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
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.
3
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].
15
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.
19
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?
24
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.
38
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.
45
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).
51
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].
52
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.
54
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….”
57
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).
62
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.
83
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.
84
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.
88
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.
89
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.).
90
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
91
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.
92
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,
93
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.
94
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
99
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.
101
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
176
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.
193
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).
198
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).
207
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
208
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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