will be ignoring the sineadh fada, which is a diacritical mark used for indicating long vowel sounds. Likewise, I will avoid accent marks in other languages. 218 The name was presumably inspired by that of the “French Republic” (Republique francaise). 219 This Gaelic name can be translated into English as “We Ourselves.” The party still exists today although it has gone through various splits. Today the party that uses the name Sinn Fein is sometimes called the Provisional Sinn Fein to distinguish it from various other groups. However, mostly it is called simply Sinn Fein. In any event, Sinn Fein has arguably become more leftist over time. Indeed, it views itself as a Socialist party. Sinn Fein has a following in both parts ofIreland although it enjoys its most notable support among Roman

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Irish politics. Rather than swear an oath of allegiance to

the British Crown, elected Sinn Fein representatives formed

an alternative Irish parliament called the Dail Eireann220 that

was not sanctioned by London. This legislature promulgated a

declaration of independence and a constitution. However,

those measures were never recognized as being legitimate by

the British authorities.

In response to the pressure for independence, which included

a guerrilla war lead by the original, self-proclaimed Irish

Republican Army (IRA),221 in 1920, the British government

Catholics in the North. Sinn Fein, Sinn Fein (lasted visited July 3, 2007) http://www.sinnfein.ie. 220 The name could be translated as “Assembly of Ireland.” The lower house in Ireland’s contemporary parliament is also known as the Dail Eireann. The upper house or senate is called the Seanad Eireann. Collectively, the two chambers are known as the Oireachtas. DOOLAN, supra note 215, at 14. 221 This outfit is sometimes referred to as the “old IRA” in order to distinguish it from various contemporary factions that use the name IRA.Many of the surviving members of the old IRA later entered democratic politics in the South. The main IRA faction today is often called the “Provisional IRA” or more informally the “Provos.” This is because it was set up as a regional body in reaction to perceived shortcomings of an earlier body called the “Official IRA.” The Official IRA appears to be inactive. The precise relationship between Sinn Fein and the IRA is unknown given the covert nature of the Provos, but it seems to be fairlyclose. Press accounts typically dub Sinn Fein as being the “political wing of the IRA.” Other IRA factions that have been identified are the “Real IRA” and the “Continuity IRA.” These factions appear to have been formed in reaction to Sinn Fein’s moves towards non-violence.

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created the legal framework for separate parliaments in

Dublin and Belfast.222 Ireland was effectively partitioned

into two parts even though the plan did not function quite

as London had planned.223 The partition was essentially a

piece of colonial gerrymandering done with the intention of

creating an entity with a

Protestant/Ulster-Scots majority that would presumably

remain loyal to London.224 The rest of the island was to be

predominately Roman Catholic and ethnically Irish.

In late 1921, an agreement was reached between London and

representatives of Sinn Fein. Under this agreement, known as

the Anglo-Irish Treaty, Ireland achieved in 1922 a

considerable measure of independence as the Irish Free State

(Saorstat Eireann), which was a dominion225 comparable in 222 Government of Ireland Act, 1920, 10 & 11 Geo. 5, ch. 67 (U.K.). Before that, the island had been placed under a form of martial law. Restoration of Order in Ireland Act, 1920, 10 & 11 Geo. 5, ch. 31 (U.K.). 223 There was to be devolution with two assemblies. However, a devolved southern assembly only met briefly to accept the Anglo-Irish Treaty of 1921. KEE, supra note 203, at 713-731.224 It should be noted that in the past some Ulster Protestants actually supported the cause of Irish independence. KEE, supra note 203, at 46-62. 225 For a legal analysis of the term “dominion,” see SIR KENNETH ROBERTS-WRAY, COMMONWEALTH AND COLONIAL LAW 17-19 (1966). In Ireland, however,

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constitutional status to Australia, Canada, New Zealand, and

South Africa at the time.226 However, the largely Protestant

North retained the right to opt out of the new Irish Free

State, which it did. Twenty-six counties out of Ireland’s

thirty-two counties stayed within the Irish Free State. The

remaining six counties227 on the island formed the new

British province of Northern Ireland.228 This province

actually occupied the north-eastern part of the island

rather than the entire north. Today Northern Ireland229

things got murky after 1937 when the new constitution replaced the 1922 constitution and lessened the role of the monarch considerably. See, Garret Fitzgerald, The Irish Constitution in its Historical Context, in IRELAND’S EVOLVING CONSITUTION, 1937-97: COLLECTED ESSAYS 29-40 (Tim Murphy & Patrick Twomey, eds., 1998). See also John A. Murphy, the 1937 Constitution – Some Historical Reflections, in IRELAND’S EVOLVING CONSITUTION, 1937-97: COLLECTED ESSAYS 11-27 (Tim Murphy & Patrick Twomey, eds., 1998). 226 Irish Free State (Agreement) Act, 1922, 12 Geo. 5, ch. 4 (U.K.). See also Irish Free State Constitution Act, 1922, 13 Geo. 5, ch. 1 (Session 2) (U.K.). 227 Since the new province was relatively small, some Irish assumed incorrectly that Northern Ireland would be too small to effectively function. KEE, supra note 203, at 725-728. 228 Incidentally, Northern Ireland is a slightly odd name because the northern most point of the island of Ireland is actually located in County Donegal, which is controlled by the Republic of Ireland. ROSE, supra note 205, at 8. Northern Ireland’s unofficial name of Ulster is also problematic because the boundaries of contemporary Northern Irelanddo not precisely correspond to those of the ancient Irish province of Ulster. 229 The legal meaning of the term “Northern Ireland” was considered in The State (Gilsenan) v. McMorrow, [1978] I.R. 360.

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remains a part of the UK along with England, Wales, and

Scotland.

The Irish Free State was not universally accepted by the

Irish people. A short, but bloody civil war broke out

between supporters of the new Irish Free State and opponents

who continued to seek a republic with no residual links to

London.230 The Irish Free State (pro-treaty) forces

prevailed due partly to British-supplied arms. The two main

political parties in the South today, the Fine Gael231 and

the Finna Fail,232 trace their roots to the opposing sides

during the civil war.

In 1937, the Irish Free State adopted a new constitution

that loosened ties with London using the pretext of the

230 A sticking point was part of the required Oath of Allegiance that referred in part to “King George V, his heirs and successors...” KEE, supra note 203, at 726-727. 231 The party’s name can be translated as the “Tribe of the Gaels.” It isthe descendant of the pro-Free State (pro-treaty) forces. For more on the party, see Fine Gael, Fine Gael (last visited July 3, 2007) http://www.finegael.ie. 232 Finna Fail is the descendant of the anti-Free State (anti-treaty) forces. The party’s name can be translated as the “Soldiers of Destiny.” The party’s website can be found at Finna Fail, Finna Fail (last visited July 3, 2007) http://www.fiannafail.ie.

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abdication of Edward VIII in late 1936.233 Among other

things, in this constitution the state was renamed simply as

Ireland (Eire).234 This entity finally became a fully

sovereign republic in 1949.235 At that time Ireland also

left the Commonwealth.236 Incidentally, although sometimes

called the “Republic of Ireland,” this is technically

incorrect.237 While certainly a republic in form, as opposed

to a monarchy, the official name of the state is still just

“Ireland” in the English language or “Erie” in the Irish

language.238 Hence, strictly speaking, the expression

“Republic of Ireland” is a mere description of the Irish

state.239 233 RAYMOND BYRNE & J. PAUL MCCUTCHEON, THE IRISH LEGAL SYSTEM 549 (3rd ed. 1996) [hereinafter BYRNE & MCCUTCHEON].234 Const. of Ireland, art. 4. 235 Ireland Act, 1949, 12 & 13 Geo. 6, ch. 41 (U.K.). 236 As of the time of writing, the republic remains outside of the Commonwealth. Commonwealth Secretariat, Members (last visited July 3, 2007) http://www.thecommonwealth.org/Internal/142227/members/. 237 The widespread expression “Republic of Ireland” should be viewed as being a description of the state rather than the official name of the state. 238 Ellis v. O’Dea, [1989] I.R. 530, 535, 539-543. In Ellis, the Irish Supreme Court discusses the name “Ireland” versus the expression “Republic of Ireland.” 239 International organizations typically refer to the state by its official name. For instance, both the European Union (EU) and the United Nations (UN) use the name “Ireland.” EU, The Member States of the European Union: Ireland (last visited July 3, 2007) http://europa.eu.int/abc/european_countries/eu_members/ireland/index_en.htm.

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III. Conflict in Northern Ireland

The UK province of Northern Ireland occupies a section of

the island of Ireland that partly corresponds to the

territory of the ancient Irish province of Ulster. The

entire island of Ireland consists of four ancient Irish

provinces viz., Leinster, Munster, Connaught, and Ulster.240

These provinces are further divided into 32 counties.

Historic Ulster consisted of nine counties. However,

Northern Ireland today encompasses only six out of the nine

counties of Ulster. The other three Ulster counties are

clearly located in the republic. Nevertheless, in modern

times the names Ulster and Northern Ireland have often been

used interchangeably.241 Yet, some prefer to use the

expression “six counties” for Northern Ireland.242

UN, List of Member States (last visited July 3, 2007) http://www.un.org/Overview/unmember.html. 240 The provinces are historically significant, but they do not form modern administrative districts. ROSE, supra note 205, at 158.241 ROSE, supra note 205, at 1-6.242 This expression is often associated with the IRA. Be that as it may,it happens to be a geo-politically accurate name.

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Northern Ireland has witnessed decades of conflict between

members of the two main communities most notably during a

period of political violence, economic decline, and general

unrest commonly referred to as “The Troubles.”243 This

period lasted roughly from the late 1960s through the late

1990s. The Troubles can be said to have begun with the

civil rights movement in Northern Ireland during the 1960s

that was inspired by the American civil rights movement and

French student protests. The Northern Ireland civil rights

movement was mostly supported by members of the minority

community. The activists sought an end to ethnic/religious

discrimination in employment and education. A backlash from

elements within the majority community soon followed. The

situation in the province became unstable. In 1972, London

suspended the provincial government and implemented direct

rule.244 The next year a referendum known as the Border Poll

was held confirming that a majority of the voters in

Northern Ireland wanted the province to remain a part of the

243 A handy source on The Troubles and related matters is the University of Ulster, CAIN Web Service, Conflict Archive on the Internet (last visited July 3, 2007) http://cain.ulst.ac.uk/index.html. 244 Northern Ireland (Temporary Provisions) Act, 1972, ch. 22 (U.K.).

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UK.245 Elections were then held for a new Northern Ireland

Assembly.246 However, this system soon collapsed and direct

rule from Westminster was introduced again.247

Local rule was only reintroduced in 1982.248 Yet, in 1986,

the Assembly was once again dissolved. During the 1980s and

1990s various proposals were made about the future of

Northern Ireland that ultimately resulted in the Good Friday

Agreement of 1998, which will be discussed in more detail

later. While there have been occasional incidents of

political violence since the agreement was reached, the

province is generally a more peaceful and stable place than

it was.

Moreover, in the wake of renewed global concerns about

terrorism249 after the September 11, 2001 attacks in the

245 Northern Ireland (Border Poll) Act, 1972, ch. 77 (U.K.). 246 Northern Ireland Assembly Act, 1973, ch. 17 (U.K.); Northern Ireland Constitution Act, 1973, ch. 36 (U.K.); Northern Ireland Constitution (Amendment) Act, 1973, ch 69 (U.K.). 247 Northern Ireland (Emergency Provisions) Act, 1973, ch. 53 (U.K.); Northern Ireland Act, 1974, ch. 28 (U.K.). 248 Northern Ireland Act, 1982, ch. 38 (U.K.). 249 The post-9/11 responses of various governments around the world to the threat of terrorism are treated in detail in GLOBAL ANTI-TERRORISM

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United States, certain extremist groups in Northern Ireland

clearly wish to avoid being labelled as terrorists.250 This

has fostered the cause of non-violent, democratic politics

in the province.

In media reports and academic writing alike, the two

communities in Northern Ireland are often described in stark

bipolar terms.251 The emphasis so often is on the

differences between the two communities rather than any

similarities. Yet, members of the two communities share much

in common. After all, most people in Northern Ireland speak

English as their actual mother tongue, follow some form of

Christianity, dress in similar fashion, eat largely the same

types of food, and so on. Indeed, many foreign visitors to

Northern Ireland would have difficulty guessing who comes

from which community.

LAW AND POLICY (Victor V. Ramraj, Michael Hor & Kent Roach, eds., 2005).250 BEW, supra note 202, at 244-245. 251 See, e.g., ROSE, supra note 205, at 7-17.

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In any event, the differences are clearly important. They

might be cast in sectarian terms, Protestant versus Roman

Catholic, or else in broad political terms, Unionist versus

Republican or Nationalist. However, the communities can

also be described in ethnic terms, Ulster-Scots or Scots-

Irish versus Irish. And, of course, there is the matter of

socio-economic class to consider in the overall equation.252

The majority community in Northern Ireland is the Ulster-

Scots. They tend to identify themselves as being British or

as both Ulster-Scots and British rather than as Irish.253

Politically, the Ulster-Scots generally prefer the status

quo of Northern Ireland remaining within the union that is

the United Kingdom.254 Hence, they are often called

Unionists. By contrast, in Scotland there is actually a

Scottish nationalist movement that seeks complete

252 See generally BEW, supra note 202. See also BELINDA PROBERT, BEYOND ORANGEAND GREEN: THE POLITICAL ECONOMY OF THE NORTHERN IRELAND CRISIS (1978).253 Some even seem more British than the English. For example, the UnionJack is a very common sight in certain parts of the province. 254 In the past, some Ulster-Scots advocated independence for Northern Ireland i.e., a Northern Ireland fully separate from either London or Dublin. ROSE, supra note 205, at 156-157. However, this option is no longer a part of mainstream political discourse in Northern Ireland.

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independence from London. This movement has found political

expression in the form of the Scottish National Party

(SNP).255 To the SNP and similar groups, devolution is not

enough.

The minority community in Northern Ireland is the Irish.

The Irish can be viewed as being the native population in so

far as their ancestors inhabited the entire island of

Ireland before the arrival of the Ulster-Scots.256

Politically, they generally prefer change in the form of

Northern Ireland leaving the United Kingdom and reuniting

with the rest of Ireland. Hence, they are usually called

Republicans or Nationalists. Besides Sinn Fein mentioned

earlier, the other major Nationalist party is the Social

Democratic and Labour Party (SDLP).257 The SDLP has tended to

operate within the existing governmental system in Northern

Ireland and thus it is seen as being moderate. Certainly, 255 Scottish National Party, SNP (last visited July 3, 2007) http://www.snp.org. 256 The Gaelic Celts arrived in Ireland from Continental Europe in ancient times, but human habitation of Ireland predates the arrival of the Celts. KEE, supra note 203, at 9. 257 Social Democratic and Labour Party, SDLP (last visited July 3, 2007) http://www.sdlp.ie.

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the SDLP lacks the often revolutionary rhetoric of Sinn

Fein. Moreover, the SDLP is informally favoured by many

politicians in Dublin who closely monitor events in the

North.

It should also be noted that there is a party called the

Alliance that was specially designed to appeal to voters in

both communities.258 Certain other small parties exist that

are essentially non-sectarian.259 However, all these parties

have had only a limited impact so far. The influence is

felt mostly at the District Council level i.e. the local

government level.

The Irish in Northern Ireland have, at times, alleged

gerrymandering by Ulster-Scots politicians when it came to

drawing the boundaries for Assembly seats. Be that as it

may, from 1922 onwards, the Assembly was dominated by

258 Alliance Party of Northern Ireland, Alliance (last visited July 3, 2007) http://www.allianceparty.org. 259 An example would be the Green Party in Northern Ireland that has a strong environmental focus like similar parties elsewhere. The Green Party in Northern Ireland, The Green Party (last visited July 3, 2007) http://www.greens-in.org.

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Unionists. The provincial bureaucracy was also predominately

Unionist.260 Political marginalization of the minority

community fuelled resentment.

The conflict has also had an economic dimension. Although

Northern Ireland was traditionally more developed than the

island as a whole, the Irish living in the North tended to

have lower incomes, and they were more likely to be

unemployed than the Ulster-Scots. So, political and economic

marginalization came together.

Be that as it may, there are significant working class

populations in both communities. Urban working class areas

in Belfast have been effectively segregated for decades.

Families live in different neighbourhoods, children attend

separate schools, and so on. This has limited awareness of

260 The Royal Ulster Constabulary (RUC) was also an overwhelmingly Protestant institution. In 2001, the RUC was replaced with a new police force, the Police Service of Northern Ireland (PSNI). The PSNI has strived to be a more inclusive and accountable force. PSNI, PSNI (last visited July 3, 2007) http://www.psni.police.uk. The basis for the change came from a report by the Independent Commission on Policing for Northern Ireland that was chaired by Chris Patten, who had previously served as the last British governor of Hong Kong. MORGAN, supra note 8, at 486-487.

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common working class interests across ethnic lines. It is

in these neighbourhoods where the lingering conflict is most

obvious. For instance, even on a peaceful day, one can see

physical evidence of the conflict in the political murals on

many buildings in these areas.

There are, of course, people in Northern Ireland who belong

to neither community. For example, there are a few Asian

families living in the provincial capital of Belfast. Yet,

Belfast is certainly not a large cosmopolitan city like

London. So, the number of such groups in Northern Ireland

remains quite small and thus at least at this point in time

these groups are not politically significant for purposes of

the conflict.

In the rest of the island, the Irish are the main community.

Although there are a few Protestants in the republic, their

numbers are small and arguably they have been fairly well

integrated into broader Southern society. The republic is

overwhelmingly Roman Catholic, but the influence of the

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Church has weakened in recent decades as Ireland gradually

becomes more secularized like much of Western Europe.261

This has even resulted in litigation to attempt to limit the

role of the Church in Irish society.262 Yet, the Roman

Catholic Church still retains influence in areas such as

education.263

In recent years, the republic has attracted workers from the

North and even some overseas immigrants thanks to a period

of significant economic growth. This has been a major

social change for Ireland, which for centuries was a source

of rather than a destination for immigrants. If the

republic’s economy remains relatively strong, then that

could make reunification more attractive especially as

Belfast is no longer the important industrial and

shipbuilding centre that it once was.

261 See, e.g., Gerald F. White, Some Reflections on the Role of Religion in the Constitutional Order, in IRELAND’S EVOLVING CONSITUTION, 1937-97: COLLECTED ESSAYS 51-63 (Tim Murphy & Patrick Twomey, eds., 1998) [hereinafter WHITE].262 Campaign to Separate Church and State in Ireland v. The Minister forEducation, [1998] 3 I.R. 343. 263 Desmond M. Clarke, Education, the State and Sectarian Schools, in IRELAND’S EVOLVING CONSITUTION, 1937-97: COLLECTED ESSAYS 65-77 (Tim Murphy & Patrick Twomey, eds., 1998).

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Ireland and the UK are both members of the EU.264 The

countries share certain key values when it comes to

democracy, the rule of law, and the role of market forces.

Furthermore, Ireland and Northern Ireland are both English

common law jurisdictions.265 Hence, they have largely

similar sets of laws and legal systems.266

Political violence has, of course, been a tragic feature of

life in Northern Ireland for decades. Much of this violence

has been along sectarian lines. To outsiders, the IRA is

perhaps the most familiar name. But, Unionist

paramilitaries exist as well.267 These include groups like

the Ulster Defence Association (UDA), Ulster Freedom

Fighters (UFF), Ulster Volunteer Force (UVF), the Red Hand

264 The impact of the EU on Ireland is considered in JAMES GOODMAN, SINGLE EUROPE, SINGLE IRELAND?: UNEVEN DEVELOPMENT IN PROCESS (2000). See also Edward Moxon-Browne, The impact of the European Community, in, NORTHERN IRLEAND: POLITICS AND THE CONSITUTION 47-59 (Brigid Hadfield, ed. 1992). 265 DOOLAN, supra note 215, at 2-3; BYRNE & MCCUTCHEON, supra note 234, at 4-6. See also W.N. Osborough, Constitutionally Constructing a Sense of Oneness: Facets ofLaw in Ireland after the Union, 37 THE IRISH JURIST 227 (n.s. 2002). 266 For a very basic though official overview of law in various parts ofthe UK, see HMSO, Britain’s Legal Systems (2nd ed. 1996). 267 ROSE, supra note 205, at 45-49.

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Commandos, and the Red Hand Defenders. Like the IRA, the

Unionist paramilitaries operate underground, but some appear

to have links to Unionist politicians and also to the Orange

Order, a pan-Protestant religious organization based in

Northern Ireland.268 Also, like the IRA, there have been a

series of splits within the Unionist paramilitaries

resulting in a number of splinter groups. Certain

paramilitaries have declared ceasefires or otherwise been

relatively inactive since the late 1990s.

The main Unionist political parties269 are the Democratic

Unionist Party (DUP)270 and the Ulster Unionist Party

268 BBC News, Profile: The Orange Order (posted on July 4, 2001) http://news.bbc.co.uk/2/hi/uk_news/northern_ireland/1422212.stm. 269 All the major political parties in Northern Ireland are organized along essentially ethnic lines. The parties basically vie for votes fromwithin their own ethnic communities rather than try to appeal to all voters. Paul Mitchell, Transcending an Ethnic Party System?: The Impact of Consociational Governance on Electoral Dynamics and the Party System, in, ASPECTS OF THE BELFAST AGREEMENT 28-48 (Rick Wilford, ed., 2001) [hereinafter ASPECTS]. 270 Democratic Unionist Party, DUP (last visited May 2, 2008) http://www.dup.org.uk. See also Ian Paisely, European Institute of Protestant Studies (last visited May 2, 2008) http://www.ianpaisley.org. The DUP is closely associated with Ian Paisley, a religious leader, journalist, and politician. As a minister, he set up his own “Free Presbyterian Church,” which is separate from the mainstream Presbyteriandenomination in Ireland. At the time of writing, the DUP is the largest party in the North.

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(UUP).271 In the May 2005 Westminster elections for Northern

Ireland, the DUP was the most successful party in the

province winning nine seats.272 It gained four seats mostly

at the expense of the UUP, which won only one seat. On the

Nationalist side, Sinn Fein gained one Westminster seat for

a total of five, and the SDLP kept its total of three

Westminster seats. In other words, the more hard-line

parties on each side of the communal divided made gains.

District Council elections for Northern Ireland were also

held on May 5, 2005. The DUP and Sinn Fein also gained

ground at that level.

More recently, in early 2007, elections were held for the

Northern Ireland Assembly. The DUP won the largest share

overall of any party with just over 30% of the vote or 36

271 Ulster Unionists (last visited July 3, 2007) http://www.uup.org. Until recently, the leader of this party was David Trimble. He was the co-recipient of the 1998 Noble Peace Prize. He shared the prize with John Hume, the former leader of the Social Democratic and Labour Party (SDLP), a party that appeals mostly to the nationalist community. Trimble lost his seat in the May 5, 2005 election. He has stepped down as leader of the UUP. 272 ARK Northern Ireland Social & Political Archive, Northern Ireland Elections(last visited July 3, 2007) http://www.ark.ac.uk/elections.

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seats out of a total of 108. The second largest party was

Sinn Fein with about 26% of the vote or 28 seats. The rest

of the seats went to the UUP, SDLP, Alliance, and others.273

So, once again, the hardline parties gained ground at the

expense of the moderate parties. However, leaders from

opposite ends of a political divide are sometimes actually

the best ones to reach an agreement that can be supported by

the people as a whole. The recent agreement on power

sharing between Ian Paisley and Gerry Adams, the leaders of

the DUP and Sinn Fein, respectively, has resulted in a

resumption of self-rule in Northern Ireland.274

IV. Previous peace efforts

Prior to the Good Friday Agreement described below, there

were other efforts to establish peace in Northern Ireland.

Understanding past efforts is important because the Good

Friday Agreement built upon such efforts. Also, some of the273 Id.274 Eamann Mallie (AFP), Northern Ireland rivals agree historic self-rule deal available at, YAHOO! NEWS (posted March 27, 2007) http://news.yahoo.com/s/afp/20070327/wl_uk_afp/britainnireland_070327075831;_ylt=Aot0FtkPETbVqzIz49tFzhvjOrgF.

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players involved in the talks were active in politics during

these previous efforts.

The Sunningdale Agreement of 1973, which was a communiqué

rather than a treaty,275 saw the establishment of a

relatively informal, pan-island Council of Ireland to deal

with North/South issues. Also, within the province itself,

the Sunningdale Agreement facilitated the creation of a

power-sharing executive for Northern Ireland in the wake of

direct rule from London that was imposed in 1972. The idea

was to ensure representation in the local executive of

elements from both the majority community and the minority

community. Certain powers were devolved by London to the

new assembly.

The Sunningdale Agreement was challenged in the Irish courts

on the grounds that it was repugnant to the Irish

Constitution.276 In Boland, the plaintiffs argued that the

275 University of Ulster, Conflict Archive on the Internet (CAIN), The Sunningdale Agreement, December 1973 (last visited July 3, 2007) http://cain.ulst.ac.uk/events/sunningdale/agreement.htm. 276 Boland v. An Taoiseach, [1974] I.R. 338.

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Sunningdale Agreement violated Articles 2 and 3 of the Irish

Constitution277 because the Irish government had agreed with

the UK government that any change in the status of Northern

Ireland would only come about with the consent of the

majority of the people in Northern Ireland. The Supreme

Court of Ireland held that the Sunningdale Agreement was an

exercise of executive power and was thus not capable of

review unless the government had acted in clear disregard of

the constitution. The Court then held that the Irish

government had acted within its constitutional powers.

The downfall of the Agreement came not in the courts in the

South, but on the streets in the North. The new provincial

government was strongly opposed by various Unionist groups

that lead to a general strike. Unionist opposition

eventually caused the entire system to collapse.

277 As will be explained later, these articles consisted of a territorialclaim on Northern Ireland and a provision on the application of Irish law.

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The Anglo-Irish Agreement of 1985, which was an actual

treaty between London and Dublin, was another past effort.

The Anglo-Irish Agreement gave the republic a consultative

role in the affairs of Northern Ireland.278 It established

an Anglo-Irish Intergovernmental Conference. This

Conference focused on East/West ties between Ireland and the

UK.

However, the Anglo-Irish Agreement was not met with

universal approval in Northern Ireland. In particular, to

some Unionists, this seemed to mark the beginning of the end

of the union with the UK. In this connection, the Agreement

survived an unusual challenge brought by Unionist plaintiffs

in the Irish courts.279 The plaintiffs in McGimpsey

unsuccessfully argued that the Anglo-Irish Agreement

violated the Articles 2 and 3 of the Irish Constitution.280

278 For a constitutional study of the 1985 Agreement, see Brigid Hadfield, The Anglo-Irish Agreement 1985 – Blue Print or Green Print? 37 NORTHERN IRELAND LEGAL Q. 1 (Spring 1986) (n.s.). 279 McGimpsey v. Ireland, [1990] 1 I.R. 110. 280 The case dealt with the 1937 version of Articles 2 and 3. As is explained elsewhere in this chapter, the two articles in question have since been amended.

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The reliance on those articles was ironic given the

traditional Unionist hostility towards them.

The more recent peace process can be traced to the Downing

Street Declaration of 1993, which is also known as the Joint

Declaration.281 In the Downing Street Declaration, the

British government stated that it had no “selfish strategic

or economic interest in Northern Ireland.” It also

reaffirmed the British position that Northern Ireland would

remain a part of the UK until such time as a majority voted

otherwise in a referendum to leave the UK. As such, the

Downing Street Declaration left open the possibility of

Irish reunification while, at the same time, trying to

assure Unionists that Northern Ireland would remain a part

of the UK for the time being. Being, in essence, a

compromise, the Downing Street Declaration was criticized by

some on both sides of the communal divide in Northern

Ireland.

281 Department of Foreign Affairs, Ireland, The Joint Declaration of December 1993 (last visited July 3, 2007) http://www.dfa.ie/home/index.aspx?id=8734.

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Be that as it may, the Downing Street Declaration opened the

way for parties with links to paramilitaries to participate

in talks provided that they renounced violence. That

eventually resulted in multi-party talks being held on the

future of Northern Ireland.

V. The Good Friday Agreement

On April 10, 1998, at the Multi-Party Talks on Northern

Ireland, which were held at Stormont in Belfast, a

relatively short yet complex and certainly significant

agreement was reached between the then British Prime

Minister Tony Blair, Irish Taoiseach (Prime Minister) Bertie

Ahern, and leaders of several local political parties in

Northern Ireland.282 The sometimes tense talks had been

282 Notable academic works on this process include the following: MORGAN, supra note 8; ASPECTS, supra note 270; NORTHERN IRELAND AND THE DIVIDED WORLD: THE NORTHERN IRELAND CONFLICT AND THE GOOD FRIDAY AGREEMENT IN COMPARATIVE PERSPECTIVE (John McGarry ed., 2001); Donal O’Donnell, Constitutional Background to and Aspects of the Good Friday Agreement – A Republic of Ireland Perspective, 50 NORTHERN IRELAND LEGAL Q. 76 (Spring 1999). Another important source is the special April 1999 issue of the Fordham International Law Journal that was devoted to the “Northern Ireland Peace Agreement.”

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facilitated by former Senator George Mitchell of the United

States, General John de Chastelain of Canada, and former

Prime Minister Harri Holkeri of Finland. The result was a

new British-Irish agreement to replace the framework set up

by the Anglo-Irish Agreement of 1985.

This new British-Irish agreement goes by various popular

names viz., the Good Friday Agreement, the Belfast

Agreement, the Stormont Agreement, and the Northern Ireland

Agreement. Among these, the Good Friday Agreement is

perhaps the most widely used name today. The name comes

from the fact that 10 April 1998 happened to be Good Friday,

an important holy day for Catholics and Protestants alike

who together form the bulk of the population in Northern

Ireland. However, Good Friday is followed by Easter, a

Christian holy day that has strong political overtones in

Ireland because of the Easter Rising of 1916, which was

mentioned earlier in this chapter. Alternatives such as the

Belfast Agreement or Stormont Agreement seem to be more

appealing names to those who favour the continued union of

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Northern Ireland with Great Britain. Be that as it may,

here I will generally refer to the agreement as the Good

Friday Agreement in light of widespread usage.

The Good Friday Agreement consists of several parts. It

starts with a Declaration of Support, which functions as a

preamble. The tone of the Declaration of Support is

suitably optimistic yet respectfully mindful of the history

of violence in Northern Ireland.

The Declaration of Support is followed by a section entitled

Constitutional Issues. This section deals with the status

of Northern Ireland and citizenship. Specifically,

democratic choice is put forth as the basis for both the

current status and future of Northern Ireland. It is

recognized that the majority of the population of Northern

Ireland presently wishes to remain within the United Kingdom

and that any change in Northern Ireland’s status would have

to have the support of the majority of the population of the

province. In other words, any reunification of Northern

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Ireland with the rest of Ireland would only come about if a

majority of the population in the North voted for

reunification of the island over the status quo. This, of

course, assumes that people in the South would continue to

support reunification. As events a few years ago on another

divided island proved, one cannot take such continued

support for granted. In the UN-organized referendum held on

Cyprus, it was the majority Greek Cypriot community of the

Republic of Cyprus that actually rejected reunification with

the Turkish Cypriot zone, the self-proclaimed Turkish

Republic of Northern Cyprus.283

As for citizenship, the Good Friday Agreement recognizes

that it is the birthright of the people of Northern Ireland

to hold British citizenship or Irish citizenship or even

both. Of course, British subjects and Irish citizens can

also enjoy considerable freedom of movement within the EU.

283 See, e.g., BBC News, Cyprus reunification fails (updated April 24, 2004) http://news.bbc.co.uk/1/hi/world/europe/3656653.stm.

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Attached to the Constitutional Issues section are two

Annexes. The Annexes contain draft British and Irish

legislation, respectively. The draft British legislation in

the first Annex was designed, in part, to repeal the

Government of Ireland Act of 1920. That would enable the

people of Northern Ireland to vote on the future on the

province. The procedure for such a poll is set forth in a

Schedule to the relevant Annex.

The second Annex contains a proposed Amendment to the Irish

Constitution whereby the text of Articles 2 and 3 of the

Irish Constitution of 1937 would be dramatically reworded

and two new provisions added.284 These will be discussed in

detail later.

The rest of the Agreement features three Strands. Strand

One entitled Democratic Institutions in Northern Ireland

establishes the framework for a new provincial Assembly

284 In addition, there were some transitional provisions to facilitate constitutional change in Ireland. Those provisions no longer appear in any official version of the Irish Constitution.

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within the UK constitutional context of the devolution of

powers from the central government to the

provinces/countries that make up the UK.285 More exactly,

there is a Northern Ireland Executive286 that answers to the

Northern Ireland Assembly.287

Nevertheless, both institutions were suspended in the

past.288 In other words, devolution was suspended in

Northern Ireland on a couple of occasions yet devolution has

now been restored once more in Northern Ireland.289

Strand Two establishes a North/South Ministerial Council

(NSMC) to enable cooperation between the executive branches

of Northern Ireland and the Republic of Ireland.290 The NSMC 285 Certain governmental powers formerly exercised in London have been devolved to Scotland and Wales. For some thoughts on devolution generally, see Rodney Brazier, New Labour, New Constitution? 75 NORTHERN IRELAND LEGAL Q. 1 (Spring 1998). See also Paul R. Maguire, Why devolution?, in NORTHERN IRELAND: POLITICS AND THE CONSITUTION 13-28 (Brigid Hadfield, ed. 1992). 286 Northern Ireland Executive, Northern Ireland Executive (last visited July 3, 2007) http://www.northernireland.gov.uk. 287 Northern Ireland Assembly, Northern Ireland Assembly (last visited July 3, 2007) http://www.niassembly.gov.uk. 288 That suspension took effect in October 2002. Devolved government wasrestored again in May 2007. 289 Northern Ireland (St Andrews Agreement) Act, 2006, ch. 35 (U.K.); Northern Ireland (St Andrews Agreement) Act, 2007, ch. 4 (U.K.). 290 North/South Ministerial Council, North/South Ministerial Council (last visited July 3, 2007)

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consists of a council of ministers from the provincial

government in Northern Ireland and the government of the

Republic of Ireland. It is designed to deal with certain

problems on an island-wide basis by seeking common policies

to be implemented separately in each jurisdiction. In 1999,

the NSMC agreed to work on public policy matters involving

agriculture, education, the environment, health, tourism,

and transportation. Six North/South Bodies, staffed by civil

servants from both jurisdictions, were set up to operate on

an island-wide basis. The bodies are Waterways Ireland

(canals), Food Safety Promotion Board, Trade and Business

Development Body, Special European Union Programmes Body,

the Language Body, and the Foyle, Carlingford and Irish

Lights Commission (lighthouses). To the average outsider,

the efforts of the NSMC are perhaps most visible in the area

of tourism. A new agency called Tourism Ireland291 was

created by the joint efforts of the tourist boards from

http://www.northsouthministerialcouncil.org/index.htm. 291 Tourism Ireland, Tourism Ireland (last visited July 3, 2007) http://www.tourismireland.com.

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Ireland and Northern Ireland. Tourism Ireland promotes the

whole island as a single destination for overseas tourists.

Strand Three establishes a new British-Irish Council (BIC)292

which deals with a range of East/West matters in summits

normally attended by the heads of government from the United

Kingdom and the Republic of Ireland as well as top local

officials from Northern Ireland plus Scotland and Wales

along with the Isle of Man, Guernsey, and Jersey.293 In

total, eight different entities are represented.294 The BIC

is sometimes also called the “Council of the Isles.” That

alternative name arguably better reflects the geographical

reach of the Council. In any event, the BIC fosters

cooperation in the policy areas of drugs, the environment,

the knowledge economy, social inclusion, telemedicine, 292 British-Irish Council, British-Irish Council (updated on July 12, 2006) http://www.british-irishcouncil.org. 293 The Isle of Man is an island located in the Irish Sea roughly halfwaybetween Ireland and Great Britain. It is a British crown dependency. As such, the Isle of Man is not legally a part of the UK. Likewise, theBailiwick of Guernsey and the Bailiwick of Jersey, which are often collectively referred to as the Channel Islands because of their location in the English Channel between England and France, are both crown dependencies. None of these three jurisdictions are members of theEU. 294 The inclusion of the smaller jurisdictions was apparently a move to satisfy Unionists.

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tourism, transportation, and indigenous/minority/lesser-used

languages.

In addition, Strand Three establishes a British-Irish

Intergovernmental Conference (BIIC or BIIGC)295 to replace

both the Anglo-Irish Intergovernmental Council and the

Intergovernmental Conference created under the 1985

Agreement. The new Conference can be viewed as being the

functional counterpart to the NSMC. The BIIGC deals with

East/West matters arising between Ireland and the UK.

Yet, the most important part of Strand Three is arguably the

chapter on Rights, Safeguards and Equality of Opportunity

that covers human rights and related issues. Given the

tensions between the two main communities in Northern

Ireland as well as decades of distrust by some in Northern

Ireland towards the government, setting up a solid legal

framework for the protection of human rights was a vital

295 The BIC should not be confused with the BIIC/BIIGC.

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step towards a better future for the province and the island

as a whole.

Specifically, the provisions on human rights in Strand 3

provide for the incorporation of the European Convention

into the law of Northern Ireland. This was done. In fact,

with the passing of the Human Rights Act of 1998 the entire

UK (and not merely the province of Northern Ireland) was

covered.296 Moreover, Protocols 1 and 6 to the European

Convention297 were also incorporated.298

By incorporating the European Convention into municipal law,

courts in Northern Ireland could be used. Litigants could

thus avoid the potential expense and inconvenience of using

the European Court of Human Rights, which is based in

Strasbourg, France.299

296 Human Rights Act 1998, ch. 42, passim (U.K.). 297 Protocol 1 deals with the rights to property, education, and free elections while Protocol 6 deals with restrictions on the death penalty.Protocol No. 1, March 20, 1952, 213 U.N.T.S. 262; Protocol No. 6, April28, 1983, 22 I.L.M. 538 298 Human Rights Act 1998, ch. 42, sec. 1 (U.K.). 299 European Court of Human Rights, European Court of Human Rights (last visited July 3, 2007) http://www.echr.coe.int/ECHR.

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Pursuant to Strand 3, a new Human Rights Commission was set

up for Northern Ireland with representation from both major

communities.300 Meanwhile, as agreed, the republic has set

up a similar body for the rest of the island.301 Likewise,

the republic has incorporated the European Convention into

Irish law.302 So, people in both parts of Ireland now enjoy

similar legal protections in the area of human rights.

In Strand 3, the Irish government also agreed to ratify the

Council of Europe Framework Convention for the Protection of

National Minorities.303 This was done in 1999. The UK had

already ratified the convention in early 1998 shortly before

the Good Friday Agreement. The convention specifically

protects the rights of national, ethnic, linguistic, and

religious minorities living in Europe. In the context of

300 NIHRC, Northern Ireland Human Rights Commission (last visited on July 3, 2007) http://www.nihrc.org. See also Colin Harvey, Human Rights and Equality inNorthern Ireland, 57 NORTHERN IRELAND LEGAL Q. 215 (Spring 2006). 301 IHRC, Irish Human Rights Commission (last visited on July 3, 2007) http://www.ihrc.ie.302 European Convention on Human Rights Act, 2003 (Ireland). 303 Framework Convention for the Protection of National Minorities, February 1, 1995, ETS no. 157.

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Ireland, the convention would protect Catholics in the North

as well as Protestants in the South plus other minorities.

By far, the most complicated provisions of Strand Three to

implement in practice have been those on the decommissioning

of weapons held by paramilitaries in Northern Ireland. As

was noted earlier, there have been paramilitaries on both

sides of the conflict. Furthermore, the paramilitaries have

periodically experienced schisms. For example, there have

been splinter groups from the paramilitaries such as the so-

called “Continuity IRA” and “Real IRA” that came out against

the Northern Ireland Peace Process.304

VI. Constitutional change in the republic

While the UK famously has a so-called “unwritten

constitution” that has evolved over centuries, Ireland has a

modern written constitution.305 In other words, unlike in

304 University of Ulster, CAIN (Conflict Archive on the Internet), Abstracts on Organisations that were prominent during the Troubles (last visited July 3, 2007), http://cain.ulst.ac.uk/othelem/organ/azorgan.htm. 305 This distinction, of course, ignores the important role of case law.

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many countries, there is no single legal text that can be

referred to as being the constitution for the UK. Rather,

there is a collection of important statues, cases, customs,

and conventions that can be said to comprise the UK’s

constitution. In classic UK constitutional theory, the

Parliament at Westminster is supreme.306 Strictly speaking,

there is no separation of powers, etc. However, in actual

practice, there are certain limits on parliamentary power.

For instance, as was mentioned earlier, the Human Rights Act

of 1998 has now fully incorporated the European Convention307

into the municipal law of the entire UK. This statute has

thus effectively restricted the power of the UK’s

Parliament. Accordingly, it plays a role roughly equivalent

to that of the Bill of Rights in the US Constitution.

In the UK, in theory at least, changing the constitution can

be simply done by means of ordinary legislation. While this

does have the advantage of flexibility, it also entails an 306 For some reflections on UK constitutionalism, see MORISON & LIVINGSTONE, supra note 205, at 1-88.307 European Convention for the Protection of Human Rights and Fundamental Freedoms, November 5, 1950, 312 U.N.T.S. 221.

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element of potential uncertainty. A change in the majority

party in the House of Commons can thus result in rapid

constitutional change. This is especially true when the

governing party has a large majority that can withstand

potential rebellions from backbenchers.

By contrast, Ireland has a single constitutional text with

provisions for the separation of powers including judicial

review.308 This basic document is the Constitution of

Ireland or Bunreacht na hEireann.309 Ireland’s present

constitution dates from 1937.310 It has been amended a

number of times,311 but since the early 1940s constitutional

change in Ireland cannot be done merely by legislation. The

contemporary Irish method is that of a constitutional

308 See generally, DAVID GWYNN MORGAN, THE SEPARATION OF POWERS IN THE IRISH CONSITUTION (1997). See also J.M. KELLY, FUNDAMENTAL RIGHTS IN THE IRISH LAW AND CONSTITUTION (2nd ed. 1967). 309 A helpful source on Irish constitutional law is FERGUS W. RYAN, CONSTITUTIONAL LAW (2001). See also Anthony Carty, The Irish Constitution, International Law, and the Northern Question – The Need for Radical Thinking, in, IRELAND’S EVOLVING CONSTITUTION, 1937-1997: COLLECTED ESSAYS 97-105 (Tim Murphy & Patrick Twomey, eds. 1998). 310 For a brief overview, see THOMAS A. FINLAY, THE CONSITUTION FIFTY YEARS ON (1998). 311 The most recent change came in 2002 that allowed Ireland to finally ratify the EU’s Treaty of Nice.

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referendum.312 A referendum bill must pass both houses of

the Oireachtas viz., the Dail Eireann and the Seanad Eireann.313

A referendum is then held. All citizens entitled to vote in

Dail elections can vote on the referendum. If the measure

receives a majority of the votes in the referendum, then the

amendment is signed into law by the President.314

To incorporate the Good Friday Agreement, such a referendum

was held in the Republic of Ireland held in May 1998. The

referendum was one of the early successes of the peace

process. It indicated widespread support in the republic

for the Good Friday Agreement.

The proposed new Article 2 dropped Dublin’s territorial

claim on Northern Ireland while the new Article 3 dropped

Dublin’s somewhat vague provision on the application of

312 In Ireland, each proposal whether ultimately successful or not is referred to as a numbered amendment. The amendments can change existingarticles and/or add new articles to the constitutional text. 313 However, the bill must originate in the Dail, which is arguably the more powerful of the two houses. 314 Ireland has a President with largely ceremonial powers.

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Irish law.315 These provisions survived a challenge that

went up to the Irish Supreme Court.316

Previously, the Constitution of Ireland made a territorial

claim on all of Ireland:

The national territory consists of the whole island of Ireland, its islands and the territorial seas.317

Hence, this claim by implication included the entire UK

province of Northern Ireland as being de jure part of

Ireland. This implied that de facto British rule in Northern

Ireland was illegitimate. Yet, despite the claim, Dublin was

pragmatic and always maintained diplomatic relations with

London. Indeed, ties have often been fairly close despite

unrest in Northern Ireland. Moreover, Ireland and the UK

jointly entered the European Economic Community (EEC), now

315 Donal O’Donnell, Constitutional Background to and Aspects of the Good Friday Agreement – A Republic of Ireland Perspective, in, 50 NORTHERN IRELAND LEGAL Q. 76(Spring 1999). 316 Riordan v. An Taoiseach (No. 2), [1999] 4. I.R. 434. 317 Const. of Ireland of 1937, art. 2.

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the EU, in 1973 while the territorial claim was still part

of the Irish Constitution.318

A related provision of the Irish Constitution ran as

follows:

Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory,the laws enacted by that Parliament shall have the likearea and extent of application as the laws of Ireland and the extra-territorial effect.319

While not exactly a model of clarity in constitutional

drafting, this provision was effectively a limitation on the

application of Irish law to the territory under the actual

control of Dublin.320 To some, it might seem to have

weakened territorial claim, but to others it would simply

have seemed practical given the reality of the British

presence in Northern Ireland. 318 Denmark also joined the EEC at that time. Today Denmark is a member of the EU albeit it has not adopted the euro as its currency. However, in Norway voters rejected joining the EEC during the same enlargement process. Today Norway remains outside of the EU. 319 Const. of Ireland of 1937, art. 3. 320 McGimpsey v. Ireland, at 119.

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The new wording of Article 2 is as follows:

It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and sea, to be part of the Irish nation. That it is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.

Article 2 thus drops the territorial claim. At the same

time, it articulates an inclusive vision of Irish

citizenship that reaches out to people from both traditions

in Northern Ireland as well as to people of Irish extraction

overseas.321

Article 3 was dramatically altered as well. Indeed, it was

entirely rewritten and divided into two sections as follows:

Article 3.1. It is the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all

321 Desmond M. Clarke, Nationalism, the Irish Constitution, and Multicultural Citizenship, in, 51 NORTHERN IRELAND LEGAL Q. 100 (Spring 2000).

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the diversity of their identities and traditions, recognising that a united Ireland shall be bought aboutonly by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation ofthis Constitution.

Article 3.2. Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powersand functions in respect of all or any part of the island.

At the same time, two new provisions, Articles 29.7 & 29.8,

were added. They have received less scrutiny.

Article 29.7 has two parts as follows. Article 29.7 (1)

expressly incorporates the Good Friday Agreement into Irish

law. Article 29.7(2) paves the way for intergovernmental

cooperation envisioned under the Agreement:

Article 29.7(1). The State may consent to be bound by the British-Irish Agreement done at Belfast on the 10thday of April, 1998, hereinafter called the Agreement.

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Article 29.7(2). Any institution established by or under the Agreement may exercise the powers and functions thereby conferred on it in respect of all or any part of the island of Ireland notwithstanding any other provision of this Constitution conferring a like power or function on any person or any organ of State appointed under or created or established by or under this Constitution. Any power or function conferred on such an institution in relation to the settlement or resolution of disputes or controversies may be in addition to or in substitution for any like power or function conferred by this Constitution on any such person or organ of State as aforesaid.

Article 29.8 clarifies the application of Irish law outside of Ireland. It rejects any special application of Irish law in Northern Ireland:

Article 29.8. The State may exercise extra-territorial jurisdiction in accordance with the generally recognized principles of international law.

Collectively, the new provisions clearly demonstrate a

profound change in vision in the interest of peace on the

island.322 Instead of being overly concerned with

322 However, the Preamble with its decidedly nationalist and religious tone remained unchanged:

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both ofmen and States must be referred,

We, the people of Eire,

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formalistic models of either federation or confederation,

the Good Friday Agreement and the relevant amendments to the

Irish Constitution focus on democracy, tolerance, and

pragmatism.323 This has given hope to many people living in

both parts of the island.

The respective institutional roles played by the NSMC, BIC,

and BIIGC have all helped to build confidence in the process

as a whole.

Humbly acknowledging all our obligations to our Divine Lord,Jesus Christ, Who sustained our fathers through centuries oftrial,

Gratefully remembering their heroic and unremitting struggleto regain the rightful independence of our Nation,

And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,

Do hereby adopt, enact, and give to ourselves this Constitution.

Const. of Ireland, Preamble.

Either changing or simply dropping the Preamble might make the republic more appealing to Protestants in the North.

323 See, Kate Fearon & Monica McWilliams, The Good Friday Agreement: A Triumph ofSubstance over Style, 22 Fordham Int’l L. J. 1250 (1999).

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However, there have been problems with the full

implementation of the Good Friday Agreement. It has proven

difficult to make power sharing work. The provincial

government was suspended in 2000324 and then again in 2002.

Fresh assembly elections were held in 2003 and then again in

2007.325 Devolution has proven to be harder to implement in

Northern Ireland than in either Scotland or Wales.

Nevertheless, the restoration of the assembly in May 2007

offers new hope for Northern Ireland.

Furthermore, taking the gun out of Northern Ireland politics

took longer than expected.326 As this chapter is being

written, although the level of political violence in

Northern Ireland is much lower than in the past, certain

paramilitaries might still have a few caches of weapons.

324 Northern Ireland Act, 2000, ch. 1 (U.K.). 325 Northern Ireland Assembly Elections Act, 2003, ch. 3 (U.K.); NorthernIreland Assembly (elections and Periods of suspension) Act, 2003, ch. 12(U.K.); Northern Ireland (Monitoring Commission etc.) Act, 2003, ch. 25 (U.K.). See also Nicholas Whyte, Northern Ireland Elections (last visited July 3, 2007) http://www.ark.ac.uk/elections. 326 Northern Ireland Arms Decommissioning (Amendment) Act, 2002, ch. 6 (U.K.). This statute extended the amnesty that had been established in 1997. Northern Ireland Arms Decommissioning Act, 1997, ch. 7 (U.K.).

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Destroying or otherwise putting these weapons verifiably

beyond use has been a difficult task, but considerable

progress has been made.

VII. Conclusion

The dropping of the territorial claim to Northern Ireland in

the Irish Constitution as part of the Northern Ireland Peace

Process was an important step with symbolic, political, and

direct legal implications. In fact, it was one of the main

innovations in the process over past efforts to resolve the

question of Northern Ireland. Of course, merely amending

the Irish Constitution was not enough to change the

realities on the ground in Northern Ireland, but it was an

important step on the path to peace.

Expanding the scope of human rights law with new statutes

and new commissions has also been a positive development for

the entire island. This move benefits all communities –

Irish, Ulster-Scots, and others living in both Northern

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Ireland and the republic. The European basis for these

changes should ensure high standards.

Another important part of the peace process has been the

creation of new cross-border and cross-sea bodies namely,

the NSMC, BIC, and BIIGC. These have helped to foster a new

spirit of cooperation on both a north/south and an east/west

basis. Yet, these bodies have also been able to draw on

past practices to a certain extent.

Likewise, for Northern Ireland, unlike for Scotland and

Wales, devolution is not an entirely new experience. Even

some mode of power-sharing is not a novel concept for

Northern Ireland.

Amending the Irish Constitution, however, represents a fresh

element in trying to solve the problem of Northern Ireland.

In particular, dropping the territorial claim has

demonstrated the republic’s willingness to abandon a long-

held irredentist streak in Irish nationalism. In view of

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Ireland’s long history under colonial rule, this was

significant on a symbolic level. It also had political

implications given the traditionally strong support for

reunification among Irishmen and Irishwomen living

throughout the island and among the Irish Diaspora. Legally,

Ireland has given up any jurisdiction over the North.

Yet, this innovative constitutional approach need not hinder

reunification of the island someday. It can in fact be

viewed as a pragmatic measure to ease tensions in Northern

Ireland and improve relations with the UK. The possibility

of Irish reunification remains. The difference now is that

it must be based only on democratic and peaceful means.

In practical terms, if a referendum on the future were held

today on the future of Northern Ireland, a majority would

almost certainly elect to stay within the UK. However, the

balance might shift within a couple of decades.

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Economics could also play a role. Ireland is no longer an

economic backwater.327 In particular, Dublin, which is the

largest city on the island, has witnessed considerable

growth during the past decade or so. This could make the

prospect of reunification appealing to some Ulster-Scots.

The now relatively marginal role of Northern Ireland within

the UK’s economy is also a consideration.

There are other factors that could support eventual

reunification. One would be a weakening of religious

influence in the island’s politics.328 In many other parts

of Western Europe church attendance is low as people become

either more secular in outlook or else more interested in

alternative forms of spirituality. As a result, traditional

Christian groups have less influence on politics than they

once did. Ireland is not immune to such trends. Amending

or dropping the Preamble to the Irish Constitution might be

327 Organisation for Economic Co-operation and Development (OECD), Economic Survey of Ireland, 2006 (March 2006 Policy Brief), available at http://www.oecd.org. 328 See generally, WHITE, supra note 262.

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done to reflect such trends although some resistance might

be expected from certain Irish traditionalists.

Yet another factor, albeit a fairly minor one, could be

Dublin rejoining the Commonwealth. This would essentially be

symbolic in nature rather like dropping the territorial

claim on Northern Ireland in the Irish constitution. Be

that as it may, rejoining the Commonwealth would represent

another shift away from seeing the Irish identity basically

as Irish ethno-nationalism focused largely on simply

opposing things of British origin. Rejoining the

Commonwealth would be a gesture of goodwill towards London

and the Ulster-Scots that might indirectly support eventual

Irish reunification.

The Commonwealth today is a vastly different body from what

it was back in 1949. A number of member states including

Singapore are republics. So, being a republic is no longer

an obstacle to membership. Likewise, being a member of the

Commonwealth and the EU at the same time is no longer unique

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to the UK in view of the recent entry of both Cyprus and

Malta into the EU. Of course, Ireland might wish to be in

the Commonwealth for other reasons such as improving ties

with the many nations in Asia, Africa, and elsewhere that

belong to the Commonwealth. The idea might also appeal to

some Irish politicians as a way to distract voters from

domestic shortcomings. In any event, the Irish Constitution

could be amended to enable Ireland to join the Commonwealth.

That would mean holding a referendum as was done with the EU

although Commonwealth membership does not involve pooling

sovereignty in the way that EU membership does. The

Commonwealth issue has popped up from time to time in Irish

politics, but at the moment it seems to be very much on the

backburner.329

Although there are various factors that have been important

in promoting peace in Northern Ireland, constitutional

change in Northern Ireland and the republic have been major

factors in the peace process. The constitutional dimensions

329 See, e.g., David Jenkins, Ireland and the Commonwealth (February 2000) http://www.iol.ie/~artlynch/c2000/c2000_commonwealth.htm.

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have been important legally, politically, and symbolically.

They will likely continue to be important for the future of

peace in Northern Ireland. Furthermore, they would be

important in any future move towards Irish reunification.

In the next chapter, I will turn to theoretical issues

involving the power of constitutions. The focus will be on

the symbolic power of constitutions to achieve grand

projects and the concept of “constitutional patriotism” with

special reference to divided nations in general and the two

Koreas in particular.

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Chapter 4: Harnessing the Power of the Constitution tofacilitate Reunification

I. Introduction

In Chapter 3, I examined how peace and reconciliation in

Northern Ireland has been promoted by an innovative

political and legal process that included, among other

things, amending the Irish Constitution and making major

changes to the so-called “unwritten constitution” of the UK.

In this chapter, I turn to theoretical issues by considering

the power of constitutions. In particular, I will examine

the concept of constitutional patriotism and the symbolic

power of constitutions. We will see how such power can be

harnessed for realizing grand projects. My main interest

here is on how this power might be used to promote peace,

stability, and possible national reunification, especially

in the context of the two Koreas.

II. Symbolic power

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A constitution typically provides the framework for a

jurisdiction’s legal system. Yet, as important as that role

is, there is more to constitutions than just providing legal

frameworks. Constitutions also possess symbolic power.330

Habermas331 has described how national consciousness

developed in Europe especially during the 19th century.332

According to Habermas, people began to remodel their

loyalties beyond family, village, region, dynastic ruler,

and clerical authority towards a more universalistic

direction. Loyalties shifted from those involving face-to-

face interactions to those involving strangers who were yet

somehow connected. The nation-state became the new focus.

This nation was in a sense artificial because it was

330 Gene R. Nichol, Toward a People’s Constitution 91 Cal. L. Rev. 621, 622 (March 2003). Of course, law and the legal system in general have symbolic power as well. Christopher E. Smith, Law and Symbolism, 1997 Det.C. L. Mich. St. U. L. Rev. 935 (Fall 1997). 331 For an overview of Habermas, see THE HABERMAS READER (William Outhwaite, ed., 1996). See also HABERMAS ON LAW AND DEMOCRACY (Michel Rosenfeld & Andrew Arato, eds., 1998). 332 Juergen Habermas, National Unification and Popular Sovereignty, in HABERMAS AND THE KOREAN DEBATE 103-119, 112-114 (Sang-Jin Han, ed., 1998) [hereinafter NATIONAL UNIFICATION]. See also Juergen Habermas, Civic Society and the Constitutional State, in Id. at 273-288, 280-281; Juergen Habermas, The European Nation State - Its Achievements and Limitations – On the Past and Future of Sovereignty and Citizenship, in Id., at 120-137.

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imagined as a natural community of language and descent with

a constructed historical destiny. People became citizens.

Democracy also spread at this time. In other words, the

nation-state and democracy developed roughly in parallel at

least in much of Europe even though one could exist without

the other and in some cases did so. Constitutionally based

nationhood leads to the realization of what Habermas calls a

civic conception of a nation versus a merely ethnic one.333

In the case of the United States, an American civic religion

featuring the US Constitution especially the Bill of Rights

viz., the first ten amendments helped to foster such a

national consciousness. The Constitution provided a sense

of shared identity to a people with roots in many different

lands and cultures.

The power of constitutions stems at least partly from

historic moments that give birth to new charters and new

social orders. For many countries, a constitution

333 JUERGEN HABERMAS, TIME OF TRANSITIONS 100 (Ciaran Cronin & Max Pensky, eds. & trans., 2006) [hereinafter TRANSITIONS].

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essentially came with or shortly after independence. Yet,

there can be other major historic moments besides national

independence. For example, the Basic Law represented what

was then West Germany’s break with its Nazi past.334 More

recently, the Cambodian Constitution of 1993, which restored

the monarchy, expresses the hope of a new beginning after

the horrors of the Khmer Rouge followed by a period of

foreign domination.335 The current version of South Korea’s

Constitution, which dates from 1987, reflects the country’s

transition from military to civilian rule.336 In a somewhat

similar vein, the South African Constitution of 1996 is a

product of South Africa’s transition from the apartheid

regime to a multiracial democracy.337

A constitution can remind citizens of a key moment in their

nation’s history. Assuming such moment is viewed positively

by many of the citizens, then the constitution itself will 334 Bruce Ackerman, The Rise of World Constitutionalism, 83 Va. L. R. 771, 778-780(May 1997). It should be pointed out here that, in its own way, East Germany also sought to break from its Nazi past by creating a socialist state. 335 Const. of Cambodia, Preamble & art. 1. 336 CHONG, supra note 88. See also WEST, supra note 74. 337 Const. of South Africa.

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probably also be viewed positively. Likewise, if the

constitution is well-regarded, then the moment that lead to

its birth will probably be well-regarded. Hence, each can

reinforce the other.

III. Symbol of nationhood

In the past, states were often equated the national

histories of majority cultures. A contiguous territory was

also an important factor.338 Yet, most nation-states today

are actually heterogeneous. Approximately 8,000 languages

are spoken in the world today, but there are less than 200

nation-states.339 Hence, a multilingual state is the norm

rather than the exception in the world today. Choosing

which language or languages are to be official is an issue

that is normally addressed in the constitution.340

338 William E. Connolly, Democracy and Territoriality, in REIMAGINING THE NATION49-75 (Marjorie Ringrose & Adam J. Lerner, eds., 1993). 339 DOMINIQUE SCHNAPPER, LA COMMUNAUTE DES CITOYENS: SUR L’IDEE MODERNE DE NATION 77 (1994). 340 Singapore, for example, has four official languages. Const. of Singapore, art. 153A.

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Differences in language are closely connected with

differences in culture. Different languages imply cultural

differences. Yet, there can also be different cultures that

speak the same language. Australians and Americans, for

instance, both speak English, but they have different

cultures.

The differences in languages, culture, ethnicity, and

religion all might date back for centuries. Alternatively,

they might be of relatively recent origin due to an influx

of immigrants, migrants, or refugees. Political instability

is often associated with such differences. Civil wars and

insurgencies, both of which can result in mostly civilian

causalities, were common features during the 20th century

and tragically continue to be so into the 21st century.

Yet, a multicultural nation need not be inherently instable.

Certainly, Singapore is a good example of a multicultural

society that has been stable for the past several decades.341

341 See, e.g. MALIK, supra note 174, at 5-8.

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Today all nation-states must face the varied challenges of

and opportunities presented by globalization – linked

financial markets, instant and low cost communications, ease

of travel, and so on. Indeed, some observers have wondered

whether the nation-state and democracy itself can survive

globalization.342 Be that as it may, nation-states are still

very much with us even if some of their traditional powers

have been weaken by worldwide market forces and the rise of

international organizations. The international legal order

continues to revolve around states.343

So, of what relevance is a constitution today? Among other

things, a country’s constitution can serve as an important

symbol of nationhood. In this connection, a constitution can

help to define a people as a nation or, more precisely, as

citizens of a nation-state. This civic identity has the

potential to transcend differences in language, culture,

342 See generally JEAN-MARIE GUEHENNO, THE END OF THE NATION-STATE (Victoria Elliott, trans., 1995). 343 Ian Brownlie, Rebirth of Statehood, in ASPECTS OF STATEHOOD AND INSTITUTIONALISM IN CONTEMPORARY EUROPE 5-7 (Malcolm D. Evans, ed. 1997).

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religion, and so on. In the next section, I will expand

upon civic identity.

IV. Constitutional patriotism

The German political scientist and journalist Dolf

Sternberger is credited with coining the term

“constitutional patriotism”.344 The term was then adopted by

Habermas. 345

In his Between Facts and Norms: Contributions to a Discourse Theory of Law

and Democracy, Habermas, among other things, considers the

impact of the French Revolution on the rise of the modern

state.346 Specifically, revolutionary France became a model

for nation-states in Europe that arose with the decline of

344 Helga A. Welsh, Andreas Pickel, and Dorothy Rosenberg, East and West German Identities: United and Divided?, in AFTER UNITY: RECONFIGURING GERMAN IDENTITIES 103-136, 107 (Konrad H. Jarausch, ed., 1997). 345 See, e.g., JUERGEN HABERMAS, THE POSTNATIONAL CONSTELLATION: POLITICAL ESSAYS 68-76 & 104-107 (Max Pensky, trans., 2001); JUERGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW ANDDEOMCRACY (Appendix I: Popular Sovereignty as Procedure) (Appendix II: Citizenship and National Identity) (William Rehg, trans. 1996) (Studies in Contemporary German Thought) [hereinafter BETWEEN FACTS AND NORMS]. 346 BETWEEN FACTS AND NORMS, supra note 346, at 465.

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feudalism and the rise in both national consciousness and

social integration. The nation-state would replace small

fiefdoms, city-states, and multinational empires albeit

sometimes at the expense of minority groups. The French

experience eventually inspired nations beyond Europe.

However, according to Habermas, some states like the United

States and the former Soviet Union did not neatly fit into

the nation-state model because they were multiethnic

societies to a greater extent than most countries in Europe.

In Habermasian constitutional patriotism, a shared political

identity inspired by not just any constitutional text,

governmental framework, or legal system, but rather by a

constitution that effectively protects human rights can

transcend differences in ethnicity, language, culture, and

religion fostering peaceful coexistence under the guarantee

of equal rights. Constitutional patriotism, as a new

political culture, moves beyond traditional, often majority

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ethnic group-based, nationalism or ethno-nationalism towards

civic nationalism and even cosmopolitanism.347

However, Habermas does acknowledge that national traditions

are still important when it comes to constitutional

patriotism. Universal ideals of democracy and human rights

are interpreted in the context of a particular nation’s

history and culture. Indeed, according to Habermas,

reference to a nation’s historical experience is actually

necessary here.348

347 Naturally, some are critical of the notion of constitutional patriotism. David Abraham is one such critic of Habermas and constitutional patriotism. David Abraham, Constitutional Patriotism, Citizenship, and Belonging in America and Germany, 16 Temp. Pol. & Civ. Rts. L. Rev. 457 (Spring 2007). For a general review of some of the criticisms of constitutional patriotism, see Jan-Werner Mueller, Three Objections to Constitutional Patriotism 14 Constellations: An International Journal of Critical and Democratic Theory 197 (June 2007), available at, http://www/princeton.edu/~jmueller/Constellations-CP-Three%20Objections-JWMueller-May2006.pdf (posted on May 2006). Of course, Habermas, who has written on a wide range of topics over a period of several decades, has naturally faced other more general critics like the Palestinian-American literary theorist Edward W. Said, the French social theorist Michel Foucault, and a variety of feminists. Steve Robinson, The Jürgen Habermas Web Resource (last visited May 4, 2008) http://www.msu.edu/user/robins11/habermas/main.html. 348 “Constitutional patriotism can neither take shape in social practicesnor become the driving force for the dynamic project of creating an association of free and equal persons until they are situated in the historical context of a nation of citizens in such a way that they link up with those citizens’ motives and attitudes.” BETWEEN FACTS AND NORMS,supra note 346, at 499. Constitutional patriotism is thus something thatcan be tailored to different legal traditions (common law, civil law, etc.) and also to different formal models of democracy (parliamentary

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Habermas uses both Switzerland and the United States349 as

examples of multicultural countries where forms of

constitutional patriotism have already been realized.350 To

Habermas, Switzerland along with the United States show

that: “a political culture in which constitutional

principles can take root need by no means depend on all

citizens’ sharing the same language or the same ethnic and

cultural origins.”351 Moreover, “[a] liberal political

culture is only the common denominator for a constitutional

patriotism (Verfassungspatriotismus) that heightens an awareness

of both the diversity and the integrity of the different

forms of life coexisting in a multicultural society.”352

Switzerland and the United States have survived as

multicultural entities while many other countries with

systems, presidential systems, etc.). 349 BETWEEN FACTS AND NORMS, supra note 346, at 500. 350 For a particularly American take on constitutional patriotism, see Frank I. Michelman, Morality, Identity, and “Constitutional Patriotism,” 76. Denv. U. L. Rev. 1009 (1999). 351 BETWEEN FACTS AND NORMS, supra note 346, at 500. 352 BETWEEN FACTS AND NORMS, supra note 346, at 500. (Emphasis in the original).

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diverse populations have either failed as states or else

have faced long periods of considerable political

instability including civil wars along ethnic, cultural,

religious, or linguistic fault lines. Merely having some

sort of charter on paper is not enough. What is needed is a

constitution that effectively protects democracy and human

rights thorough some form of the rule of law. Such legal

protection should ensure a relatively peaceful and stable

society.

Habermas is well-aware that his native Germany has become

increasingly multicultural since the 1960s with the arrival

of “guest workers” (Gastarbeiter) from Turkey and elsewhere.353

Many of these people have now settled in Germany and formed

what are essentially permanent communities. Other parts of

Western Europe have become decidedly multicultural as well

through immigration from Eastern Europe, Africa, and Asia.

Hence, something beyond simple ethno-nationalism is needed. 353 These groups came mostly as “Guest Workers” (Gastarbeiter) during the economic boom after World War II. John S. Bendix, Germany: The Foreign Worker Issue, in ENCYCLOPEDIA OF MODERN ETHNIC CONFLICTS 85-92 (Joseph R. Rudolph, Jr., ed. 2003).

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Furthermore, genocide in places like Rwanda and the former

Yugoslavia during the 1990s tragically demonstrate the

destructive potential of ethno-nationalism if left

unchecked.

Constitutional patriotism, which is based upon an

understanding of democracy and human rights, can be

instilled through education. Certainly, in the United

States many schoolchildren are exposed to certain aspects of

the U.S. Constitution in history and social studies classes.

This develops a sense of constitutional patriotism at any

early age. The U.S. Constitution is a part of the American

identity that is shaped through education.

Popular culture can play a role as well in fostering

constitutional patriotism. For example, some of the

procedural rights of criminal defendants protected under the

U.S. Constitution are best known to average Americans

through countless TV programs and movies that feature the

workings of the American criminal justice system.

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Admittedly, such portrayals in police dramas are often

inaccurate or at least misleading in various details.

Nevertheless, key provisions like the right against self-

incrimination354 and the right to counsel355 are communicated

while the masses are being entertained.

Yet, Habermas does not limit himself to the nation-state.

With the development of the EU, he argues for a pan-European

constitution as well.356 In this connection, Habermas argues

that a type of pan-European constitutional patriotism and

identity should be developed for the EU as a whole.357 He

distinguishes between three broad camps namely, the Euro-

sceptics, Neo-conservatives, and Euro-federalists. Euro-

sceptics are those who are highly critical of the vision of

354 Miranda v. Arizona, 384 U.S. 436 (1966).355 Gideon v. Wainwright, 372 U.S. 335 (1963).356 TRANSITIONS, supra note 334, at 89-109. 357 Juergen Habermas, The European Nation-State and the Pressures of Globalization, in GLOBAL JUSTICE AND TRANSNATIONAL POLITICS: ESSAYS ON THE MORAL AND POLITICAL CHALLENGES OF GLOBALIZATION 217-234 (Pablo De Greiff & Ciaran Cronin, eds., 2002); Juergen Habermas, On Legitimation through Human Rights, Id., at 197-214; Juergen Habermas, Towards a United States of Europe (posted on March 2006) http://www.signandsight.com/features/676.html; JUERGEN HABERMAS, THE DIVIDED WEST 67-82 (Ciaran Cronin, ed. & trans., 2006). Seealso, Andrew Buchwalter, Habermas, Hegel, and the Concept of Law, in DISCOURSE AND DEMOCRACY: ESSAYS ON HABERMAS’S BETWEEN FACTS AND NORMS 129-152 (Rene von Schomberg & Kenneth Baynes, eds., 2002) (SUNY Series in Social and Political Thought).

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the EU preferring national sovereignty. For example, Euro-

sceptics opposed the creation of the euro as a common

currency.

Neo-conservatives, or market liberals, view the EU primarily

as a common market and hence a means towards regional

economic integration, enhancing competition, and even

further privatization. However, Euro-federalists seek to

deepen political ties and to address the alleged “democracy

deficit” in the EU by strengthening the role of the European

Parliament and so on. On the issue of an EU Constitution,

Habermas takes an essentially Euro-federalist position.

The EU may eventually get a constitution in some form

despite recent setbacks.358 Be that as it may, with now 27

member states359 and the possibility of further enlargement,

358 During 2006, the text of the EU Constitution was rejected in referenda held in France and the Netherlands. EU, Europa: A Constitution for Europe (last visited July 3, 2007)http://www.europa.eu.int/constitution/referendum_en.htm. 359 Bulgaria and Romania joined the EU in 2007 bringing the total number of member states to 27. EU, Europa: The EU at a glance: European countries (last visited July 3, 2007)http://europa.eu/abc/european_countries/index_en.htm.

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something is needed to unite the diverse peoples of the EU.

Arguably, a common currency alone is not enough.360

But, how might constitutional patriotism impact divided

nations? Can constitutional patriotism help in the process

of reunification? Can it foster a new sense of national

identity? What of Ireland and Korea?

Habermas admits that a sense of shared cultural identity is

clearly important in the case of divided nations.361 The

longing for reunification stems in part from a sense of

shared heritage. Yet, the German experience, which I

discussed in Chapter 2, has shown that even after

reunification significant differences remain between East

and West. Constitutional patriotism has the potential to

facilitate true reunification and to foster a new national

identity. Besides mere ethnic bonds, the people in a 360 Indeed, at the moment, some EU member states still have not adopted the euro. The UK is a good example with its retention of the pound sterling. 361 Habermas maintains that reuniting divided nations can be a legitimateobjective yet the objective is not neutral regarding the political form in which reunification is realized. NATIONAL UNIFICATION, supra note 333, at 113.

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reunified nation can share in a common political culture

based on democracy, the rule of law, and human rights. The

new identity is perhaps post-national. At the very least it

is not dangerously

ethno-national.

A possibly future reunified Ireland with two major ethnic

communities plus a small immigrant population would be by no

means unusual given today’s reality of multicultural nation-

states in Europe and elsewhere. Yet, there would be

challenges. Certainly, it would be a change for the republic

that has been predominately Catholic and Irish to become

more significantly multi-cultural and inclusive.

Although there were moments in Irish history when many

Catholics and Protestants alike supported seeking

independence from the United Kingdom such as the United

Irishmen revolt of the late 18th century, Irish nationalism

during the 19th century became increasingly linked with

Catholicism and an Irish ethnic identity thus becoming

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unattractive to many Protestants. Likewise, there have been

some (mostly vain) attempts by certain Unionists to appeal

to the nationalist minority in the North as well as efforts

at establishing various new cross-community groups.362

A form of island-wide constitutional patriotism could

greatly benefit Ireland and help to heal the wounds of past

conflicts. It would give all the peoples of the island a

new national/cosmopolitan (or even post-national) identity.

Already some efforts have been made in this direction.

Notably, as I discussed in Chapter 3, there are the new

Articles 2 and 3 of the Irish Constitution that were

approved by voters in a referendum held in the republic

after the Good Friday Agreement. These articles employ

inclusive language to reach out to Ulster-Scots community in

Northern Ireland. However, to further encourage island-wide

constitutional patriotism it would be sensible to tone down

362 John McGarry, Northern Ireland, Civic Nationalism, and the Good Friday Agreement, in NORTHERN IRELAND AND THE DIVIDED WORLD: POST-AGREEMENT NORTHERN IRELANDIN COMPARATIVE PERSPECTIVE 109-136 (John McGarry, ed. 2001); Desmond M. Clarke, Nationalism, the Irish Constitution, and Multicultural Citizenship, 51 NORTHERN IRELAND LEGAL Q. 100 (Spring 2000).

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or eliminate some of the Irish nationalist and Roman

Catholic religious elements currently found elsewhere in

Irish Constitution especially in the Preamble.

Meanwhile, if the Habermasian vision of pan-European

constitutional patriotism could be realized, then that would

also benefit the peoples of the island of Ireland. Both

Ireland and the United Kingdom are already in the EU. So

far, however, mutual EU membership alone has not had as much

positive impact on solving Northern Ireland’s lingering

communal woes as one might expect. Something more is

needed. Pan-European constitutional patriotism, if realized,

would improve the situation.363

Unlike so much of the world today, the two Koreas are

essentially homogenous states. There are hardly any

minorities in South Korea other than a dwindling Overseas

Chinese community and relatively transient pool of foreign

363 Potentially, pan-island constitutional patriotism and pan-European constitutional patriotism can develop jointly and perhaps reinforce one another.

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residents. North Korea is, if anything, even more homogenous

than South Korea. All Koreans speak the same language and

share a common cultural heritage shaped largely by an

eclectic mix of Shamanism, Confucianism, Buddhism, and, to a

lesser extent, Taoism.364

Yet, Koreans have been divided for six decades in terms of

North and South. In that time, differences have arisen not

only in politics and economics, but also, to varying

degrees, in language, music, fashion, and the like. As such,

a future reunified Korea would face considerable

difficulties in fostering a sense of true national unity.

There seems to be a growing awareness, at least in South

Korea, of the serious challenges involved.365

Here the German experience is informative. Before the

reunification of Germany, it appears that many East Germans 364 The Taoist influence can be seen on the South Korean flag with its yin-yang symbol and diagrams from an Ancient Chinese book, the I Ching. Christianity has also had some impact on Korea during the past century or so. 365 See, e.g., Young-Sun Lee, The Cost and Financing of Korean Unification, in 4 CONSTITUTIONAL HANDBOOK ON KOREAN UNIFICATION 1125-1163 (Sung-Hee Jwa, et al, eds. 2002).

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identified more with being German than with being

specifically East German.366 This was so despite the

official East German position that the GDR was a distinct

nation due to its socialist system and the incompatibility

of that system with the capitalist system of the FRG.367 Yet,

in the years since German reunification, there has been

considerable discussion of Die Mauer im Kopf, or “The wall in

one’s mind.” This popular expression refers to the lingering

psychological and cultural divide between Germans from East

and West.368 Hopefully, a true sense of German

constitutional patriotism can help to bridge that gap. Of

course, pan-European constitutional patriotism would also be

desirable in this context.

In light of the certain difficulties in reuniting Koreans

into a common sense of nationhood, a form of Korean

constitutional patriotism should be developed. This would

366 DAVID CHILDS, THE FALL OF THE GDR: GERMANY’S ROAD TO UNITY 30-32 (2001). 367 PANORAMA DDR, GDR: 100 QUESTIONS 100 ANSWERS 27-29 (1978). See also GDR Const. of 1974, art. 1. 368 Jean E. Abshire, Interpretive Essay, in EVENTS THAT CHANGED GERMANY 191-204, 199 (Frank W. Thackeray, ed. 2004).

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indeed be a switch for Koreans. Traditionally, Korean

nationalism has been ethnically based focusing on a

construct of ethnic “purity” and cultural difference from

neighbouring peoples especially the Japanese who had been

the colonial power in Korea during the early 20th century.

V. Reunification as a goal

During the past two decades the world has witnessed some

opposing trends. Regional integration and globalization have

brought countries increasingly together yet at the same time

secessionist movements abound.369 The perception of

significant differences in terms of ethnicity, language,

religion, history, and economic standing are among the

factors that fuel such movements. A number of these

movements have proven successful as the recent independence

of Kosovo from Serbia and the subsequent recognition of

Kosovo by certain countries proves.370 However, divided 369 See generally, Christopher Waters, Law in Places that Don’t Exist, 34 Denv. J. Int’l L. & Poly 401 (Fall 2006). 370 Peter Finn & Peter Baker, Kosovo Gains Recognition by U.S., Some in Europe, The Washington Post, February 19, 2008, A09, available through LexisNexis.

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nations can be considered as a special category.

Reunification rather than secession tends to be the agenda

item for divided nations.

For divided nations, reunification is a goal that is often

enshrined in the constitutions of the states concerned. I

consider the goal of reunification elsewhere in this thesis.

So, a detailed discussion is not appropriate here. However,

one can quickly sense the apparent importance of the goal by

looking at a few preambles – those especially symbolic parts

of many constitutions. Preambles serve partly as statements

of intent. They set forth reasons for establishing a new

order. The tone can be quite stirring with references to

past struggles.

For divided nations, reunification might be mentioned in

preambles. In this connection, it should be noted that a

preamble should, in some way, reflect the yearnings of the

people and not merely those of the drafters. Otherwise, it

would simply be an elite statement.

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The South Korean Constitution speaks of the mission of

peaceful unification of the homeland in its Preamble. This

is a vision that has been supported by many ordinary South

Koreans. The Preamble of the North Korean Constitution makes

some reference to Korean reunification as well albeit in the

context of praising the late Kim Il Sung and also promoting

the official North Korean Communist ideology of Juche.371

However, given the closed nature of the regime in Pyongyang,

it is difficult to determine how ordinary North Koreans

actually feel about either Kim Il Sung or his son, Kim Jong

Il, who serves as the current leader of North Korea.372

371 The current North Korean Constitution is especially unusual in that its preamble is largely a eulogy. The preamble and other parts of the constitution repeatedly refer to Juche. For a South Korean analysis of the North Korean constitution, see Dae-Kyu Yoon, The Constitution of North Korea: Its Changes and Implications, 27 Fordham Int'l L.J. 1289 (April 2004). See also Chang Myung-Bong, Bukhan Heonbeop 50 Nyeon [Fifty Years of North Korean Constitutions], in BUKHANBEOP 50 NYEON, GEU DONGCHYANG GWA JEONGMANG [FIFTY YEARS OF NORTH KOREAN LAW AND RECENT DEVELOPMENTS] 43-73 (Lee Jang-Hie ed. 1999) [In Korean]. 372 Human rights abuses are alleged to be widespread in North Korea. Grace M. Kang. A Case for the Prosecution of Kim Jong Il for Crimes against Humanity, Genocide, and War Crimes, 38 Colum. Human Rights L. Rev. 51 (Fall 2006) [hereinafter KANG].

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Meanwhile, the Preamble of the Constitution of the People’s

Republic of China refers to reunification in terms of Taiwan

belonging to China. This does seem to represent the

sentiments of a significant portion of the population on the

Mainland. Of course, some on the island of Taiwan also

favor reunification or at least closer ties with the

Mainland while others prefer the status quo or even de jure

Taiwanese independence.373

The recent return of the KMT to power could be interpreted

as, among other things, a mandate against a formal

declaration of Taiwanese independence.374

373 Yung Wei, Chartering Peaceful Relations between Taiwan and Mainland China: From Integration to Intra-National Commonwealth, in NEW INTERNATIONAL ORDER AND FUTUREOF DIVIDED NATIONS 33-53 (Hak-joon Kim & Gottfried-Karl Kindermann, eds.2003). Some supporters of the Democratic Progressive Party (DPP) have agitated for a formal declaration of Taiwanese independence. The DDP’s website compares the decades of martial law imposed by the KMT on Taiwanwith colonialism. DDP, Democratic Progressive Party (last visited April 28, 2008) http://www.dpp.org.tw/. However, during the years when the DPP’s Chen Shui-ban actually ruled Taiwan no such declaration was actually made. Nevertheless, Taipei’s relations with Beijing were often tense while theDDP was in power. Philip Yang, Cross-Strait Political and Military Relations: 2000-2001 Inter-Election Developments, in NORTHEAST ASIAN REGIONAL SECURITY ORDER AND STRATEGIC CALCULUS ON THE TAIWAN STRAITS 101-118 (Woosang Kim, ed., 2003); SHENG LIJUN, TAIWAN’S NEW PRESIDENT AND CROSS-STRAITS RELATIONS (Institute of Southeast Asian Studies, Trends in Southeast Asia, No. 11,September 2000). 374 Denny Roy, Taiwan politics: Back to the good old days under the KMT, The Japan Times (Tokyo), 3 April 2008, available through LexisNexis.

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By contrast, Taiwan’s Constitution is basically a modified

version of the old Republic of China Constitution, which

dates from the era when the Nationalists ruled the Chinese

Mainland.375 Reunification with the Mainland is not a stated

constitutional objective for Taiwan. However, there is a

basic legal framework under ROC law for Taiwan’s interaction

with the Mainland.376

Likewise, the Constitution of Cyprus, dating from the era

when the island was unified, makes no reference to the

current de facto division of the island, which since 1974

has been split along the Attila Line or Green Line, into

Greek Cypriot and Turkish Cypriot entities with a UN buffer

zone.377 In addition to the United Nations Force in Cyprus 375 An English translation of the ROC Constitution as amended can be found at:Government Information Office, Republic of China, Constitution of the Republic of China (last visited April 9, 2008) http://www.gio.gov.tw/info/news/constitution.htm#sec1 and http://www.gio.gov.tw/info/news/additional.htm. 376 An Act Governing Relations between Peoples of the Taiwan Area and theMainland Area (ROC, 1992). An English translation of this statute prepared by the Mainland Affairs Council of the Executive Yuan can be found at, http://www.mac.gov.tw/english/index1-e.htm. 377 ANDERSON, supra note 27, at 220-222; Joseph R. Rudolph, Jr., Cyprus: Communal Conflict and the International System, in ENCYCLOPEDIA OF MODERN ETHNIC

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(UNFICYP), there are two British military bases, Akrotiri

and Dhekelia, which are collectively known as the Sovereign

Base Areas (SBAs), under a 1960 agreement between the UK and

Cyprus.378 The northern edge of Dhekelia runs along a part

of the Attila Line, but the SBAs are both in the south. The

presence of the SBAs and UNFICYP seemed to have helped

prevent any large scale inter-communal fighting on the

island since the 1970s.

Yet, by keeping what are essentially pre-division

constitutions Taiwan and Cyprus demonstrate another

approach. Taiwan was portrayed as being “Free China” versus

“Red China” across the strait.379 On Taiwan the hope among

some had been that the Mainland would someday be regained by

the Nationalists. Of course, very few hold that view today.

With the rise of China as a world power it has become

utterly unrealistic.

CONFLICTS 55-60 (Joseph R. Rudolph, Jr., ed., 2003). 378 ANDERSON, supra note 27, at 220-222; MOORE, & PUBANTZ, supra note 36, at 78-79. 379 The image of Taiwan as “Free China” is rarely encountered today. Forexample, the Taipei-based monthly English magazine that had originally been called the FREE CHINA REVIEW has become simply the TAIWAN REVIEW.

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Meanwhile, on Cyprus there is arguably a better chance at

reunification given the relatively weak position of Turkish

Republic of Northern Cyprus, which is a small entity and

which remains something of a diplomatic pariah recognized

only by Turkey at the time of writing.380 Both parts of

Cyprus are fairly open societies politically. Also, the two

zones have market economies. The recent election of a new

Greek Cypriot President appears to be an opportunity for a

fresh approach towards relations with the TRNC.381

Having reunification as a goal in one’s constitution can

motivate politicians to take concrete measure towards its

eventual realization. Although it is not a guarantee, the

mere existence of a constitutional imperative for

reunification can potentially be used to remind political

actors of the issue from time to time.

380 As this is being written, only Turkey has recognized the TRNC. No love lost: The two halves of Aphrodite’s island remain at loggerheads THE ECONOMIST (May 31, 2008) (Special report on EU enlargement, pp. 8-9). 381 Tabitha Morgan, Cyprus election winner aims to heal divide, The Daily Telegraph (London), 25 February 2008, at 17, available through LexisNexis.

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The constitutional imperative can also inspire the people

towards the grand project of reunification.382 To use the

American vernacular, reunification becomes a “motherhood

issue.” Generating popular support for reunification via

constitutional provisions arguably becomes more important as

the period of national division starts to span decades

rather than years. As time passes the yearning for

reunification weakens for some and increases for others.

Many members of the older generations may hope to see

reunification before they die. For the youth, however,

reunification might be more abstract as they grew up with

the status quo. Some young people are likely to have a

romantic view of life in the other entity or even life under

some future reunited state. Admittedly, for others they

might not simply care much about reunification even if they

might be reluctant to say so publicly.

382 True, the opposite is also possible. Reunification might inspire a new constitution. However, that is not necessarily the case. An existing constitution might be used with little or no modification.

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Now that we have seen how reunification can be a

constitutional goal, it is appropriate to compare and

contrast the different ways to this goal.

VI. Varying constitutional approaches to reunification

Certainly, there are different approaches towards seeking

reunification as well as different visions of what a

reunited country might look like. Some constitutions might

declare unification as a goal yet can be vague by the means

of achieving the goal. They do not set out a detailed plan

for reunification. Such plans are perhaps more in the realm

of diplomacy. This is certainly true of both the North and

South Korean constitutions.

However, sometimes a constitution might contain one or more

provisions that provide a specific basis for reunification.

For instance, the former West German Basic Law contained two

different provisions, Article 23 and Article 146, which

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could have legally supported complete reunification383 with

East Germany.384 Under the old385 Article 146,386 German

reunification could have been achieved by means of drafting

a new constitution for all of Germany. This approach had

been favoured by many on the political Left in West Germany

especially the then opposition Social Democrats.

By contrast, under the old Article 23,387 German

reunification could have been achieved by simply expanding

383 At the time, there were also early proposals for confederation and a “contractual community.” 384 See, e.g., Mathew W. Pile, Ten years of Basic Law Amendments: Developing a Constitutional Model of German Unification, 34 VANDERBILT J. TRANSNATIONAL L. 635(May 2001) http://law.vanderbilt.edu/journal/34-03/Pile.htm#_ftn38. See also Klaus H. Goetz and Peter J. Cullen, the Basic Law after Unification: Continued Centrality or Declining Force?, in CONSTITUTIONAL POLICY IN UNIFIED GERMANY 5-46 (Klaus H.Goetz & Peter J. Cullen, eds., 1995); Daniel V. Friedheim, Accelerating collapse: The East German road from liberalization to power-sharing and its legacy, in BETWEEN STATES: INTERIM GOVERNMENTS AND DEMOCRATIC TRANSITIONS 160-178 (Yossi Shain & Juan J. Linz, eds., 1995). 385 Both articles have been wholly amended. So, this analysis focuses onthe old i.e. pre-reunification articles. 386 The provision read: “This Basic Law shall cease to be in force on the day on which a constitution adopted by a free decision of the Germanpeople comes into force.” Basic Law, Federal Republic of Germany, art. 146 (1949 version). 387 The provision read: “For the time being, this Basic Law shall apply in the territory of the Laender of Baden, Bavaria, Bremen, Greater Berlin, Hamburg, Hesse, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Schleswig-Holstein, Wuerttemberg-Baden, and Wuerttemberg-Hohnenzollern. In other parts of Germany it shall be put into force on their accession.” Basic Law, Federal Republic of Germany, art. 23 (1949 version).

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the territory of the Federal Republic388 with the admission

of the new states (Laender)389 in the East. So, instead of

East Germany entering as a whole entity, five new Leander390

along with East Berlin391 joined the existing structure.

This fast-track method was favoured by West Germany’s then

conservative government under Chancellor Kohl. Ultimately,

it was the method actually employed along with a set of two

inter-German treaties392 and the treaty restoring full

sovereignty to Germany from the lingering sovereignty

exercised by the Four Powers (Soviet Union, United States,

United Kingdom, and France) that had occupied Germany at the

end of World War II.393 Among other things, the Article 23 388 There was a precedent for using Article 23 with the return of Saarland to Germany in 1957. Before that time Saarland had been under French administration although the vast majority of the state’s population was culturally German. 389 The Eastern Laender had been re-established shortly before reunification. MODEL ET AL, STAATSBUERGER-TASCHENBUCH 51 (2000). For most of East Germany’s history, the republic was a highly centralized entity. 390 The five newly created Laender were Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony Anhalt, and the Free State of Thuringia. 391 East Berlin and West Berlin merged into one city-state, Berlin, with German reunification. Berlin is now the federal capital. 392 The two German reunification treaties are the Monetary, Economic, andSocial Union Treaty (May 18, 1990) & Unification Treaty (August 31, 1990). 393 Treaty on the Final Settlement With Respect to Germany (September 12,1990).

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approach simply expanded the territory of the then European

Community (EC), now the European Union (EU), by expanding

the territory of an existing EC member state. Hence, there

was no need for East Germany to be formally considered as a

candidate for EC membership. Nevertheless, special

provisions were made for the East German Laender to adjust to

EC regulations.

In the German case, East Germany was essentially absorbed

into West Germany. At the time, many Germans wanted a quick

resolution. Nevertheless, the rapid reunification of

Germany has come at a tremendous cost. Higher taxes and

higher unemployment especially in the East can both be

linked to German reunification even a decade and a half

later. Social divisions still persists as was mentioned

earlier. Germany has been reunified legally and politically,

but total social integration has not yet been achieved.

Much of this present thesis examines the relevance of the

Northern Ireland Peace Process to the problem of Korean

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reunification. My basic argument is that the Good Friday

Agreement that came out of the Northern Ireland Peace

Process can serve as a model for Koreans to adapt to their

needs for easing tensions, improving ties, and, ultimately,

realizing reunification of the peninsula. Ireland, even

though the island remains divided and also despite the fact

that reunification is not a necessary outcome of the peace

process in Northern Ireland, offers hope for Koreans. As

such, Ireland is potentially a better model for Koreans than

Germany.

In the next section, I will turn to how constitutions can be

tapped. More exactly, I will consider how the symbolic

power of the Korean constitutions can be positively employed

VII. Harnessing constitutional power for Korea

Habermasian constitutional patriotism need not be limited to

Germany or even Europe. It could be developed in Korea and

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utilized for the cause of Inter-Korean reconciliation and

possible Korean reunification.

Both the Korean constitutions already have symbolic power

for their respective countries. Both constitutions could be

creatively used to facilitate a series of political

negotiations, confidence-building measures, public

participation, implementation, and eventually the goal of

reunification roughly along lines of the inclusive approach

to easing tensions and power-sharing found in the Northern

Ireland Peace Process. However, in order to do so, certain

amendments should be made.

Amending the South Korean Constitution to ease tensions

could start with the territorial claim.394 As I have

discussed elsewhere in this thesis, Article 2 claims the

entire Korean Peninsula and its offshore islands for South

Korea. This implies that North Korea is not a legitimate

394 Damien P. Horigan, Territorial Claims by Divided Nations: Applying the Irish Experience to Korea 10 Gonz. J. Int’l L. 2 (2006), available at http://wwww.gonzagajil.org.

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entity. Ireland had a similar claim on Northern Ireland, but

it has since drop its claim. Article 2 is not the only

thing that should be changed, but it is a good place to

start. Dropping the territorial claim should help to reduce

tensions with the North and encourage greater inter-Korean

cooperation in various fields.

Changes need to be made to the North Korean Constitution as

well. Article 1 of the North Korean Constitution claims that

North Korea represents the interests of all the Korean

people. This implies that South Korea is not a legitimate

entity although the provision is not a territorial claim per

se.

In the long run, there could be a new pan-Korean

Constitution for a reunified state. While the possibility

of the sudden absorption of North Korea under the current

South Korean Constitution or, much less likely, South Korea

under the North Korean Constitution cannot be completely

ruled out, such absorption seems unlikely at present.

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Moreover, it could be undesirable as it might result in

considerable social unrest along with political and economic

instability for an extended period of time. A peaceful,

cautious, and hopefully democratic process would be

preferred.

While it is anyone’s guess what a future pan-Korean

Constitution would actually look like, we can at least

envision the process that might be used. Ideally, the text

would be negotiated by both sides. A joint drafting

committee might be established. The proposed text could

then be voted upon either by both governments or directly by

the Korean people with referenda to be held in North and

South. This assumes that the political actors perceive that

there is enough time for such a process. As was mentioned

previously, in the German case, a fast-track approach was

taken. That was due largely to uncertainty over the future

of the Soviet Union and Eastern Europe as a whole. Korea

might have the luxury of more time.

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In the next chapter, I will examine how the process of

striving towards peace in Northern Ireland, which included,

among other things, significant constitutional change in

both the UK and Ireland, could be adapted and applied to the

two Koreas.

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Chapter 5: Applying the Irish Experience to thetwo Koreas

I. Introduction

In Chapter 4, I considered how the power of a constitution,

much of which is symbolic in nature, can be harnessed to

facilitate grand projects including national reunification.

The concept of constitutional patriotism, as developed by

Habermas, explains how a constitution can foster a sense of

national identity. For previously divided nations, a form

of constitutional patriotism can help to forge a sense of

inclusiveness after formal reunification takes place.

In this chapter, I will argue that the Irish experience,

which was described in Chapter 3, can be creatively applied

to the two Koreas. Of particular interest is the process

itself. The various steps taken to reduce tensions in

Northern Ireland can, with some modification, be applied to

the Korean Problem.

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II. General considerations

While I argue that the Irish experience can be applied to

the two Koreas, logically, one might ask if the Irish indeed

could also learn from the Koreans. Unfortunately, however,

given the extreme nature of national division in Korea with

the two Koreas technically still in a state of war,395 sadly,

there doesn’t appear to be anything positive that the Irish

could learn from the Koreans in this area. Hence, I will

only be looking at how the Irish experience might apply to

Korea rather than the other way around.

Reflecting on the partition of Ireland along with the

Northern Ireland Peace Process that resulted in the Good

Friday Agreement396 of 1998397 offers a fresh way of looking

at the constitutional aspects of the Korean Problem and

indeed at the plight of divided nations generally.398 The

395 See generally, LYOU, supra note 40. 396 Officially, the Good Friday Agreement is known as “An Agreement Reached at the Multi-Party Talks on Northern Ireland.” 397 Northern Ireland Act, 1998, ch. 47 (U.K.). 398 Notable academic works on the Northern Ireland Peace Process include the following: AUSTEN MORGAN, supra note 8; ASPECTS, supra note 270; NORTHERN IRELAND AND THE DIVIDED WORLD: THE NORTHERN IRELAND CONFLICT AND THE GOOD FRIDAY AGREEMENT IN COMPARATIVE PERSPECTIVE (John McGarry

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key to the peace process has been a creative legal and

political compromise that can be viewed as being generally

acceptable to Dublin, London, and the two main communities

in Northern Ireland itself.399 However, it has certainly not

been all smooth sailing since 1998. The provincial

government was suspended in 2000400 and then again in 2002.401

Furthermore, removing paramilitary violence from Northern

Ireland politics had long been a sticking point.402

Fortunately, however, the IRA now appears to have put its

arsenal beyond use.403

ed., 2001); Donal O’Donnell, Constitutional Background to and Aspects of the Good Friday Agreement – A Republic of Ireland Perspective, 50 NORTHERN IRELAND LEGAL Q. 76 (Spring 1999). Another important source is the special April 1999 issue of the Fordham International Law Journal that was devoted to the “Northern Ireland Peace Agreement.” 399 Of course, democracy has been an important factor in the Northern Ireland Peace Process. Incidentally, democracy was also important in German reunification. What role democracy might eventually play in Korean reunification remains uncertain. 400 Northern Ireland Act, 2000, ch. 1 (U.K.). 401 Northern Ireland Assembly Elections Act, 2003, ch. 3 (U.K.); NorthernIreland Assembly (Elections and Periods of Suspension) Act, 2003, ch. 12(U.K.). 402 Northern Ireland Arms Decommissioning (Amendment) Act, 2002, ch. 6 (U.K.). This statute extended the amnesty that had been established in 1997. Northern Ireland Arms Decommissioning Act, 1997, ch. 7 (U.K.). 403 Report of the Independent International Commission on Decommissioning, 26 September 2005.

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Despite some setbacks during the past several years, the

Northern Ireland Peace Process remains relevant to the

Korean situation. The essence of the Irish experience has

been a vision based on the principles of tolerance,

cooperation, peace, and democracy. It is a pragmatic vision

that goes beyond approaches used in the past for similar

conflicts that typically involve proposing a federal

solution or some form of confederation. Instead, the Irish

model is one of structured cross-community power-sharing

within the province along with support from outside the

province viz. from the governments in London and Dublin.

Like any model, the Irish model would have to be carefully

adjusted to the distinctive aspects of the Korean situation.

Yet, that alone does not take away from the basic appeal of

the model.

III. The Irish Model

The Irish model, which was introduced in Chapter 3, can be

divided into at least four different stages. The first

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stage of the model would be that of political negotiations.

A series of political negotiations lasting about two years

preceded the Good Friday Agreement.404 Some were carried out

with public knowledge while others were carried out in

secret.405 Initially, they involved negotiations among

parties within the same community as well as negotiations

across the communal divide and also between the British

government and various players.406 Eventually, all the major

groups involved in the conflict were represented at the

talks in Belfast that led to the Good Friday Agreement.407

Ensuring a high degree of inclusiveness in the talks was a

key element in reaching an agreement that could enjoy broad

support within Northern Ireland as well as in the rest of

the UK and in the republic.

Once a political agreement was reached it was time for the

second stage, which involved various confidence building

measures. This involved matters like the release of people

404 Rick Wilford, Preface, in ASPECTS, supra note 270, at v. 405 PBS Home Video, Endgame In Ireland (2 videos in VHS format) (2002). 406 BEW, supra note 202, at 219-232. 407 BEW, supra note 202-, at 232-236.

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who were viewed by one side or another of the communal

divide as being political prisoners i.e. members of the

various paramilitaries that were serving prison sentences,408

the commitment towards setting up human rights commissions

for Northern Ireland and Ireland,409 and the proposal for

amending the Irish Constitution.410

The third stage involved the referenda on the Good Friday

Agreement in both parts of the island with the referendum

held in the republic also including the proposed amendments

to the Irish Constitution.411 This stage got the voters

directly involved in both parts of the island. Moreover, in

the republic, the public could focus on the constitution and

the power of the constitution.

The fourth stage has been the follow-up. Governmental power

was devolved to Northern Ireland and new cross-border

408 Northern Ireland (Sentences) Act, 1998, ch. 35 (U.K.). 409 See generally, Colin Harvey, Human Rights and Equality in Northern Ireland, 57 NORTHERN IRELAND LEGAL Q. 215 (Spring 2006). 410 Articles 2 and 3 of the Irish Constitution of 1937, which made a claim on Northern Ireland, were ultimately amended. 411 BEW, supra note 202, at 237-238.

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institutions were established.412 A new police force, the

Police Service of Northern Ireland, was created in 2001 to

replace one, the Royal Ulster Constabulary, which had been

mistrusted for alleged bias by many members of the minority

in Northern Ireland.413

Admittedly, devolution has proven to be an on again and off

again affair in Northern Ireland (due to suspensions and the

imposition of direct rule by London) unlike in Scotland and

Wales. Yet, at the time of writing, devolution has been

restored once again. Moreover, the cross-border i.e. North-

South institutions remain in place.

Now, can the Irish experience really be applied elsewhere?

IV. The Irish Model for Korea

412 Brigid Hadfield, Seeing it Through? The Multifaceted Implementation of the Belfast Agreement, in ASPECTS OF THE BELFAST AGREEMENT 84-106 (Rick Wilford, ed. 2001). 413 Police (Northern Ireland) Act, 2000, ch.32 (U.K.).

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The Irish model especially the process used in Northern

Ireland is relevant for conflicts in other parts of the

world. It can be tailored to a variety of situations.

Specifically for Korea, the model can be applied to the

standoff between the governments of North Korea and South

Korea.

For the first stage, the key difference is that the

political negotiations are essentially between just two

governments. Assuming each side has adequate support at

home, the process could, in theory at least, be easier than

the negotiations that preceded the Good Friday Agreement

because there are fewer political players in the overt

sense.414 Outside powers would have an interest in

development, but, unlike either the case with the

414 Certainly, though, both Korean governments should have some measure of domestic support to backup their respective positions in the negotiations.

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Six-Party Talks involving North Korea’s nuclear program415 or

the Two plus Four Talks416 surrounding German reunification,

outside powers would not need to be formally incorporated

except for the matter of a final peace treaty formally

ending the Korean War.417 So far there have been some

negotiations between the two Koreas that resulted in the

June 2000 Summit followed in December 2000 by a set of

agreements on

Inter-Korean economic cooperation.418

For the second stage, confidence building measures are

needed. Releasing any remaining political prisoners (in

415 The six parties are the two Koreas along with China, Russia, Japan, and the US. For some background on the talks, see Eric Yong-Joong Lee, The Six-Party Talks and the North Korean Nuclear Dispute Resolution Under the IAEA Safeguards Regime, 5 Asian-Pacific L. & Pol'y J. 101 (2004). See also, Yang Sung-chul, The Six-Party Talks and a New Beginning on the Korean Peninsula, 3 KOREA POLICY REVIEW 23 (April 2007). For yet another perspective, see Glenn D. Paige, Korean Leadership for Nonkilling East Asian Common Security, in NORTHEAST ASIA AND THE TWO KOREAS: METASTABILITY, SECURITY, AND COMMUNITY 303-326 (Hyung-Kook Kim et al, eds., 2008). 416 Two plus four refers to the two Germanys plus the USSR, the US, the UK, and France.417 China and the United States would need to be involved in such a peacetreaty because both countries were major combatants in the war along with the two Koreas. 418 Jhe Seong-Ho, Four Major Agreements on Inter-Korean Economic Cooperation: Legal Measures for Implementation 16 EAST ASIAN REVIEW 19 (Winter 2004). These agreements deal with investment protection, clearing settlement, double taxation, and the resolution of commercial disputes. Id., at 21-22.

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either North or South) and other detainees notably alleged

abductees (presumably just in the North) would be helpful to

the process. Increased family reunions for members of

divided families would also be highly advisable. Besides

the obvious humanitarian aspect of holding more family

reunions, having such regular person-to-person contacts can

help develop interactions between ordinary Koreans and build

grass roots support for closer political and economic ties

between the two Koreas and ultimately for reunification

itself.

Reducing the level of the respective military forces

deployed along either side of the DMZ would also be a major

confidence-building measure. Both Koreas have comparatively

large standing armies made up largely of conscripts. The

two Koreas devote significant portions of their respective

gross domestic products on military expenditure. In the

past, there have been periodic incidents at the DMZ

including exchanges of fire. Today the DMZ remains a

potential flashpoint. Moreover, the two Koreas technically

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remain in a state of war because a peace treaty formally

ending the Korean War has never been signed. What exists

now is merely a very long running truce governed by an

armistice agreement that dates from 1953. Certainly, a

final peace treaty would seem to be in order.

Specifically, legal changes could involve a proposal to

amend the South Korean Constitution to drop the territorial

claim on the North419 along with moves to amend or abolish

the National Security Law. For its part, North Korea could

also propose changes to its constitution like removing the

claim to represent the interests of all Koreans.420 Ideally,

the North Korean government could improve the human rights

situation within North Korea, which is generally regarded by

international nongovernmental organizations as being quite

poor especially when compared to the considerable progress

that South Korea has made in the field of human rights in

recent decades.

419 South Korean Const., art. 3. 420 North Korean Const., art. 1

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The third stage would entail amending the South Korean

Constitution pursuant to Article 130.421 This involves a

supermajority in the National Assembly and then a

referendum. Such a procedure would focus the public on

improving ties with the North with what might be a lively

debate within the parliament and in society at large. Such

process would be a historic step because until now the

people of South Korea have not had any direct say in efforts

at reconciliation with North Korea. A constitutional

referendum on this issue, if passed, would give some real

sense of degree of public support in the South for better

relations with the North. A strong mandate would be

desirable in light of the challenges involved.

Meanwhile, any changes to the North Korean Constitution

could simply be made by Supreme People’s Assembly pursuant

to Article 91.422 Under current political conditions in the

421 South Korean Const., art. 130.422 North Korean Const., art. 91. The Supreme People’s Assembly appears to have been originally inspired by the old Supreme Soviet of the formerSoviet Union.

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North, the Supreme People’s Assembly is almost certain to

approve anything that the top leadership proposes.

As the previous chapters suggest, these constitutional

changes are particularly important because of their symbolic

power and because they lay the groundwork for a kind of

constitutional patriotism that is needed. Truly ending the

lingering Cold War legal, political, military, social, and

economic structure on the Korean peninsula could be realized

in large part by means of such constitutional changes.

Habermasian constitutional patriotism, as was described in

Chapter 4, can play an important role in fostering Inter-

Korean reconciliation. Furthermore, constitutional

patriotism can ultimately support Korean reunification and

the establishment of a new era on the peninsula.

The fourth and final stage would be that of follow-up. This

might prove to be the most difficult stage. Certainly, the

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follow-up stage has been difficult in the Northern Ireland

Peace Process. Moreover, if we look at the recent history of

inter-Korean relations, we can see that there have been a

series of setbacks since the June 2000 Summit despite the

holding of a second summit in 2007. So, the stage of follow-

up after any Irish style negotiations would likely prove

difficult.

Despite on-going difficulties in its implementation, the

Northern Ireland Peace Process offers a possible model for

improving relations between North and South Korea.

Certainly, as I mentioned earlier, there are many

differences between the situation in Ireland and the

situation in Korea, but there are nevertheless lessons that

can be learned from what has been done in Ireland.

V. Conclusion

The Northern Ireland Peace Process involved at least four

different stages. A similar process with stages of

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political negotiations, confidence building measures, voter

involvement, and follow-up could be used in reducing

tensions and promoting peace on the Korean Peninsula.

Ultimately, it might even provide a useful guide for

addressing the Korean Problem.

The Irish model is essentially a pragmatic approach to

solving a problem that dates back several decades. Strictly

speaking it is not a model of reunification because Irish

reunification is by no means guaranteed under the Good

Friday Agreement. Rather, it is a way of promoting peace in

Northern Ireland along with better ties between Ireland and

the UK.

On the issue of territory, the Irish Constitution previously

did make a claim on Northern Ireland. The lack of a

constitutional territorial claim by West Germany did not

hinder speedy German reunification. Likewise, the dropping

of the territorial claim to Northern Ireland in the Irish

Constitution as part of the Northern Ireland Peace Process

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need not hinder reunification of the island someday.

Furthermore, the amended Irish Constitution might serve as

the basis for a new Irish civic national identity and pan-

Irish constitutional patriotism.

The amended version of the Irish Constitution represents a

possible model for South Korea. Following the Irish model

could improve inter-Korean ties and thereby ease tensions in

Northeast Asia without giving up on the goal of eventual

reunification of the peninsula. Also, it does not mean

ignoring the rights of North Koreans who wish to settle in

South Korea

Besides the territorial issue, the Irish model is relevant

for its overall pragmatic approach to intergovernmental

cooperation. The two Koreas could follow the Irish model in

settling up ways of coordinating public policy in various

areas like fisheries and tourism. Already there has been

some work on physical infrastructure like restoring rail and

road links between the two Koreas. There have also been

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efforts at protecting investments by South Korean businesses

in North Korean projects and providing for commercial

arbitration to resolve business disputes arising from such

projects.423 The Irish model would provide a more formal

structure wherein officials from both sides could meet on a

regular basis.

Other parts of the Irish model are also instructive.

Releasing any remaining political prisoners, for example,

would be an important confidence-building measure. In the

context of the Korean peninsula, this should be expanded to

include any other detainees or abductees that might still be

held.

Enhancing human rights is another important aspect. In both

Northern Ireland and the republic, Human Rights Commissions

were set up and new human rights laws were passed. Taken

423 For a look at the North Korean system of international commercial arbitration, see Kwang-Rok Kim, Settling Business Disputes with North Koreans in the Advent of the External Economic Arbitration Law, 16 Transnat'l Law. 401 (Spring 2003).

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together this created a new legal framework for the

protection of human rights island-wide.

This sort of initiative might prove much more difficult in

the Korean context given the current political realities,

but it would be an important step for ordinary Koreans from

either North or South. In this connection, it should be

noted that, unlike Europe or the Americas, Asia currently

lacks any sort of regional human rights court.

As important as all of these aspects of the Irish model are,

we should not lose sight of the significant symbolic role

that constitutions can play in the process of reunification.

Constitutions can provide a legal framework for historic

change. On another level, constitutions can also serve as

symbols of nationhood and foster a sense of Habermasian

constitutional patriotism. In the sixth and final chapter,

I will conclude by reflecting on how the Irish model,

including its constitutional dimensions, could help in

someday achieving Korean reunification.

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Chapter 6: Conclusion

I. Divided and Reunited

Today Korea is still not alone in being a divided nation.

Although some formerly divided nations have officially

reunified like Germany did on October 3, 1990, other divided

nations remain. Ireland, which was examined in detail in

this thesis, is a case in point.

As I have described in my thesis, there have been a number

of social and economic problems associated with German

reunification. Accordingly, many Koreans have begun to

wonder about the consequences of possible Korean

reunification especially if it is achieved in a rapid

fashion like Germany.

In my thesis I have argued that the Good Friday Agreement of

April 10, 1998, which resulted from the Northern Ireland

Peace Process, provides a suitable alternative legal and

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political model for easing tensions on the Korean Peninsula

with its emphasis on mutual respect, power sharing, and

pragmatism. The four basic stages of the peace process

namely, 1) negotiations involving all major political

players that can include proposals for constitutional

change, 2) confidence building measures from both sides of

the conflict that might have a constitutional dimension, 3)

popular support for negotiated constitutional change

especially as expressed directly in referenda or at least

indirectly in parliamentary elections and 4) follow-up are

instructive. They could be used in Korea as I discussed in

Chapter 5.

As I have discussed in this thesis especially in Chapter 4,

constitutions not only provide the framework for legal and

political systems, they have symbolic power that can be used

for grand projects. Such constitutional power was

successfully tapped in the Northern Ireland peace process.

The same could de done for Korea.

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Already the Good Friday Agreement has borne fruit in

Northern Ireland with a dramatic reduction in the level of

political violence in the province. Admittedly, there have

been problems along the way most notably with devolution in

Northern Ireland being suspended twice. Fortunately,

however, the St. Andrew’s Agreement of October 13, 2006

provided for a return to devolution, which was realized on

May 8, 2007.424 This has renewed hope for a peaceful future

for the province and the island as a whole. As I will show

below, the Irish model might even point the way towards

Korean reunification despite the fact that Ireland itself

remains divided.

II. Towards Reunification?

Reunification is not the stated objective of the Irish peace

process although some people in Northern Ireland and beyond

do see it as way to facilitate eventual Irish reunification.

However, for some participants in the process reunification

424 Northern Ireland (St. Andrews Agreement) Act, 2006, ch. 53 (U.K.); Northern Ireland (St. Andrews Agreement) Act, 2007, ch. 4 (U.K.).

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remains very much something to be avoided. For others still

the peace process might actually be seen as being an

obstacle to reunification. Regardless of the various

perspectives, the fact is that Northern Ireland remains in

union with the rest of UK even under the concept of

devolution.

A key to the Northern Ireland Peace Process has been the

recognition that certain basic conditions would have to be

met for reunification. Specifically, Ireland would be

reunified only peacefully and only with the democratic

consent of the majorities in both parts of Ireland.425

Although the current political situation on the Korean

Peninsula is very different from that on the island of

Ireland, one could reasonably maintain that Korea too should

only be reunified peacefully. Moreover, ideally the

majority of the population in each of the two Koreas should

indicate unequivocal support for reunification. This could

425 Const. of Ireland, art. 3.1. See also Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, art. 1. N.B. This agreement is a part of the Good Friday Agreement.

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be done by means of referenda.426 Holding either a

referendum or multiparty elections in North Korea would

obviously require historic change. This scenario further

assumes that North Korea does not suddenly collapse.

Nevertheless, such popular consent would arguably not be

required under international law.427 Be that as it may, it

might be a wise move politically because it would give the

Korean people a chance to determine their future.

Regardless of any considerations of international law,

obtaining popular consent in both Koreas would be desirable

because Korean reunification as a process of reuniting

ordinary North Koreans and South Koreans would almost

426 Referenda, however, were not used in the process of German reunification. Nevertheless, the victories of pro-reunification partiesin a series of elections in both Germanys indicated popular support for the case of reunification. 427 It has been maintained that there is no requirement under international law for a plebiscite to be held on the issue of a transferof national territory. ANTHONY CARTY, THE DECAY OF INTERNATIONAL LAW?: A REAPPRAISAL OF THE LIMITS OF LEGAL IMAGINATION IN INTERNATIONAL AFFARIS 56 (1986) (Melland Schill Monographs in International Law). State practice would appear to support this. For example, the UK returned the entire territory of its erstwhile crown colony of Hong Kongto China in 1997 even though technically only the lease on a part of Hong Kong was actually expiring in 1997. This transfer was done withoutany referendum. A similar handover took place in 1999 when Portugal returned Macau to China.

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certainly be more difficult than reuniting Ireland. People

throughout the island of Ireland can travel freely;

communicate with one another; and so on. Also, both parts of

the island share similar economic, legal, and political

institutions.

In fact, reuniting Korea would likely be even more difficult

than German reunification has proven to be in reuniting East

Germans and West Germans in light of the vast difference in

the legal, political, economic, and educational systems of

the two Koreas.428 Another factor is the relative size of

North Korea in terms of both population and de facto territory

vis-à-vis South Korea, which would make it more difficult

for South Korea to absorb North Korea than it was for West

Germany to absorb East Germany.

428 For a comparative study of the laws and legal systems of the two Koreas in English by a leading South Korean scholar, see generally CHONGKO CHOI, LAW AND JUSTICE IN KOREA: SOUTH AND NORTH [sic] (2005). Professor Choi has also written an important book in Korean on North Korean law. CHONGKO CHOI, BUKHANBEOP [NORTH KOREAN LAW] (2nd rev. ed. 2001). For a Western academic perspective on North Korean law, see Patricia Goedde, The Evolution and Challenges of the North Korean Legal System, 27 Fordham Int'l L.J. 1265 (April 2004).

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Socially, North Koreans and South Koreans have had virtually

no interaction with one another for more than half a

century. By contrast, during the 1970s and 1980s, millions

of West Germans visited East Germany, letters were mailed

between the two Germanys, TV broadcasts from both Germanys

could be received in many areas, and so on. In other words,

the peoples of the two Koreas are presently much further

apart socially than the peoples of the two Germanys were in

the late 1980s just before the process of German

reunification began. An indication of some of the

challenges that would face a reunified Korea can be gleaned

from the practical difficulties experienced by North Koreans

who have defected to South Korea in adjusting to life in a

Capitalist society.429

Korean reunification would have an impact on Northeast Asia

and beyond.430 However, there is no formal role for regional

429 KIM & LEE, supra note 34, at 281-319. 430 The likely impact of Korean reunification on Japan was explored in some depth in a conference held in Seoul during 1998 that was organized jointly by Yonsei University of South Korea and Keio University of Japan. JAPAN AND KOREAN UNIFICATION (Young-Sun Lee & Masao Okonogi, eds., Yonsei Series on Korean Unification Studies, no. 4, 1999).

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powers as there was with Germany under the Four Powers. The

nearest thing to that in the context of the Korean Peninsula

would be the Six-Party Talks held in Beijing on North

Korea’s nuclear program.

For years, some commentators in the West have been

predicting a sudden collapse of the North Korean state.431

So far, however, North Korea has defied such expectations.

The demise of the Soviet Union as well as the fall of

Communism in Eastern Europe and even in nearby Mongolia did

not lead to any major changes in North Korea’s system of

government. Indeed, Pyongyang has been wary of loosening

political controls in light of what happened elsewhere in

the late 1980s and early 1990s. North Korean famines may

have killed a large yet undetermined number of individuals

and encouraged others to flee the country, yet the regime

remains in place.432 China’s economic reforms have

431 See, e.g., ROBERT DUJARRIC, KOREAN UNIFICATION AND AFTER: CHALLENGES FOR U.S. STRATEGY 1-2 (2000). 432 During 1989, the flow of thousands of East Germans to Austria and then West Germany mostly via Czechoslovakia or Hungary was a factor in the eventual downfall of the GDR. See, e.g., RICHARD KIESSLER & FRANK ELBE, DER DIPLOMATISCHE WEG ZUR DEUTSCHEN EINHEIT 222-223

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apparently been studied by the leadership in Pyongyang, but

so far there has only been some tinkering with the North

Korean economic system.433 Any dramatic change involving a

dramatic opening to the outside world surely would call into

question the very existence of North Korea as a state.

Hence, the regime in Pyongyang has little incentive to enact

major economic let alone political reforms.434

Naturally, there is the possibility of “regime change”

brought about by American military action.435 With North

Korea being a state that has been frequently criticized by

American leaders, one cannot completely rule out a sudden

(1996). Yet, the North Korean refugee crisis has so far not had the sameimpact on North Korea. 433 For instance, there has been some limited experimentation with special economic zones in North Korea. Patricia Goedde, The Basic Law of theSiniju Special Administrative Region: A Happy Medium between the DPRK Constitution and Hong Kong Basic Law?, 3 J. Korean L. 77 (December 2003); Eric Yong-Joong Lee, The Special Economic Zones and North Korean Economic Reformation with a Viewpoint of International Law, 27 Fordham Int'l L.J. 1343 (April 2004).434 The top leadership in North Korea might also fear being someday prosecuted for grave human rights abuses. See generally KANG, supra note 374. 435 Jasper S. Kim & Brendan M. Howe, Pre-Emption Against Pyongyang: Is a Military Strike on the Korean Peninsula Legal? 4 J. KOREAN L. 123 (August 2004). See also Matthew Klapper, The Bush Doctrine and North Korea, ACROSS BORDERS GONZ. INT’LL. J. 13 (2005) http://www.across-borders.com/Articles/Klapper/index.htm. If the North Korean regime were to be ousted, then the top leadership could face

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collapse directly caused by Washington. However, the price

in blood as well as dollars would probably be high even

assuming the unlikely scenario in which China, Russia,

Japan, and South Korea were all more or less willing to

permit an American invasion of North Korea. Meanwhile, the

official North Korean position has long been a defiant one.

The leadership has declared that its Socialist system will

not collapse due to any outside pressure.436

III. Beyond reunification

Assuming that Korea is reunified someday, a new national

identity will be needed. In this age of globalization, a

cosmopolitan (or even “post-national”) form of civic

nationalism is more fitting than old fashioned ethno-

nationalism. A Habermasian constitutional patriotism, which

comes from and supports a charter that guarantees democracy

and protects human rights, is the key. A type of pan-Korean

436 See, e.g., Li Sam Ro, The Reunification of Korea and Peace and Security in Asia, in KOREAN UNIFICATION: IMPLICATIONS FOR NORTHEAST ASIA 29-34 (1993) (Significant Issues Series).

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constitutional patriotism could be the basis for a new

reunited Korean identity.

In the future, Koreans, with the experience of reunification

behind them, might also play a major role in someday forging

a truly pan-Asian identity.437 Perhaps such a pan-Asian

identity would be along the lines of the pan-European

identity that Habermas seeks in his vision of the future

role of the EU.

437 For some thoughts on Asian identities, see Amitav Acharya, The ImaginedCommunity of East Asia, in NORTHEAST ASIA AND THE TWO KOREAS: METASTABILITY, SECURITY, AND COMMUNITY 327-343 (Hyung-Kook Kim et al, eds., 2008).

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